CHAPTER VI

ON THE ENGLISH CONSTITUTION UNDER JAMES I

_Quiet accession of James._--It might afford an illustration of the

fallaciousness of political speculations, to contrast the hopes and

inquietudes that agitated the minds of men concerning the inheritance of

the Crown during Elizabeth's lifetime, while not less than fourteen

titles were idly or mischievously reckoned up, with the perfect

tranquillity that accompanied the accession of her successor.[464] The

house of Suffolk, whose claim was legally indisputable, if we admit the

testament of Henry VIII. to have been duly executed, appear, though no

public enquiry had been made into that fact, to have lost ground in

popular opinion, partly through an unequal marriage of Lord Beauchamp

with a private gentleman's daughter, but still more from a natural

disposition to favour the hereditary line rather than the capricious

disposition of a sovereign long since dead, as soon as it became

consistent with the preservation of the reformed faith. Leicester once

hoped, it is said, to place his brother-in-law, the Earl of Huntingdon,

descended from the Duke of Clarence, upon the throne; but this

pretension had been entirely forgotten. The more intriguing and violent

of the catholic party, after the death of Mary, entertaining little hope

that the King of Scots would abandon the principles of his education,

sought to gain support to a pretended title in the King of Spain, or his

daughter the infanta, who afterwards married the Archduke Albert,

governor of the Netherlands. Others, abhorring so odious a claim, looked

to Arabella Stuart, daughter of the Earl of Lennox, younger brother of

James's father, and equally descended from the stock of Henry VII.,

sustaining her manifest defect of primogeniture by her birth within the

realm, according to the principle of law that excluded aliens from

inheritance. But this principle was justly deemed inapplicable to the

Crown. Clement VIII., who had no other view than to secure the

re-establishment of the catholic faith in England, and had the judgment

to perceive that the ascendency of Spain would neither be endured by the

nation, nor permitted by the French king, favoured this claim of

Arabella, who though apparently of the reformed religion, was rather

suspected at home of wavering in her faith; and entertained a hope of

marrying her to the Cardinal Farnese, brother of the Duke of Parma.[465]

Considerations of public interest, however, unequivocally pleaded for

the Scottish line; the extinction of long sanguinary feuds, and the

consolidation of the British empire, Elizabeth herself, though by no

means on terms of sincere friendship with James, and harassing him by

intrigues with his subjects to the close of her life, seems to have

always designed that he should inherit her crown. And the general

expectation of what was to follow, as well from conviction of his right

as from the impracticability of any effectual competition, had so

thoroughly paved the way, that the council's proclamation of the King of

Scots excited no more commotion than that of an heir apparent.[466]

_Question of his title to the crown._--The popular voice in favour of

James was undoubtedly raised in consequence of a natural opinion that he

was the lawful heir to the throne. But this was only according to vulgar

notions of right, which respect hereditary succession as something

indefeasible. In point of fact, it is at least very doubtful whether

James I. or any of his posterity were legitimate sovereigns, according

to the sense which that word ought properly to bear. The house of Stuart

no more came in by a clear title than the house of Brunswick; by such a

title, I mean, as the constitution and established laws of this kingdom

had recognised. No private man could have recovered an acre of land

without proving a better right than they could make out to the Crown of

England. What then had James to rest upon? What renders it absurd to

call him and his children usurpers? He had that which the flatterers of

his family most affected to disdain, the will of the people; not

certainly expressed in regular suffrage or declared election, but

unanimously and voluntarily ratifying that which in itself could surely

give no right, the determination of the late queen's council to proclaim

his accession to the throne.

It is probable that what has been just said may appear rather

paradoxical to those who have not considered this part of our history;

yet it is capable of satisfactory proof. This proof consists of four

propositions: 1. That a lawful king of England, with the advice and

consent of parliament, may make statutes to limit the inheritance of the

Crown as shall seem fit;--2. That a statute passed in the 35th year of

King Henry VIII. enabled that prince to dispose of the succession by his

last will signed with his own hand;--3. That Henry executed such a will,

by which, in default of issue from his children, the Crown was entailed

upon the descendants of his younger sister Mary, Duchess of Suffolk,

before those of Margaret, Queen of Scots;--4. That such descendants of

Mary were living at the decease of Elizabeth.

Of these propositions, the two former can require no support; the first

being one that it would be perilous to deny, and the second asserting a

notorious fact. A question has, however, been raised with respect to the

third proposition; for though the will of Henry, now in the

chapter-house at Westminster, is certainly authentic, and is attested by

many witnesses, it has been doubted whether the signature was made with

his own hand, as required by the act of parliament. In the reign of

Elizabeth, it was asserted by the Queen of Scots' ministers, that the

king being at the last extremity, some one had put a stamp for him to

the instrument. It is true, that he was in the latter part of his life

accustomed to employ a stamp instead of making his signature. Many

impressions of this are extant; but it is evident on the first

inspection, not only that the presumed autographs in the will (for there

are two) are not like these impressions, but that they are not the

impressions of any stamp, the marks of the pen being very clearly

discernible.[467] It is more difficult to pronounce that they may not be

feigned; but such is not the opinion of some who are best acquainted

with Henry's handwriting;[468] and what is still more to the purpose,

there is no pretence for setting up such a possibility, when the story

of the stamp, as to which the partisans of Mary pretended to adduce

evidence, appears so clearly to be a fabrication. We have therefore

every reasonable ground to maintain, that Henry did duly execute a will,

postponing the Scots line to that of Suffolk.

The fourth proposition is in itself undeniable. There were descendants

of Mary, Duchess of Suffolk, by her two daughters, Frances, second

Duchess of Suffolk, and Eleanor, Countess of Cumberland. A story had

indeed been circulated that Charles Brandon, Duke of Suffolk, was

already married to a lady of the name of Mortimer at the time of his

union with the king's sister. But this circumstance seems to be

sufficiently explained in the treatise of Hales.[469] It is somewhat

more questionable, from which of his two daughters we are to derive the

hereditary stock. This depends on the legitimacy of Lord Beauchamp, son

of the Earl of Hertford by Catherine Grey. I have mentioned in another

place the process before a commission appointed by Elizabeth, which

ended in declaring that their marriage was not proved, and that their

cohabitation had been illicit. The parties alleged themselves to have

been married clandestinely in the Earl of Hertford's house, by a

minister whom they had never before seen, and of whose name they were

ignorant, in the presence only of a sister of the earl, then deceased.

This entire absence of testimony, and the somewhat improbable nature of

the story, at least in appearance, may still perhaps leave a shade of

doubt as to the reality of the marriage. On the other hand, it was

unquestionable that their object must have been a legitimate union; and

such a hasty and furtive ceremony as they asserted to have taken place,

while it would, if sufficiently proved, be completely valid, was

necessary to protect them from the queen's indignation. They were

examined separately upon oath to answer a series of the closest

interrogatories, which they did with little contradiction, and a perfect

agreement in the main; nor was any evidence worth mentioning adduced on

the other side; so that, unless the rules of the ecclesiastical law are

scandalously repugnant to common justice, their oaths entitled them to

credit on the merits of the case.[470] The Earl of Hertford, soon after

the tranquil accession of James, having long abandoned all ambitious

hopes, and seeking only to establish his children's legitimacy and the

honour of one who had been the victim of their unhappy loves, petitioned

the king for a review of the proceedings, alleging himself to have

vainly sought this at the hands of Elizabeth. It seems probable, though

I have not met with any more distinct proof of it than a story in

Dugdale, that he had been successful in finding the person who

solemnised the marriage.[471] A commission of delegates was accordingly

appointed to investigate the allegations of the earl's petition. But the

jealousy that had so long oppressed this unfortunate family was not yet

at rest. Questions seem to have been raised as to the lapse of time and

other technical difficulties, which served as a pretext for coming to no

determination on the merits.[472] Hertford, or rather his son, not long

after, endeavoured indirectly to bring forward the main question by

means of a suit for some lands against Lord Monteagle. This is said to

have been heard in the court of wards, where a jury was impanelled to

try the fact. But the law officers of the Crown interposed to prevent a

verdict, which, though it could not have been legally conclusive upon

the marriage, would certainly have given a sanction to it in public

opinion.[473] The house of Seymour was now compelled to seek a renewal

of their honours by another channel. Lord Beauchamp, as he had uniformly

been called, took a grant of the barony of Beauchamp, and another of the

earldom of Hertford, to take effect upon the death of the earl, who is

not denominated his father in the patent.[474] But after the return of

Charles II., in the patent restoring this Lord Beauchamp's son to the

dukedom of Somerset, he is recited to be heir male of the body of the

first duke by his wife Anne, which establishes (if the recital of a

private act of parliament can be said to establish anything) the

validity of the disputed marriage.[475]

The descent from Eleanor, the younger daughter of Mary Brandon, who

married the Earl of Cumberland, is subject to no difficulties. She left

an only daughter, married to the Earl of Derby, from whom the claim

devolved again upon females, and seems to have attracted less notice

during the reign of Elizabeth than some others much inferior in

plausibility. If any should be of opinion that no marriage was regularly

contracted between the Earl of Hertford and Lady Catherine Grey, so as

to make their children capable of inheritance, the title to the Crown,

resulting from the statute of 35 H. 8 and the testament of that prince,

will have descended, at the death of Elizabeth, on the issue of the

Countess of Cumberland, the youngest daughter of the Duchess of Suffolk,

Lady Frances Keyes, having died without issue.[476] In neither case

could the house of Stuart have a lawful claim. But I may, perhaps, have

dwelled too long on a subject which, though curious and not very

generally understood, can be of no sort of importance, except as it

serves to cast ridicule upon those notions of legitimate sovereignty and

absolute right, which it was once attempted to set up as paramount even

to the great interests of a commonwealth.

There is much reason to believe that the consciousness of this defect in

his parliamentary title put James on magnifying, still more than from

his natural temper he was prone to do, the inherent rights of

primogenitary succession, as something indefeasible by the legislature;

a doctrine which, however it might suit the schools of divinity, was in

diametrical opposition to our statutes.[477] Through the servile spirit

of those times, however, it made a rapid progress; and, interwoven by

cunning and bigotry with religion, became a distinguishing tenet of the

party who encouraged the Stuarts to subvert the liberties of this

kingdom. In James's proclamation on ascending the throne, he sets forth

his hereditary right in pompous and perhaps unconstitutional phrases. It

was the first measure of parliament to pass an act of recognition,

acknowledging that, immediately on the decease of Elizabeth, "the

imperial crown of the realm of England did by inherent birthright, and

lawful and undoubted succession, descend and come to his most excellent

majesty, as being lineally, justly, and lawfully, next and sole heir of

the blood royal of this realm."[478] The will of Henry VIII. it was

tacitly agreed by all parties to consign to oblivion: and this most

wisely, not on the principles which seem rather too much insinuated in

this act of recognition, but on such substantial motives of public

expediency as it would have shown an equal want of patriotism and of

good sense for the descendants of the house of Suffolk to have

withstood.

James left a kingdom where his authority was incessantly thwarted and

sometimes openly assailed, for one wherein the royal prerogative had for

more than a century been strained to a very high pitch, and where there

had not occurred for above thirty years the least appearance of

rebellion and hardly of tumult. Such a posture of the English

commonwealth, as well as the general satisfaction testified at his

accession, seemed favourable circumstances to one who entertained, with

less disguise if not with more earnestness than most other sovereigns,

the desire of reigning with as little impediment as possible to his own

will. Yet some considerations might have induced a prince who really

possessed the king-craft wherein James prided himself, to take his

measures with caution. The late queen's popularity had remarkably abated

during her last years.[479] It is a very common delusion of royal

personages to triumph in the people's dislike of those into whose place

they expect shortly to come, and to count upon the most transitory of

possessions, a favour built on hopes that they cannot realise and

discontents that they will not assuage. If Elizabeth lost a great deal

of that affection her subjects had entertained for her, this may be

ascribed, not so much to Essex's death, though that no doubt had its

share, as to weightier taxation, to some oppressions of her government,

and above all to her inflexible tenaciousness in every point of

ecclesiastical discipline. It was the part of a prudent successor to

preserve an undeviating economy, to remove without repugnance or delay

the irritations of monopolies and purveyance, and to remedy those

alleged abuses in the church, against which the greater and stronger

part of the nation had so long and so loudly raised its voice.

_Early unpopularity of the king._--The new king's character,

notwithstanding the vicinity of Scotland, seems to have been little

understood by the English at his accession. But he was not long in

undeceiving them, if it be true that his popularity had vanished away

before his arrival in London.[480] The kingdom was full of acute wits

and skilful politicians, quick enough to have seen through a less

unguarded character than that of James. It was soon manifest that he was

unable to wield the sceptre of the great princess whom he ridiculously

affected to despise,[481] so as to keep under that rising spirit, which

might perhaps have grown too strong even for her control. He committed

an important error in throwing away the best opportunity that had

offered itself for healing the wounds of the church of England. In his

way to London, the malcontent clergy presented to him what was commonly

called the Millenary Petition, as if signed by 1000 ministers, though

the real number was not so great.[482] This petition contained no demand

inconsistent with the established hierarchy, nor, as far as I am aware,

which might not have been granted without inconvenience. James, however,

who had not unnaturally taken an extreme disgust at the presbyterian

clergy of his native kingdom, by whom his life had been perpetually

harassed, showed no disposition to treat these petitioners with

favour.[483] The bishops had promised him an obsequiousness to which he

had been little accustomed, and a zeal to enhance his prerogative which

they afterwards too well displayed. His measures towards the

nonconformist party had evidently been resolved upon before he summoned

a few of their divines to the famous conference at Hampton Court. In the

accounts that we read of this meeting, we are alternately struck with

wonder at the indecent and partial behaviour of the king, and at the

abject baseness of the bishops, mixed, according to the custom of

servile natures, with insolence towards their opponents.[484] It was

easy for a monarch and eighteen churchmen to claim the victory, be the

merits of their dispute what they might, over four abashed and

intimidated adversaries.[485] A very few alterations were made in the

church service after this conference, but not of such moment as to

reconcile probably a single minister to the established discipline.[486]

The king soon afterwards put forth a proclamation, requiring all

ecclesiastical and civil officers to do their duty by enforcing

conformity, and admonishing all men not to expect nor attempt any

further alteration in the public service; for "he would neither let any

presume that his own judgment, having determined in a matter of this

weight, should be swayed to alteration by the frivolous suggestions of

any light spirit, nor was he ignorant of the inconvenience of admitting

innovation in things once settled by mature deliberation."[487] And he

had already strictly enjoined the bishops to proceed against all their

clergy who did not observe the prescribed order;[488] a command which

Bancroft, who about this time followed Whitgift in the primacy, did not

wait to have repeated. But the most enormous outrage on the civil rights

of these men was the commitment to prison of ten among those who had

presented the Millenary Petition; the judges having declared in the

star-chamber, that it was an offence finable at discretion, and very

near to treason and felony, as it tended to sedition and rebellion.[489]

By such beginnings did the house of Stuart indicate the course it would

steer.

An entire year elapsed, chiefly on account of the unhealthiness of the

season in London, before James summoned his first parliament. It might

perhaps have been more politic to have chosen some other city; for the

length of this interval gave time to form a disadvantageous estimate of

his administration and to alienate beyond recovery the puritanical

party. Libels were already in circulation, reflecting with a sharpness

never before known on the king's personal behaviour, which presented an

extraordinary contrast to that of Elizabeth.[490] The nation, it is easy

to perceive, cheated itself into a persuasion, that it had borne that

princess more affection than it had really felt, especially in her

latter years; the sorrow of subjects for deceased monarchs being often

rather inspired by a sense of evil than a recollection of good. James

however little heeded the popular voice, satisfied with the fulsome and

preposterous adulation of his court, and intent on promulgating certain

maxims concerning the dignity and power of princes, which he had already

announced in his discourse on the "True Law of Free Monarchies," printed

some years before in Scotland. In this treatise, after laying it down

that monarchy is the true pattern of divinity, and proving the duty of

passive obedience, rather singularly, from that passage in the book of

Samuel where the prophet so forcibly paints the miseries of absolute

power, he denies that the kings of Scotland owe their crown to any

primary contract, Fergus, their progenitor, having conquered the country

with his Irish; and advances more alarming tenets, as that the king

makes daily statutes and ordinances enjoining such pains thereto as he

thinks meet, without any advice of parliament or estates; that general

laws made publicly in parliament may by the king's authority be

mitigated or suspended upon causes only known to him; and that,

"although a good king will frame all his actions to be according to the

law, yet he is not bound thereto, but of his own will and for

example-giving to his subjects."[491] These doctrines, if not absolutely

novel, seemed peculiarly indecent as well as dangerous, from the mouth

of a sovereign. Yet they proceeded far more from James's self-conceit

and pique against the republican spirit of presbyterianism than from his

love of power, which (in its exercise I mean, as distinguished from its

possession) he did not feel in so eminent a degree as either his

predecessor or his son.

In the proclamation for calling together his first parliament, the king,

after dilating, as was his favourite practice, on a series of rather

common truths in very good language, charges all persons interested in

the choice of knights for the shire to select them out of the principal

knights or gentlemen within the county; and for the burgesses, that

choice be made of men of sufficiency and discretion, without desire to

please parents and friends, that often speak for their children or

kindred; avoiding persons noted in religion for their superstitious

blindness one way, or for their turbulent humour other ways. We do

command, he says, that no bankrupts or outlaws be chosen, but men of

known good behaviour and sufficient livelihood. The sheriffs are charged

not to direct a writ to any ancient town being so ruined that there are

not residents sufficient to make such choice, and of whom such lawful

election may be made. All returns are to be filed in chancery, and if

any be found contrary to this proclamation, the same to be rejected as

unlawful and insufficient, and the place to be fined for making it; and

any one elected contrary to the purport, effect, and true meaning of

this proclamation, to be fined and imprisoned.[492]

_Question of Fortescue and Goodwin's election._--Such an assumption of

control over parliamentary elections was a glaring infringement of

those privileges which the House of Commons had been steadily and

successfully asserting in the late reign. An opportunity very soon

occurred of contesting this important point. At the election for the

county of Buckingham, Sir Francis Goodwin had been chosen in preference

to Sir John Fortescue, a privy counsellor, and the writ returned into

chancery. Goodwin having been some years before outlawed, the return was

sent back to the sheriff, as contrary to the late proclamation; and, on

a second election, Sir John Fortescue was chosen. This matter being

brought under the consideration of the House of Commons, a very few days

after the opening of the session, gave rise to their first struggle with

the new king. It was resolved, after hearing the whole case, and

arguments by members on both sides, that Goodwin was lawfully elected

and returned, and ought to be received. The first notice taken of this

was by the Lords, who requested that this might be discussed in a

conference between the two houses, before any other matter should be

proceeded in. The Commons returned for answer, that they conceived it

not according to the honour of the house to give account of any of their

proceedings. The Lords replied, that having acquainted his majesty with

the matter, he desired there might be a conference thereon between the

two houses. Upon this message, the Commons came to a resolution that the

speaker with a numerous deputation of members should attend his majesty,

and report the reasons of their proceedings in Goodwin's case. In this

conference with the king, as related by the speaker, it appears that he

had shown some degree of chagrin, and insisted that the house ought not

to meddle with returns, which could only be corrected by the court of

chancery; and that since they derived all matters of privilege from him

and his grant, he expected they should not be turned against him. He

ended by directing the house to confer with the judges. After a debate

which seems, from the minutes in the journals, to have been rather warm,

it was unanimously agreed not to have a conference with the judges; but

the reasons of the house's proceeding were laid before the king in a

written statement or memorial, answering the several objections that his

majesty had alleged. This they sent to the Lords, requesting them to

deliver it to the king, and to be mediators in behalf of the house for

his majesty's satisfaction; a message in rather a lower tone than they

had previously taken. The king sending for the speaker privately, told

him that he was now distracted in judgment as to the merits of the

case; and for his further satisfaction, desired and commanded, as an

absolute king, that there should be a conference between the house and

the judges. Upon this unexpected message, says the journal, there grew

some amazement and silence. But at last one stood up and said: "The

prince's command is like a thunderbolt; his command upon our allegiance

like the roaring of a lion. To his command there is no contradiction;

but how or in what manner we should now proceed to perform obedience,

that will be the question."[493] It was resolved to confer with the

judges in presence of the king and council. In this second conference,

the king, after some favourable expressions towards the house, and

conceding that it was a court of record, and judge of returns, though

not exclusively of the chancery, suggested that both Goodwin and

Fortescue should be set aside, by issuing a new writ. This compromise

was joyfully accepted by the greater part of the Commons, after the

dispute had lasted nearly three weeks.[494] They have been considered as

victorious, upon the whole, in this contest, though they apparently fell

short in the result of what they had obtained some years before. But no

attempt was ever afterwards made to dispute their exclusive

jurisdiction.[495]

_Shirley's case of privilege._--The Commons were engaged during this

session in the defence of another privilege, to which they annexed

perhaps a disproportionate importance. Sir Thomas Shirley, a member,

having been taken in execution on a private debt before their meeting,

and the warden of the Fleet prison refusing to deliver him up, they were

at a loss how to obtain his release. Several methods were projected;

among which, that of sending a party of members with the serjeant and

his mace, to force open the prison, was carried on a division; but the

speaker hinting that such a vigorous measure would expose them

individually to prosecution as trespassers, it was prudently abandoned.

The warden, though committed by the house to a dungeon in the Tower,

continued obstinate, conceiving that by releasing his prisoner he

should become answerable for the debt. They were evidently reluctant to

solicit the king's interference; but aware at length that their own

authority was insufficient, "the vice-chamberlain, according to a

memorandum in the journals, was privately instructed to go to the king,

and humbly desire that he would be pleased to command the warden, on his

allegiance, to deliver up Sir Thomas; not as petitioned for by the

house, but as if himself thought it fit, out of his own gracious

judgment." By this stratagem, if we may so term it, they saved the point

of honour, and recovered their member.[496] The warden's apprehensions,

however, of exposing himself to an action for the escape gave rise to a

statute, which empowers the creditor to sue out a new execution against

any one who shall be delivered by virtue of his privilege of parliament,

after that shall have expired, and discharges from liability those out

of whose custody such persons shall be delivered. This is the first

legislative recognition of privilege.[497] The most important part of

the whole is a proviso subjoined to the act, "That nothing therein

contained shall extend to the diminishing of any punishment to be

hereafter, by censure in parliament, inflicted upon any person who

hereafter shall make or procure to be made any such arrest as is

aforesaid." The right of commitment, in such cases at least, by a vote

of the House of Commons, is here unequivocally maintained.

_Complaints of grievances._--It is not necessary to repeat the

complaints of ecclesiastical abuses preferred by this House of Commons,

as by those that had gone before them. James, by siding openly with the

bishops, had given alarm to the reforming party. It was anticipated that

he would go farther than his predecessor, whose uncertain humour, as

well as the inclinations of some of her advisers, had materially

counterbalanced the dislike she entertained of the innovators. A code of

new canons had recently been established in convocation with the king's

assent, obligatory perhaps upon the clergy, but tending to set up an

unwarranted authority over the whole nation; imposing oaths and exacting

securities in certain cases from the laity, and aiming at the exclusion

of nonconformists from all civil rights.[498] Against these canons, as

well as various other grievances, the Commons remonstrated in a

conference with the upper house, but with little immediate effect.[499]

They made a more remarkable effort in attacking some public mischiefs of

a temporal nature, which, though long the theme of general murmurs, were

closely interwoven with the ancient and undisputed prerogatives of the

Crown. Complaints were uttered, and innovations projected by the Commons

of 1604, which Elizabeth would have met with an angry message, and

perhaps visited with punishment on the proposers. James however was not

entirely averse to some of the projected alterations, from which he

hoped to derive a pecuniary advantage. The two principal grievances

were, purveyance and the incidents of military tenure. The former had

been restrained by not less than thirty-six statutes, as the Commons

assert in a petition to the king; in spite of which the impressing of

carts and carriages, and the exaction of victuals for the king's use, at

prices far below the true value, and in quantity beyond what was

necessary, continued to prevail under authority of commissions from the

board of green cloth, and was enforced, in case of demur or resistance,

by imprisonment under their warrant. The purveyors, indeed, are

described as living at free quarters upon the country, felling woods

without the owners' consent, and commanding labour with little or no

recompense.[500] Purveyance was a very ancient topic of remonstrance;

but both the inadequate revenues of the Crown, and a supposed dignity

attached to this royal right of spoil, had prevented its abolition from

being attempted. But the Commons seemed still more to trench on the

pride of our feudal monarchy, when they proposed to take away

guardianship in chivalry; that lucrative tyranny, bequeathed by Norman

conquerors, the custody of every military tenant's estate until he

should arrive at twenty-one, without accounting for the profits. This,

among other grievances, was referred to a committee, in which Bacon took

an active share. They obtained a conference on this subject with the

Lords, who refused to agree to a bill for taking guardianship in

chivalry away, but offered to join in a petition for that purpose to

the king, since it could not be called a wrong, having been patiently

endured by their ancestors as well as themselves, and being warranted by

the law of the land. In the end the Lords advised to drop the matter for

the present, as somewhat unseasonable in the king's first

parliament.[501]

In the midst of these testimonies of dissatisfaction with the civil and

ecclesiastical administration, the House of Commons had not felt much

willingness to greet the new sovereign with a subsidy. No demand had

been made upon them, far less any proof given of the king's exigencies;

and they doubtless knew by experience, that an obstinate determination

not to yield to any of their wishes would hardly be shaken by a liberal

grant of money. They had even passed the usual bill granting tonnage and

poundage for life, with certain reservations that gave the court

offence, and which apparently they afterwards omitted. But there was so

little disposition to do anything further, that the king sent a message

to express his desire that the Commons would not enter upon the business

of a subsidy, and assuring them that he would not take unkindly their

omission. By this artifice, which was rather transparent, he avoided the

not improbable mortification of seeing the proposal rejected.[502]

_Commons' vindication of themselves._--The king's discontent at the

proceedings of this session, which he seems to have rather strongly

expressed in some speech to the Commons that has not been recorded,[503]

gave rise to a very remarkable vindication, prepared by a committee at

the house's command, and entitled "A Form of Apology and Satisfaction to

be delivered to his Majesty," though such may not be deemed the most

appropriate title. It contains a full and pertinent justification of all

those proceedings at which James had taken umbrage, and asserts, with

respectful boldness and in explicit language, the constitutional rights

and liberties of parliament. If the English monarchy had been reckoned

as absolute under the Plantagenets and Tudors as Hume has endeavoured to

make it appear, the Commons of 1604 must have made a surprising advance

in their notions of freedom since the king's accession. Adverting to

what they call the misinformation openly delivered to his majesty in

three things; namely, that their privileges were not of right, but of

grace only, renewed every parliament on petition; that they are no court

of record, nor yet a court that can command view of records; that the

examination of the returns of writs for knights and burgesses is without

their compass, and belonging to the chancery: assertions, they say,

"tending directly and apparently to the utter overthrow of the very

fundamental privileges of our house, and therein of the rights and

liberties of the whole Commons of your realm of England, which they and

their ancestors, from time immemorial, have undoubtedly enjoyed under

your majesty's most noble progenitors;" and against which they expressly

protest, as derogatory in the highest degree to the true dignity and

authority of parliament, desiring "that such their protestation might be

recorded to all posterity;" they maintain, on the contrary, "1. That

their privileges and liberties are their right and inheritance, no less

than their very lands and goods; 2. That they cannot be withheld from

them, denied or impaired, but with apparent wrong to the whole state of

the realm; 3. That their making request, at the beginning of a

parliament, to enjoy their privilege, is only an act of manners, and

does not weaken their right; 4. That their house is a court of record,

and has been ever so esteemed; 5. That there is not the highest standing

court in this land that ought to enter into competition, either for

dignity or authority, with this high court of parliament, which, with

his majesty's royal assent, gives law to other courts, but from other

courts receives neither laws nor orders; 6. That the House of Commons is

the sole proper judge of return of all such writs, and the election of

all such members as belong to it, without which the freedom of election

were not entire." They aver that in this session the privileges of the

house have been more universally and dangerously impugned than ever, as

they suppose, since the beginnings of parliaments. That in regard to the

late queen's sex and age, and much more upon care to avoid all trouble,

which by wicked practice might have been drawn to impeach the quiet of

his majesty's right in the succession, those actions were then passed

over which they hoped in succeeding times to redress and rectify;

whereas, on the contrary, in this parliament, not privileges, but the

whole freedom of the parliament and realm had been hewed from them.

"What cause," they proceed, "we, your poor Commons, have to watch over

our privileges is manifest in itself to all men. The prerogatives of

princes may easily and do daily grow. The privileges of the subject are

for the most part at an everlasting stand. They may be by good

providence and care preserved; but being once lost, are not recovered

but with much disquiet." They then enter in detail on the various

matters that had arisen during the session--the business of Goodwin's

election, of Shirley's arrest, and some smaller matters of privilege to

which my limits have not permitted me to allude. "We thought not,"

speaking of the first, "that the judge's opinion, which yet in due place

we greatly reverence, being delivered what the common law was, which

extends only to inferior and standing courts, ought to bring any

prejudice to this high court of parliament, whose power being above the

law is not founded on the common law, but have their rights and

privileges peculiar to themselves." They vindicate their endeavours to

obtain redress of religious and public grievances: "Your majesty would

be misinformed," they tell him, "if any man should deliver that the

kings of England have any absolute power in themselves, either to alter

religion, which God defend should be in the power of any mortal man

whatsoever, or to make any laws concerning the same, otherwise than as

in temporal causes, by consent of parliament. We have and shall at all

times by our oaths acknowledge, that your majesty is sovereign lord and

supreme governor in both."[504] Such was the voice of the English

Commons in 1604, at the commencement of that great conflict for their

liberties, which is measured by the line of the house of Stuart. But it

is not certain that this apology was ever delivered to the king, though

he seems to allude to it in a letter written to one of his ministers

about the same time.[505]

_Session_, 1605.--The next session, which is remarkable on account of

the conspiracy of some desperate men to blow up both Houses of

Parliament with gunpowder on the day of their meeting, did not produce

much worthy of our notice. A bill to regulate, or probably to suppress,

purveyance was thrown out by the Lords. The Commons sent up another bill

to the same effect, which the upper house rejected without discussion,

by a rule then perhaps first established, that the same bill could not

be proposed twice in one session.[506] They voted a liberal subsidy,

which the king, who had reigned three years without one, had just cause

to require. For though he had concluded a peace with Spain soon after

his accession, yet the late queen had left a debt of L400,000, and other

charges had fallen on the Crown. But the bill for this subsidy lay a

good while in the House of Commons, who came to a vote that it should

not pass till their list of grievances was ready to be presented. No

notice was taken of these till the next session beginning in November

1606, when the king returned an answer to each of the sixteen articles

in which matters of grievance were alleged. Of these the greater part

refer to certain grants made to particular persons in the nature of

monopolies; the king either defending these in his answer, or remitting

the parties to the courts of law to try their legality.

_Union with Scotland debated._--The principal business of this third

session, as it had been of the last, was James's favourite scheme of a

perfect union between England and Scotland. It may be collected, though

this was never explicitly brought forward, that his views extended to a

legislative incorporation.[507] But in all the speeches on this subject,

and especially his own, there is a want of distinctness as to the object

proposed. He dwells continually upon the advantage of unity of laws, yet

extols those of England as the best, which the Scots, as was evident,

had no inclination to adopt. Wherefore then was delay to be imputed to

our English parliament, if it waited for that of the sister kingdom? And

what steps were recommended towards this measure, that the Commons can

be said to have declined, except only the naturalisation of the

ante-nati, or Scots born before the king's accession to our throne,

which could only have a temporary effect?[508] Yet Hume, ever prone to

eulogise this monarch at the expense of his people, while he bestows

merited praise on his speech in favour of the union, which is upon the

whole a well-written and judicious performance, charges the parliament

with prejudice, reluctance, and obstinacy. The code, as it may be

called, of international hostility, those numerous statutes treating the

northern inhabitants of this island as foreigners and enemies, were

entirely abrogated. And if the Commons, while both the theory of our own

constitution was so unsettled and its practice so full of abuse, did not

precipitately give in to schemes that might create still further

difficulty in all questions between the Crown and themselves, schemes,

too, which there was no imperious motive for carrying into effect at

that juncture, we may justly consider it as an additional proof of their

wisdom and public spirit. Their slow progress however in this favourite

measure, which, though they could not refuse to entertain it, they

endeavoured to defeat by interposing delays and impediments, gave much

offence to the king, which he expressed in a speech to the two houses,

with the haughtiness, but not the dignity, of Elizabeth. He threatened

them to live alternately in the two kingdoms, or to keep his court at

York; and alluded, with peculiar acrimony, to certain speeches made in

the house, wherein probably his own fame had not been spared.[509] "I

looked," he says, "for no such fruits at your hands, such personal

discourses and speeches, which of all other, I looked you should avoid,

as not beseeming the gravity of your assembly. I am your king; I am

placed to govern you, and shall answer for your errors; I am a man of

flesh and blood, and have my passions and affections as other men; I

pray you, do not too far move me to do that which my power may tempt me

unto."[510]

_Continual bickerings between the Crown and Commons._--It is most

probable, as experience had shown, that such a demonstration of

displeasure from Elizabeth would have ensured the repentant submission

of the Commons. But within a few years of the most unbroken

tranquillity, there had been one of those changes of popular feeling

which a government is seldom observant enough to watch. Two springs had

kept in play the machine of her administration, affection and fear;

attachment arising from the sense of dangers endured, and glory achieved

for her people, tempered, though not subdued, by the dread of her stern

courage and vindictive rigour. For James not a particle of loyal

affection lived in the hearts of the nation, while his easy and

pusillanimous, though choleric disposition, had gradually diminished

those sentiments of apprehension which royal frowns used to excite. The

Commons, after some angry speeches, resolved to make known to the king

through the speaker their desire, that he would listen to no private

reports, but take his information of the house's meaning from

themselves; that he would give leave to such persons as he had blamed

for their speeches to clear themselves in his hearing; and that he would

by some gracious message make known his intention that they should

deliver their opinions with full liberty, and without fear. The speaker

next day communicated a slight but civil answer he had received from the

king, importing his wish to preserve their privileges, especially that

of liberty of speech.[511] This, however, did not prevent his sending a

message a few days afterwards, commenting on their debates, and on some

clauses they had introduced into the bill for the abolition of all

hostile laws.[512] And a petition having been prepared by a committee

under the house's direction for better execution of the laws against

recusants, the speaker, on its being moved that the petition be read,

said that his majesty had taken notice of the petition as a thing

belonging to himself, concerning which it was needless to press him.

This interference provoked some members to resent it, as an infringement

of their liberties. The speaker replied that there were many precedents

in the late queen's time, where she had restrained the house from

meddling in politics of divers kinds. This, as a matter of fact, was too

notorious to be denied. A motion was made for a committee "to search for

precedents of ancient as well as later times that do concern any

messages from the sovereign magistrate, king or queen of this realm,

touching petitions offered to the House of Commons." The king now

interposed by a second message, that, though the petition were such as

the like had not been read in the house, and contained matter whereof

the house could not properly take knowledge, yet if they thought good to

have it read, he was not against the reading. And the Commons were so

well satisfied with this concession, that no further proceedings were

had; and the petition, says the journal, was at length, with general

liking, agreed to sleep. It contained some strong remonstrances against

ecclesiastical abuses, and in favour of the deprived and silenced

puritans, but such as the house had often before in various modes

brought forward.[513]

The ministry betrayed, in a still more pointed manner, their jealousy of

any interference on the part of the Commons with the conduct of public

affairs in a business of a different nature. The pacification concluded

with Spain in 1604, very much against the general wish,[514] had neither

removed all grounds of dispute between the governments, nor allayed the

dislike of the nations. Spain advanced in that age the most preposterous

claims to an exclusive navigation beyond the tropic, and to the sole

possession of the American continent; while the English merchants,

mindful of the lucrative adventures of the queen's reign, could not be

restrained from trespassing on the rich harvest of the Indies by

contraband and sometimes piratical voyages. These conflicting interests

led of course to mutual complaints of maritime tyranny and fraud;

neither likely to be ill-founded, where the one party was as much

distinguished for the despotic exercise of vast power, as the other by

boldness and cupidity. It was the prevailing bias of the king's temper

to keep on friendly terms with Spain, or rather to court her with

undisguised and impolitic partiality.[515] But this so much thwarted the

prejudices of his subjects that no part perhaps of his administration

had such a disadvantageous effect on his popularity. The merchants

presented to the Commons, in this session of 1607, a petition upon the

grievances they sustained from Spain, entering into such a detail of

alleged cruelties as was likely to exasperate that assembly. Nothing

however was done for a considerable time, when after receiving the

report of a committee on the subject, the house prayed a conference with

the Lords. They, who acted in this and the preceding session as the mere

agents of government, intimated in their reply, that they thought it an

unusual matter for the Commons to enter upon, and took time to consider

about a conference. After some delay this was granted, and Sir Francis

Bacon reported its result to the lower house. The Earl of Salisbury

managed the conference on the part of the Lords. The tenor of his

speech, as reported by Bacon, is very remarkable. After discussing the

merits of the petition, and considerably extenuating the wrongs imputed

to Spain, he adverted to the circumstance of its being presented to the

Commons. The Crown of England was invested, he said, with an absolute

power of peace and war; and inferred, from a series of precedents which

he vouched, that petitions made in parliament, intermeddling with such

matters, had gained little success; that great inconveniences must

follow from the public debate of a king's designs, which, if they take

wind, must be frustrated; and that if parliaments have ever been made

acquainted with matter of peace or war in a general way, it was either

when the king and council conceived that it was material to have some

declaration of the zeal and affection of the people, or else when they

needed money for the charge of a war, in which case they should be sure

enough to hear of it; that the Lords would make a good construction of

the Commons' desire, that it sprang from a forwardness to assist his

majesty's future resolutions, rather than a determination to do that

wrong to his supreme power which haply might appear to those who were

prone to draw evil inferences from their proceedings. The Earl of

Northampton, who also bore a part in this conference, gave as one reason

among others, why the Lords could not concur in forwarding the petition

to the Crown, that the composition of the House of Commons was in its

first foundation intended merely to be of those that have their

residence and vocation in the places for which they serve, and therefore

to have a private and local wisdom according to that compass, and so not

fit to examine or determine secrets of state which depend upon such

variety of circumstances; and although he acknowledged that there were

divers gentlemen in the house of good capacity and insight into matters

of state, yet that was the accident of the person, and not the

intention of the place; and things were to be taken in the institution,

and not in the practice. The Commons seemed to have acquiesced in this

rather contemptuous treatment. Several precedents indeed might have been

opposed to those of the Earl of Salisbury, wherein the Commons,

especially under Richard II. and Henry VI., had assumed a right of

advising on matters of peace and war. But the more recent usage of the

constitution did not warrant such an interference. It was however rather

a bold assertion, that they were not the proper channel through which

public grievances, or those of so large a portion of the community as

the merchants, ought to be represented to the throne.[516]

_Impositions on merchandise without consent of parliament._--During the

interval of two years and a half that elapsed before the commencement of

the next session, a decision had occurred in the court of exchequer,

which threatened the entire overthrow of our constitution. It had always

been deemed the indispensable characteristic of a limited monarchy,

however irregular and inconsistent might be the exercise of some

prerogatives, that no money could be raised from the subject without the

consent of the estates. This essential principle was settled in England,

after much contention, by the statute entitled Confirmatio Chartarum, in

the 25th year of Edward I. More comprehensive and specific in its

expression than the Great Charter of John, it abolishes all "aids,

tasks, and prises, unless by the common assent of the realm, and for the

common profit thereof, saving the ancient aids and prises due and

accustomed;" the king explicitly renouncing the custom he had lately set

on wool. Thus the letter of the statute and the history of the times

conspire to prove, that impositions on merchandise at the ports, to

which alone the word prises was applicable, could no more be levied by

the royal prerogative after its enactment, than internal taxes upon

landed or movable property, known in that age by the appellations of

aids and tallages. But as the former could be assessed with great ease,

and with no risk of immediate resistance, and especially as certain

ancient customs were preserved by the statute,[517] so that a train of

fiscal officers, and a scheme of regulations and restraints upon the

export and import of goods became necessary, it was long before the

sovereigns of this kingdom could be induced constantly to respect this

part of the law. Hence several remonstrances from the Commons under

Edward III. against the maletolts or unjust exactions upon wool, by

which, if they did not obtain more than a promise of effectual redress,

they kept up their claim, and perpetuated the recognition of its

justice, for the sake of posterity. They became powerful enough to

enforce it under Richard II., in whose time there is little clear

evidence of illegal impositions; and from the accession of the house of

Lancaster it is undeniable that they ceased altogether. The grant of

tonnage and poundage for the king's life, which from the time of Henry

V. was made in the first parliament of every reign, might perhaps be

considered as a tacit compensation to the Crown for its abandonment of

these irregular extortions.

Henry VII., the most rapacious, and Henry VIII., the most despotic, of

English monarchs, did not presume to violate this acknowledged right.

The first who had again recourse to this means of enhancing the revenue

was Mary, who, in the year 1557, set a duty upon cloths exported beyond

seas, and afterwards another on the importation of French wines. The

former of those was probably defended by arguing, that there was already

a duty on wool; and if cloth, which was wool manufactured, could pass

free, there would be a fraud on the revenue. The merchants however did

not acquiesce in this arbitrary imposition, and as soon as Elizabeth's

accession gave hopes of a restoration of English government, they

petitioned to be released from this burthen. The question appears, by a

memorandum in Dyer's Reports, to have been extra-judicially referred to

the judges, unless it were rather as assistants to the privy council

that their opinion was demanded. This entry concludes abruptly, without

any determination of the judges.[518] But we may presume, that if any

such had been given in favour of the Crown, it would have been made

public. And that the majority of the bench would not have favoured this

claim of the Crown, we may strongly presume from their doctrine in a

case of the same description, wherein they held the assessment of treble

custom on aliens for violation of letters patent to be absolutely

against the law.[519] The administration, however, would not release

this duty, which continued to be paid under Elizabeth. She also imposed

one upon sweet wines. We read of no complaint in parliament against this

novel taxation; but it is alluded to by Bacon in one of his tracts

during the queen's reign, as a grievance alleged by her enemies. He

defends it, as laid only on a foreign merchandise, and a delicacy which

might be forborne.[520] But considering Elizabeth's unwillingness to

require subsidies from the common, and the rapid increase of foreign

traffic during her reign, it might be asked why she did not extend these

duties to other commodities, and secure to herself no trifling annual

revenue. What answer can be given, except that, aware how little any

unparliamentary levying of money could be supported by law or usage, her

ministers shunned to excite attention to these innovations which wanted

hitherto the stamp of time to give them prescriptive validity?[521]

James had imposed a duty of five shillings per hundredweight on

currants, over and above that of two shillings and sixpence, which was

granted by the statute of tonnage and poundage.[522] Bates, a Turkey

merchant, having refused payment, an information was exhibited against

him in the exchequer. Judgment was soon given for the Crown. The courts

of justice, it is hardly necessary to say, did not consist of men

conscientiously impartial between the king and the subject; some corrupt

with hope of promotion, many more fearful of removal, or awe-struck by

the frowns of power. The speeches of Chief Baron Fleming, and of Baron

Clark, the only two that are preserved in Lane's Reports, contain

propositions still worse than their decision, and wholly subversive of

all liberty. "The king's power," it was said, "is double--ordinary and

absolute; and these have several laws and ends. That of the ordinary is

for the profit of particular subjects, exercised in ordinary courts, and

called common law, which cannot be changed in substance without

parliament. The king's absolute power is applied to no particular

person's benefit, but to the general safety; and this is not directed by

the rules of common law, but more properly termed policy and government,

varying according to his wisdom for the common good; and all things done

within those rules are lawful. The matter in question is matter of

state, to be ruled according to policy by the king's extraordinary

power. All customs (duties so called) are the effects of foreign

commerce; but all affairs of commerce and all treaties with foreign

nations belong to the king's absolute power; he therefore who has power

over the cause, must have it also over the effect. The seaports are the

king's gates, which he may open and shut to whom he pleases." The

ancient customs on wine and wool are asserted to have originated in the

king's absolute power, and not in a grant of parliament; a point,

whether true or not, of no great importance, if it were acknowledged,

that many statutes had subsequently controlled this prerogative. But

these judges impugned the authority of statutes derogatory to their

idol. That of 45 E. 3, c. 4, that no new imposition should be laid on

wool or leather, one of them maintains, did not bind the king's

successors; for the right to impose such duties was a principal part of

the Crown of England, which the king could not diminish. They extolled

the king's grace in permitting the matter to be argued, commenting at

the same time on the insolence shown in disputing so undeniable a claim.

Nor could any judges be more peremptory in resisting an attempt to

overthrow the most established precedents, than were these barons of

King James's exchequer, in giving away those fundamental liberties in

which every Englishman was inherited.[523]

_Remonstrances against impositions in session of 1610._--The immediate

consequence of this decision was a book of rates, published in July

1608, under the authority of the great seal, imposing heavy duties upon

almost all merchandise.[524] But the judgment of the court of exchequer

did not satisfy men jealous of the Crown's encroachments. The imposition

on currants had been already noticed as a grievance by the House of

Commons in 1606. But the king answered that the question was in a course

for legal determination; and the Commons themselves, which is worthy of

remark, do not appear to have entertained any clear persuasion that the

impost was contrary to law.[525] In the session, however, which began in

February 1610, they had acquired new light by sifting the legal

authorities, and instead of submitting their opinions to the courts of

law, which were in truth little worthy of such deference, were the more

provoked to remonstrate against the novel usurpation those servile men

had endeavoured to prop up. Lawyers, as learned probably as most of the

judges, were not wanting in their ranks. The illegality of impositions

was shown in two elaborate speeches by Hakewill and Yelverton.[526] And

the country gentlemen, who, though less deeply versed in precedents, had

too good sense not to discern that the next step would be to levy taxes

on their lands, were delighted to find that there had been an old

English constitution not yet abrogated, which would bear them out in

their opposition. When the king therefore had intimated by a message,

and afterwards in a speech, his command not to enter on the subject,

couched in that arrogant tone of despotism which this absurd prince

affected,[527] they presented a strong remonstrance against this

inhibition; claiming "as an ancient, general, and undoubted right of

parliament to debate freely all matters which do probably concern the

subject; which freedom of debate being once foreclosed, the essence of

the liberty of parliament is withal dissolved. For the judgment given by

the exchequer, they take not on them to review it, but desire to know

the reasons whereon it was grounded; especially as it was generally

apprehended that the reasons of that judgment extended much farther,

even to the utter ruin of the ancient liberty of this kingdom, and of

the subjects' right of property in their lands and goods."[528] "The

policy and constitution of this your kingdom (they say) appropriates

unto the kings of this realm, with the assent of the parliament, as well

the sovereign power of making laws, as that of taxing, or imposing upon

the subjects' goods or merchandises, as may not, without their consents,

be altered or changed. This is the cause that the people of this

kingdom, as they ever showed themselves faithful and loving to their

kings, and ready to aid them, in all their just occasions, with

voluntary contributions; so have they been ever careful to preserve

their own liberties and rights, when anything hath been done to

prejudice or impeach the same. And therefore when their princes,

occasioned either by their wars, or their over-great bounty, or by any

other necessity, have without consent of parliament set impositions,

either within the land, or upon commodities either exported or imported

by the merchants, they have, in open parliament, complained of it, in

that it was done without their consents: and thereupon never failed to

obtain a speedy and full redress, without any claim made by the kings,

of any power or prerogative in that point. And though the law of

property be original, and carefully preserved by the common laws of

this realm, which are as ancient as the kingdom itself; yet these famous

kings, for the better contentment and assurance of their loving

subjects, agreed, that this old fundamental right should be further

declared and established by act of parliament. Wherein it is provided,

that no such charges should ever be laid upon the people, without their

common consent, as may appear by sundry records of former times. We,

therefore, your majesty's most humble Commons assembled in parliament,

following the example of this worthy case of our ancestors, and out of a

duty of those for whom we serve, finding that your majesty, without

advice or consent of parliament, hath lately, in time of peace, set both

greater impositions, and far more in number, than any your noble

ancestors did ever in time of war, have, with all humility, presumed to

present this most just and necessary petition unto your majesty, that

all impositions set without the assent of parliament may be quite

abolished and taken away; and that your majesty, in imitation likewise

of your noble progenitors, will be pleased, that a law be made during

this session of parliament, to declare that all impositions set, or to

be set upon your people, their goods or merchandises, save only by

common assent in parliament, are and shall be void."[529] They proceeded

accordingly, after a pretty long time occupied in searching for

precedents, to pass a bill taking away impositions; which, as might be

anticipated, did not obtain the concurrence of the upper house.

_Doctrine of king's absolute power inculcated by clergy._--The Commons

had reason for their apprehensions. This doctrine of the king's absolute

power beyond the law had become current with all who sought his favour,

and especially with the high church party. The convocation had in 1606

drawn up a set of canons, denouncing as erroneous a number of tenets

hostile in their opinion to royal government. These canons, though never

authentically published till a later age, could not have been secret.

They consist of a series of propositions or paragraphs, to each of which

an anathema of the opposite error is attached; deducing the origin of

government from the patriarchal regimen of families, to the exclusion of

any popular choice. In those golden days the functions both of king and

priest were, as they term it, "the prerogatives of birthright;" till the

wickedness of mankind brought in usurpation, and so confused the pure

stream of the fountain with its muddy runnels, that we must now look to

prescription for that right which we cannot assign to primogeniture.

Passive obedience in all cases without exception to the established

monarch is inculcated.[530]

It is not impossible that a man might adopt this theory of the original

of government, unsatisfactory as it must appear on reflection, without

deeming it incompatible with our mixed and limited monarchy. But its

tendency was evidently in a contrary direction. The king's power was of

God, that of the parliament only of man, obtained perhaps by rebellion;

but out of rebellion what right could spring? Or were it even by

voluntary concession, could a king alienate a divine gift, and infringe

the order of Providence? Could his grants, if not in themselves null,

avail against his posterity, heirs like himself under the great

feoffment of creation? These consequences were at least plausible; and

some would be found to draw them. And indeed if they were never

explicitly laid down, the mere difference of respect with which mankind

could not but contemplate a divine and human, a primitive or paramount,

and a derivative authority, would operate as a prodigious advantage in

favour of the Crown.

The real aim of the clergy in thus enormously enhancing the pretensions

of the Crown was to gain its sanction and support for their own. Schemes

of ecclesiastical jurisdiction, hardly less extensive than had warmed

the imagination of Becket, now floated before the eyes of his successor

Bancroft. He had fallen indeed upon evil days, and perfect independence

on the temporal magistrate could no longer be attempted; but he acted

upon the refined policy of making the royal supremacy over the church,

which he was obliged to acknowledge, and professed to exaggerate, the

very instrument of its independence upon the law. The favourite object

of the bishops in this age was to render their ecclesiastical

jurisdiction, no part of which had been curtailed in our hasty

reformation, as unrestrained as possible by the courts of law. These

had been wont, down from the reign of Henry II., to grant writs of

prohibition, whenever the spiritual courts transgressed their proper

limits; to the great benefit of the subject, who would otherwise have

lost his birthright of the common law, and been exposed to the

defective, not to say iniquitous and corrupt, procedure of the

ecclesiastical tribunals. But the civilians, supported by the prelates,

loudly complained of these prohibitions, which seem to have been much

more frequent in the latter years of Elizabeth and the reign of James,

than in any other period. Bancroft accordingly presented to the

star-chamber, in 1605, a series of petitions in the name of the clergy,

which Lord Coke has denominated Articuli Cleri, by analogy to some

similar representations of that order under Edward II.[531] In these it

was complained that the courts of law interfered by continual

prohibitions with a jurisdiction as established and as much derived from

the king as their own, either in cases which were clearly within that

jurisdiction's limits, or on the slightest suggestion of some matter

belonging to the temporal court. It was hinted that the whole course of

granting prohibitions was an encroachment of the king's bench and common

pleas, and that they could regularly issue only out of chancery. To each

of these articles of complaint, extending to twenty-five, the judges

made separate answers, in a rough, and, some might say, a rude style,

but pointed and much to the purpose; vindicating in every instance their

right to take cognisance of every collateral matter springing out of an

ecclesiastical suit, and repelling the attack upon their power to issue

prohibitions, as a strange presumption. Nothing was done, nor, thanks to

the firmness of the judges, could be done, by the council in this

respect. For the clergy had begun by advancing that the king's authority

was sufficient to reform what was amiss in any of his own courts, all

jurisdiction spiritual and temporal being annexed to his Crown. But it

was positively and repeatedly denied in reply, that anything less than

an act of parliament could alter the course of justice established by

law. This effectually silenced the archbishop, who knew how little he

had to hope from the Commons. By the pretensions made for the church in

this affair, he exasperated the judges, who had been quite sufficiently

disposed to second all rigorous measures against the puritan ministers,

and aggravated that jealousy of the ecclesiastical courts which the

common lawyers had long entertained.

_Cowell's Interpreter._--An opportunity was soon given to those who

disliked the civilians, that is, not only to the common lawyers, but to

all the patriots and puritans in England, by an imprudent publication of

a Doctor Cowell. This man, in a law dictionary dedicated to Bancroft,

had thought fit to insert passages of a tenor conformable to the new

creed of the king's absolute or arbitrary power. Under the title King,

it is said:--"He is above the law by his absolute power, and though for

the better and equal course in making laws he do admit the three estates

unto council, yet this in divers learned men's opinion is not of

constraint, but of his own benignity, or by reason of the promise made

upon oath at the time of his coronation. And though at his coronation he

take an oath not to alter the laws of the land, yet this oath

notwithstanding, he may alter or suspend any particular law that seemeth

hurtful to the public estate. Thus much in short, because I have heard

some to be of opinion that the laws are above the king." And in treating

of the Parliament, Cowell observes: "Of these two one must be true,

either that the king is above the parliament, that is, the positive laws

of his kingdom, or else that he is not an absolute king. And therefore

though it be a merciful policy and also a politic mercy, not alterable

without great peril, to make laws by the consent of the whole realm,

because so no part shall have cause to complain of a partiality, yet

simply to bind the prince to or by these laws were repugnant to the

nature and constitution of an absolute monarchy." It is said again,

under the title Prerogative, that "the king, by the custom of this

kingdom, maketh no laws without the consent of the three estates, though

he may quash any law concluded of by them;" and that he "holds it

incontrollable, that the king of England is an absolute king."[532]

Such monstrous positions from the mouth of a man of learning and

conspicuous in his profession, who was surmised to have been instigated

as well as patronised by the archbishop, and of whose book the king was

reported to have spoken in terms of eulogy, gave very just scandal to

the House of Commons. They solicited and obtained a conference with the

lords, which the attorney-general, Sir Francis Bacon, managed on the

part of the lower house; a remarkable proof of his adroitness and

pliancy. James now discovered that it was necessary to sacrifice this

too unguarded advocate of prerogative: Cowell's book was suppressed by

proclamation, for which the Commons returned thanks, with great joy at

their victory.[533]

It is the evident policy of every administration, in dealing with the

House of Commons, to humour them in everything that touches their pride

and tenaciousness of privilege, never attempting to protect any one who

incurs their displeasure by want of respect. This seems to have been

understood by the Earl of Salisbury, the first English minister who,

having long sat in the lower house, had become skilful in those arts of

management which his successors have always reckoned so essential a part

of their mystery. He wanted a considerable sum of money to defray the

king's debts, which, on his coming into the office of lord treasurer

after Lord Buckhurst's death, he had found to amount to L1,300,000,

about one-third of which was still undischarged. The ordinary expense

also surpassed the revenue by L81,000. It was impossible that this could

continue, without involving the Crown in such embarrassments as would

leave it wholly at the mercy of parliament. Cecil therefore devised the

scheme of obtaining a perpetual yearly revenue of L200,000, to be

granted once for all by parliament; and the better to incline the house

to this high and extraordinary demand, he promised in the king's name to

give all the redress and satisfaction in his power for any grievances

they might bring forward.[534]

_Renewed complaints of the Commons._--This offer on the part of

government seemed to make an opening for a prosperous adjustment of the

differences which had subsisted ever since the king's accession. The

Commons accordingly, postponing the business of a subsidy, to which the

courtiers wished to give priority, brought forward a host of their

accustomed grievances in ecclesiastical and temporal concerns. The most

essential was undoubtedly that of impositions, which they sent up a

bill to the Lords, as above mentioned, to take away. They next

complained of the ecclesiastical high commission court, which took upon

itself to fine and imprison, powers not belonging to their jurisdiction,

and passed sentences without appeal, interfering frequently with civil

rights, and in all its procedure neglecting the rules and precautions of

the common law. They dwelt on the late abuse of proclamations assuming

the character of laws. "Amongst many other points of happiness and

freedom," it is said, "which your majesty's subjects of this kingdom

have enjoyed under your royal progenitors, kings and queens of this

realm, there is none which they have accounted more dear and precious

than this, to be guided and governed by the certain rule of the law,

which giveth both to the head and members that which of right belongeth

to them, and not by any uncertain or arbitrary form of government,

which, as it hath proceeded from the original good constitution and

temperature of this estate, so hath it been the principal means of

upholding the same, in such sort as that their kings have been just,

beloved, happy, and glorious, and the kingdom itself peaceable,

flourishing, and durable so many ages. And the effect, as well of the

contentment that the subjects of this kingdom have taken in this form of

government, as also of the love, respect, and duty, which they have by

reason of the same rendered unto their princes, may appear in this, that

they have, as occasion hath required, yielded more extraordinary and

voluntary contribution to assist their kings, than the subjects of any

other known kingdom whatsoever. Out of this root hath grown the

indubitable right of the people of this kingdom, not to be made subject

to any punishment that shall extend to their lives, lands, bodies, or

goods, other than such as are ordained by the common laws of this land,

or the statutes made by their common consent in parliament.

Nevertheless, it is apparent, both that proclamations have been of late

years much more frequent than heretofore, and that they are extended,

not only to the liberty, but also to the goods, inheritances, and

livelihood of men; some of them tending to alter some points of the law,

and make a new; other some made, shortly after a session of parliament,

for matter directly rejected in the same session; other appointing

punishments to be inflicted before lawful trial and conviction; some

containing penalties in form of penal statutes; some referring the

punishment of offenders to courts of arbitrary discretion, which have

laid heavy and grievous censures upon the delinquents; some, as the

proclamation for starch, accompanied with letters commanding enquiry to

be made against the transgressors at the quarter-sessions; and some

vouching former proclamations to countenance and warrant the later, as

by a catalogue here underwritten more particularly appeareth. By reason

whereof there is a general fear conceived and spread amongst your

majesty's people, that proclamations will, by degrees, grow up, and

increase to the strength and nature of laws; whereby not only that

ancient happiness, freedom, will be much blemished (if not quite taken

away) which their ancestors have so long enjoyed; but the same may also

(in process of time) bring a new form of arbitrary government upon the

realm: and this their fear is the more increased by occasion of certain

books lately published, which ascribe a greater power to proclamations

than heretofore had been conceived to belong unto them; as also of the

care taken to reduce all the proclamations made since your majesty's

reign into one volume, and to print them in such form as acts of

parliament formerly have been, and still are used to be, which seemeth

to imply a purpose to give them more reputation and more establishment

than heretofore they have had."[535]

They proceed, after a list of these illegal proclamations, to enumerate

other grievances, such as the delay of courts of law in granting writs

of prohibition and habeas corpus, the jurisdiction of the council of

Wales over the four bordering shires of Gloucester, Worcester, Hereford,

and Salop,[536] some patents of monopolies, and a tax under the name of

a licence recently set upon victuallers. The king answered these

remonstrances with civility, making, as usual, no concession with

respect to the ecclesiastical commission, and evading some of their

other requests; but promising that his proclamations should go no

farther than was warranted by law, and that the royal licences to

victuallers should be revoked.

_Negotiation for giving up the feudal revenue._--It appears that the

Commons, deeming these enumerated abuses contrary to law, were unwilling

to chaffer with the Crown for the restitution of their actual rights.

There were, however, parts of the prerogative which they could not

dispute, though galled by the burthen; the incidents of feudal tenure,

and purveyance. A negotiation was accordingly commenced and carried on

for some time with the court, for abolishing both these, or at least the

former. The king, though he refused to part with tenure by knight's

service, which he thought connected with the honour of the monarchy, was

induced, with some real or pretended reluctance, to give up its

lucrative incidents, relief, primer seisin, and wardship, as well as the

right of purveyance. But material difficulties recurred in the

prosecution of this treaty. Some were apprehensive that the validity of

a statute cutting off such ancient branches of prerogative might

hereafter be called in question; especially if the root from which they

sprung, tenure in capite, should still remain. The king's demands, too,

seemed exorbitant. He asked L200,000 as a yearly revenue over and above

L100,000, at which his wardships were valued, and which the Commons were

content to give. After some days' pause upon this proposition, they

represented to the Lords, with whom, through committees of conference,

the whole matter had been discussed, that if such a sum were to be

levied on those only who had lands subject to wardship, it would be a

burthen they could not endure; and that if it were imposed equally on

the kingdom, it would cause more offence and commotion in the people

than they could risk. After a good deal of haggling, Salisbury delivered

the king's final determination to accept of L200,000 per annum, which

the Commons voted to grant as a full composition for abolishing the

right of wardship, and dissolving the court that managed it, and for

taking away all purveyance; with some further concessions, and

particularly, that the king's claim to lands should be bound by sixty

years' prescription. Two points yet remained, of no small moment;

namely, by what assurance they could secure themselves against the

king's prerogative, so often held up by court lawyers as something

uncontrollable by statute, and by what means so great an imposition

should be levied; but the consideration of these was reserved for the

ensuing session, which was to take place in October.[537] They were

prorogued in July till that month, having previously granted a subsidy

for the king's immediate exigencies. On their meeting again, the Lords

began the business by requesting a conference with the other house about

the proposed contract. But it appeared that the Commons had lost their

disposition to comply. Time had been given them to calculate the

disproportion of the terms, and the perpetual burthen that lands held by

knight's service must endure. They had reflected too on the king's

prodigal humour, the rapacity of the Scots in his service, and the

probability that this additional revenue would be wasted without

sustaining the national honour, or preventing future applications for

money. They saw that after all the specious promises by which they had

been led on, no redress was to be expected as to those grievances they

had most at heart; that the ecclesiastical courts would not be suffered

to lose a jot of their jurisdiction, that illegal customs were still to

be levied at the out-ports, that proclamations were still to be enforced

like acts of parliament. Great coldness accordingly was displayed in

their proceedings; and in a short time, this distinguished parliament,

after sitting nearly seven years, was dissolved by proclamation.[538]

_Dissolution of parliament--Character of James._--It was now perhaps too

late for the king, by any reform or concession, to regain that public

esteem which he had forfeited. Deceived by an overweening opinion of his

own learning, which was not inconsiderable, of his general abilities

which were far from contemptible, and of his capacity for government,

which was very small, and confirmed in this delusion by the disgraceful

flattery of his courtiers and bishops, he had wholly overlooked the

real difficulties of his position; as a foreigner, rather distantly

connected with the royal stock, and as a native of a hostile and hateful

kingdom, come to succeed the most renowned of sovereigns, and to grasp a

sceptre which deep policy and long experience had taught her admirably

to wield.[539] The people were proud of martial glory, he spoke only of

the blessing of the peacemakers; they abhorred the court of Spain, he

sought its friendship; they asked indulgence for scrupulous consciences,

he would bear no deviation from conformity; they writhed under the yoke

of the bishops, whose power he thought necessary to his own; they were

animated by a persecuting temper towards the catholics, he was averse to

extreme rigour; they had been used to the utmost frugality in dispensing

the public treasure, he squandered it on unworthy favourites; they had

seen at least exterior decency of morals prevail in the queen's court,

they now heard only of its dissoluteness and extravagance;[540] they had

imbibed an exclusive fondness for the common law as the source of their

liberties and privileges; his churchmen and courtiers, but none more

than himself, talked of absolute power and the imprescriptible rights of

monarchy.[541]

_Death of Lord Salisbury._--James lost in 1611 his son Prince Henry, and

in 1612 the lord treasurer Salisbury. He showed little regret for the

former, whose high spirit and great popularity afforded a mortifying

contrast; especially as the young prince had not taken sufficient pains

to disguise his contempt for his father.[542] Salisbury was a very able

man, to whom perhaps his contemporaries did some injustice. The

ministers of weak and wilful monarchs are made answerable for the

mischiefs they are compelled to suffer, and gain no credit for those

which they prevent. Cecil had made personal enemies of those who had

loved Essex or admired Raleigh, as well as those who looked invidiously

on his elevation. It was believed that the desire shown by the House of

Commons to abolish the feudal wardships, proceeded in a great measure

from the circumstance that this obnoxious minister was master of the

court of wards; an office both lucrative and productive of much

influence. But he came into the scheme of abolishing it with a readiness

that did him credit. His chief praise, however, was his management of

continental relations. The only minister of James's cabinet who had been

trained in the councils of Elizabeth, he retained some of her jealousy

of Spain, and of her regard for the protestant interests. The court of

Madrid, aware both of the king's pusillanimity and of his favourable

dispositions, affected a tone in the conferences held in 1604, about a

treaty of peace, which Elizabeth would have resented in a very different

manner.[543] On this occasion, he not only deserted the United

Provinces, but gave hopes to Spain that he might, if they persevered in

their obstinacy, take part against them. Nor have I any doubt that his

blind attachment to that power would have precipitated him into a

ruinous connection, if Cecil's wisdom had not influenced his councils.

During this minister's life, our foreign politics seem to have been

conducted with as much firmness and prudence as his master's temper

would allow; the mediation of England was of considerable service in

bringing about the great truce of twelve years between Spain and Holland

in 1609; and in the dispute which sprang up soon afterwards concerning

the succession to the duchies of Cleves and Juliers, a dispute which

threatened to mingle in arms the catholic and protestant parties

throughout Europe,[544] our councils were full of a vigour and

promptitude unusual in this reign; nor did anything but the

assassination of Henry IV. prevent the appearance of an English army in

the Netherlands. It must at least be confessed that the king's affairs,

both at home and abroad, were far worse conducted after the death of the

Earl of Salisbury than before.[545]

_Lord Coke's alienation from the court._--The administration found an

important disadvantage, about this time, in a sort of defection of Sir

Edward Coke (more usually called Lord Coke), chief justice of the king's

bench, from the side of prerogative. He was a man of strong, though

narrow, intellect; confessedly the greatest master of English law that

had ever appeared; but proud and overbearing, a flatterer and tool of

the court till he had obtained his ends, and odious to the nation for

the brutal manner in which, as attorney-general, he had behaved towards

Sir Walter Raleigh on his trial. In raising him to the post of chief

justice, the council had of course relied on finding his unfathomable

stores of precedent subservient to their purposes. But soon after his

promotion, Coke, from various causes, began to steer a more independent

course. He was little formed to endure a competitor in his own

profession, and lived on ill terms both with the lord chancellor

Egerton, and with the attorney-general, Sir Francis Bacon. The latter

had long been his rival and enemy. Discountenanced by Elizabeth, who,

against the importunity of Essex, had raised Coke over his head, that

great and aspiring genius was now high in the king's favour. The chief

justice affected to look down on one as inferior to him in knowledge of

our municipal law, as he was superior in all other learning and in all

the philosophy of jurisprudence. And the mutual enmity of these

illustrious men never ceased till each in his turn satiated his revenge

by the other's fall. Coke was also much offended by the attempts of the

bishops to emancipate their ecclesiastical courts from the civil

jurisdiction. I have already mentioned the peremptory tone in which he

repelled Bancroft's Articuli Cleri. But as the king and some of the

council rather favoured these episcopal pretensions, they were troubled

by what they deemed his obstinacy, and discovered more and more that

they had to deal with a most impracticable spirit.

It would be invidious to exclude from the motives that altered Lord

Coke's behaviour in matters of prerogative his real affection for the

laws of the land, which novel systems, broached by the churchmen and

civilians, threatened to subvert.[546] In Bates's case, which seems to

have come in some shape extra-judicially before him, he had delivered an

opinion in favour of the king's right to impose at the out-ports; but so

cautiously guarded, and bottomed on such different grounds from those

taken by the barons of the exchequer, that it could not be cited in

favour of any fresh encroachments.[547] He now performed a great service

to his country. The practice of issuing proclamations, by way of

temporary regulation indeed, but interfering with the subject's liberty,

in cases unprovided for by parliament, had grown still more usual than

under Elizabeth. Coke was sent for to attend some of the council, who

might perhaps have reason to conjecture his sentiments; and it was

demanded whether the king, by his proclamation, might prohibit new

buildings about London, and whether he might prohibit the making of

starch from wheat. This was during the session of parliament in 1610,

and with a view to what answer the king should make to the Commons'

remonstrance against these proclamations. Coke replied, that it was a

matter of great importance, on which he would confer with his brethren.

"The chancellor said, that every precedent had first a commencement, and

he would advise the judges to maintain the power and prerogative of the

king; and in cases wherein there is no authority and precedent, to leave

it to the king to order in it according to his wisdom and for the good

of his subjects, or otherwise the king would be no more than the Duke of

Venice; and that the king was so much restrained in his prerogative,

that it was to be feared the bonds would be broken. And the lord

privy-seal (Northampton) said, that the physician was not always bound

to a precedent, but to apply his medicine according to the quality of

the disease; and all concluded that it should be necessary at that time

to confirm the king's prerogative, with our opinions, although that

there were not any former precedent or authority in law; for every

precedent ought to have a commencement. To which I answered, that true

it is that every precedent ought to have a commencement; but when

authority and precedent is wanting, there is need of great consideration

before that anything of novelty shall be established, and to provide

that this be not against the law of the land; for I said that the king

cannot change any part of the common law, nor create any offence by his

proclamation which was not an offence before, without parliament. But at

this time I only desired to have a time of consultation and conference

with my brothers." This was agreed to by the council, and three judges,

besides Coke, appointed to consider it. They resolved that the king, by

his proclamation, cannot create any offence which was not one before;

for then he might alter the law of the land in a high point; for if he

may create an offence where none is, upon that ensues fine and

imprisonment. It was also resolved that the king hath no prerogative but

what the law of the land allows him. But the king, for prevention of

offences, may by proclamation admonish all his subjects that they keep

the laws and do not offend them, upon punishment to be inflicted by the

law; and the neglect of such proclamation, Coke says, aggravates the

offence. Lastly, they resolved that if an offence be not punishable in

the star-chamber, the prohibition of it by proclamation cannot make it

so. After this resolution, the report goes on to remark, no proclamation

imposing fine and imprisonment was made.[548]

_Means resorted to in order to avoid the meeting of parliament._--By the

abrupt dissolution of parliament James was left nearly in the same

necessity as before; their subsidy, being by no means sufficient to

defray his expenses, far less to discharge his debts. He had frequently

betaken himself to the usual resource of applying to private subjects,

especially rich merchants, for loans of money. These loans, which bore

no interest, and for the repayment of which there was no security,

disturbed the prudent citizens; especially as the council used to

solicit them with a degree of importunity at least bordering on

compulsion. The House of Commons had in the last session requested that

no one should be bound to lend money to the king against his will. The

king had answered that he allowed not of any precedents from the time of

usurping or decaying princes, or people too bold and wanton; that he

desired not to govern in that commonwealth where the people be assured

of everything and hope for nothing, nor would he leave to posterity such

a mark of weakness on his reign; yet, in the matter of loans, he would

refuse no reasonable excuse.[549] Forced loans or benevolences were

directly prohibited by an act of Richard III., whose laws, however the

court might sometimes throw a slur upon his usurpation, had always been

in the statute-book. After the dissolution of 1610, James attempted as

usual to obtain loans; but the merchants, grown bolder with the spirit

of the times, refused him the accommodation.[550] He had recourse to

another method of raising money, unprecedented, I believe, before his

reign, though long practised in France, the sale of honours. He sold

several peerages for considerable sums, and created a new order of

hereditary knights, called baronets, who paid L1,000 each for their

patents.[551]

Such resources, however, being evidently insufficient and temporary, it

was almost indispensable to try once more the temper of a parliament.

This was strongly urged by Bacon, whose fertility of invention rendered

him constitutionally sanguine of success. He submitted to the king that

there were expedients for more judiciously managing a House of Commons,

than Cecil, upon whom he was too willing to throw blame, had done with

the last; that some of those who had been most forward in opposing were

now won over; such as Neville, Yelverton, Hyde, Crew, Dudley Digges;

that much might be done by forethought towards filling the house with

well-affected persons, winning or blinding the lawyers, whom he calls

the literae vocales of the house, and drawing the chief constituent

bodies of the assembly, the country gentlemen, the merchants, the

courtiers, to act for the king's advantage; that it would be expedient

to tender voluntarily certain graces and modifications of the king's

prerogative, such as might with smallest injury be conceded, lest they

should be first demanded, and in order to save more important

points.[552] This advice was seconded by Sir Henry Neville, an ambitious

man, who had narrowly escaped in the queen's time for having tampered in

Essex's conspiracy, and had much promoted the opposition in the late

parliament, but was now seeking the post of secretary of state. He

advised the king, in a very sensible memorial, to consider what had been

demanded and what had been promised in the last session, granting the

more reasonable of the Commons' requests, and performing all his own

promises; to avoid any speech likely to excite irritation; and to seem

confident of the parliament's good affections, not waiting to be pressed

for what he meant to do.[553] Neville and others, who, like him,

professed to understand the temper of the Commons, and to facilitate the

king's dealings with them, were called _undertakers_.[554] This

circumstance, like several others in the present reign, is curious, as

it shows the rise of a systematic parliamentary influence, which was one

day to become the mainspring of government.

Neville, however, and his associates had deceived the courtiers with

promises they could not realise. It was resolved to announce certain

intended graces in the speech from the throne; that is, to declare the

king's readiness to pass bills that might remedy some grievances and

retrench a part of his prerogative. These proffered amendments of the

law, though eleven in number, failed altogether of giving the content

that had been fully expected. Except the repeal of a strange act of

Henry VIII., allowing the king to make such laws as he should think fit

for the principality of Wales without consent of parliament,[555] none

of them could perhaps be reckoned of any constitutional importance. In

all domanial and fiscal causes, and wherever the private interests of

the Crown stood in competition with those of a subject, the former

enjoyed enormous and superior advantages, whereof what is strictly

called its prerogative was principally composed. The terms of

prescription that bound other men's right, the rules of pleading and

procedure established for the sake of truth and justice, did not, in

general, oblige the king. It was not by doing away with a very few of

these invidious and oppressive distinctions, that the Crown could be

allowed to keep on foot still more momentous abuses.

_Parliament of 1614._--The Commons of 1614 accordingly went at once to

the characteristic grievance of this reign, the customs at the outports.

They had grown so confident in their cause by ransacking ancient

records, that an unanimous vote passed against the king's right of

imposition; not that there were no courtiers in the house, but the cry

was too obstreperous to be withstood.[556] They demanded a conference on

the subject with the Lords, who preserved a kind of mediating neutrality

throughout this reign.[557] In the course of their debate, Neyle, Bishop

of Lichfield, threw out some aspersion on the Commons. They were

immediately in a flame, and demanded reparation. This Neyle was a man of

indifferent character, and very unpopular from the share he had taken in

the Earl of Essex's divorce, and from his severity towards the puritans;

nor did the house fail to comment upon all his faults in their debate.

He had, however, the prudence to excuse himself ("with many tears," as

the Lords' Journals inform us), denying the most offensive words imputed

to him; and the affair went no farther.[558] This ill-humour of the

Commons disconcerted those who had relied on the undertakers. But as the

secret of these men had not been kept, their project considerably

aggravated the prevailing discontent.[559] The king had positively

denied in his first speech that there were any such undertakers; and

Bacon, then attorney-general, laughed at the chimerical notion, that

private men should undertake for all the Commons of England.[560] That

some persons however had obtained that name at court, and held out such

promises, is at present out of doubt; and indeed the king, forgetful of

his former denial, expressly confessed it on opening the session of

1621.

Amidst these heats little progress was made; and no one took up the

essential business of supply. The king at length sent a message,

requesting that a supply might be granted, with a threat of dissolving

parliament unless it were done. But the days of intimidation were gone

by. The house voted that they would first proceed with the business of

impositions, and postpone supply till their grievances should be

redressed.[561] Aware of the impossibility of conquering their

resolution, the king carried his measure into effect by a

dissolution.[562] They had sat about two months, and, what is perhaps

unprecedented in our history, had not passed a single bill. James

followed up this strong step by one still more vigorous. Several

members, who had distinguished themselves by warm language against the

government, were arrested after the dissolution, and kept for a short

time in custody; a manifest violation of that freedom of speech, without

which no assembly can be independent, and which is the stipulated

privilege of the House of Commons.[563]

_Benevolences._--It was now evident that James could never expect to be

on terms of harmony with a parliament, unless by surrendering

pretensions, which not only were in his eyes indispensable to the lustre

of his monarchy, but from which he derived an income that he had no

means of replacing. He went on accordingly for six years, supplying his

exigencies by such precarious sources as circumstances might furnish. He

restored the towns mortgaged by the Dutch to Elizabeth on payment of

2,700,000 florins, about one-third of the original debt. The enormous

fines imposed by the star-chamber, though seldom, I believe, enforced to

their utmost extent, must have considerably enriched the exchequer. It

is said by Carte that some Dutch merchants paid fines to the amount of

L133,000 for exporting gold coin.[564] But still greater profit was

hoped from the requisition of that more than half involuntary

contribution, miscalled a benevolence. It began by a subscription of the

nobility and principal persons about the court. Letters were sent

written to the sheriffs and magistrates, directing them to call on

people of ability. It had always been supposed doubtful whether the

statute of Richard III. abrogating "exactions, called benevolences,"

should extend to voluntary gifts at the solicitation of the Crown. The

language used in that act certainly implies that the pretended

benevolences of Edward's reign had been extorted against the subjects'

will; yet if positive violence were not employed, it seems difficult to

find a legal criterion by which to distinguish the effects of willing

loyalty from those of fear or shame. Lord Coke is said to have at first

declared that the king could not solicit a benevolence from his

subjects, but to have afterwards retracted his opinion and pronounced in

favour of its legality. To this second opinion he adheres in his

Reports.[565] While this business was pending, Mr. Oliver St. John wrote

a letter to the mayor of Marlborough, explaining his reasons for

declining to contribute, founded on the several statutes which he deemed

applicable, and on the impropriety of particular men opposing their

judgment, to the Commons in parliament, who had refused to grant any

subsidy. This argument, in itself exasperating, he followed up by

somewhat blunt observations on the king. His letter came under the

consideration of the star-chamber, where the offence having been

severely descanted upon by the attorney-general, Mr. St. John was

sentenced to a fine of L5000, and to imprisonment during pleasure.[566]

_Prosecution of Peacham._--Coke, though still much at the council-board,

was regarded with increasing dislike on account of his uncompromising

humour. This he had occasion to display in perhaps the worst and most

tyrannical act of King James's reign, the prosecution of one Peacham, a

minister in Somersetshire, for high treason. A sermon had been found in

this man's study (it does not appear what led to the search), never

preached, nor, if Judge Croke is right, intended to be preached,

containing such sharp censures upon the king, and invectives against the

government, as, had they been published, would have amounted to a

seditious libel. But common sense revolted at construing it into

treason, under the statute of Edward III., as a compassing of the king's

death. James, however, took it up with indecent eagerness. Peacham was

put to the rack, and examined upon various interrogatories, as it is

expressed by secretary Winwood, "before torture, in torture, between

torture, and after torture." Nothing could be drawn from him as to any

accomplices, nor any explanation of his design in writing the sermon;

which was probably but an intemperate effusion, so common among the

puritan clergy. It was necessary therefore to rely on this, as the overt

act of treason. Aware of the difficulties that attended this course,

the king directed Bacon previously to confer with the judges of the

king's bench, one by one, in order to secure their determination for the

Crown. Coke objected that "such particular, and as he called it,

auricular taking of opinions was not according to the custom of this

realm."[567] The other three judges having been tampered with, agreed to

answer such questions concerning the case as the king might direct to be

put to them; yielding to the sophism that every judge was bound by his

oath to give counsel to his majesty. The chief justice continued to

maintain his objection to this separate closeting of judges; yet,

finding himself abandoned by his colleagues, consented to give answers

in writing, which seem to have been merely evasive. Peacham was brought

to trial, and found guilty, but not executed, dying in prison a few

months after.[568]

_Dispute about the jurisdiction of the court of chancery._--It was not

long before the intrepid chief justice incurred again the council's

displeasure. This will require, for the sake of part of my readers, some

little previous explanation. The equitable jurisdiction, as it is

called, of the court of chancery appears to have been derived from that

extensive judicial power which, in early times, the king's ordinary

council had exercised. The chancellor, as one of the highest officers of

state, took a great share in the council's business; and when it was not

sitting, he had a court of his own, with jurisdiction in many important

matters, out of which process to compel appearance of parties might at

any time emanate. It is not unlikely therefore that redress, in matters

beyond the legal province of the chancellor, was occasionally given

through the paramount authority of this court. We find the council and

the chancery named together in many remonstrances of the Commons against

this interference with private rights, from the time of Richard II. to

that of Henry VI. It was probably in the former reign that the

chancellor began to establish systematically his peculiar restraining

jurisdiction. This originated in the practice of feoffments to uses, by

which the feoffee, who had legal seisin of the land, stood bound by

private engagement to suffer another, called the cestui que use, to

enjoy its use and possession. Such fiduciary estates were well known to

the Roman jurists, but inconsistent with the feudal genius of our law.

The courts of justice gave no redress, if the feoffee to uses violated

his trust by detaining the land. To remedy this, an ecclesiastical

chancellor devised the writ of subpoena, compelling him to answer upon

oath as to his trust. It was evidently necessary also to restrain him

from proceeding, as he might do, to obtain possession; and this gave

rise to injunctions, that is, prohibitions to sue at law, the violation

of which was punishable by imprisonment as a contempt of court. Other

instances of breach of trust occurred in personal contracts, and others

wherein, without any trust, there was a wrong committed beyond the

competence of the courts of law to redress; to all which the process of

subpoena was made applicable. This extension of a novel jurisdiction was

partly owing to a fundamental principle of our common law, that a

defendant cannot be examined, so that, if no witness or written

instrument could be produced to prove a demand, the plaintiff was wholly

debarred of justice; but in a still greater degree, to a strange

narrowness and scrupulosity of the judges, who, fearful of quitting the

letter of their precedents, even with the clearest analogies to guide

them, repelled so many just suits, and set up rules of so much hardship,

that men were thankful to embrace the relief held out by a tribunal

acting in a more rational spirit. This error the common lawyers began to

discover, in time to resume a great part of their jurisdiction in

matters of contract, which would otherwise have escaped from them. They

made too an apparently successful effort to recover their exclusive

authority over real property, by obtaining a statute for turning uses

into possession; that is, for annihilating the fictitious estate of the

feoffee to uses, and vesting the legal as well as equitable possession

in the cestui que use. But this victory, if I may use such an expression

(since it would have freed them, in a most important point, from the

chancellor's control), they threw away by one of those timid and narrow

constructions which had already turned so much to their prejudice; and

they permitted trust-estates, by the introduction of a few more words

into a conveyance, to maintain their ground, contra-distinguished from

the legal seisin, under the protection and guarantee, as before, of the

courts of equity.

The particular limits of this equitable jurisdiction were as yet

exceedingly indefinite. The chancellors were generally prone to extend

them; and being at the same time ministers of state in a government of

very arbitrary temper, regarded too little that course of precedent by

which the other judges held themselves too strictly bound. The cases

reckoned cognisable in chancery grew silently more and more numerous;

but with little overt opposition from the courts of law till the time of

Sir Edward Coke. That great master of the common law was inspired not

only with the jealousy of this irregular and encroaching jurisdiction

which all lawyers seem to have felt, but with a tenaciousness of his own

dignity, and a personal enmity towards Egerton who held the great seal.

It happened that an action was tried before him, the precise

circumstances of which do not appear, wherein the plaintiff lost the

verdict, in consequence of one of his witnesses being artfully kept

away. He had recourse to the court of chancery, filing a bill against

the defendant to make him answer upon oath, which he refused to do, and

was committed for contempt. Indictments were upon this preferred, at

Coke's instigation, against the parties who had filed the bill in

chancery, their counsel and solicitors, for suing in another court after

judgment obtained at law; which was alleged to be contrary to the

statute of praemunire. But the grand jury, though pressed, as is said, by

one of the judges, threw out these indictments. The king, already

incensed with Coke, and stimulated by Bacon, thought this too great an

insult upon his chancellor to be passed over. He first directed Bacon

and others to search for precedents of cases where relief had been given

in chancery after judgment at law. They reported that there was a series

of such precedents from the time of Henry VIII.; and some where the

chancellor had entertained suits even after execution. The

attorney-general was directed to prosecute in the star-chamber those who

had preferred the indictments; and as Coke had not been ostensibly

implicated in the business, the king contented himself with making an

order in the council-book, declaring the chancellor not to have exceeded

his jurisdiction.[569]

_Case of commendams._--The chief justice almost at the same time gave

another provocation, which exposed him more directly to the court's

resentment. A cause happened to be argued in the court of the king's

bench, wherein the validity of a particular grant of a benefice to a

bishop to be held in commendam, that is, along with his bishopric, came

into question; and the counsel at the bar, besides the special points of

the case, had disputed the king's general prerogative of making such a

grant. The king, on receiving information of this, signified to the

chief justice through the attorney-general, that he would not have the

court proceed to judgment till he had spoken with them. Coke requested

that similar letters might be written to the judges of all the courts.

This having been done, they assembled, and by a letter subscribed with

all their hands, certified his majesty, that they were bound by their

oaths not to regard any letters that might come to them contrary to law,

but to do the law notwithstanding; that they held with one consent the

attorney-general's letter to be contrary to law, and such as they could

not yield to, and that they had proceeded according to their oath to

argue the cause.

The king, who was then at Newmarket, returned answer that he would not

suffer his prerogative to be wounded, under pretext of the interest of

private persons; that it had already been more boldly dealt with in

Westminster Hall than in the reigns of preceding princes, which popular

and unlawful liberty he would no longer endure; that their oath not to

delay justice was not meant to prejudice the king's prerogative;

concluding that out of his absolute power and authority royal he

commanded them to forbear meddling any further in the cause till they

should hear his pleasure from his own mouth. Upon his return to London,

the twelve judges appeared as culprits in the council-chamber. The king

set forth their misdemeanours, both in substance and in the tone of

their letter. He observed that the judges ought to check those advocates

who presume to argue against his prerogative; that the popular lawyers

had been the men, ever since his accession, who had trodden in all

parliaments upon it, though the law could never be respected if the king

were not reverenced; that he had a double prerogative--whereof the one

was ordinary, and had relation to his private interest, which might be

and was every day disputed in Westminster Hall; the other was of a

higher nature, referring to his supreme and imperial power and

sovereignty, which ought not to be disputed or handled in vulgar

argument; but that of late the courts of common law are grown so vast

and transcendant, as they did both meddle with the king's prerogative,

and had encroached upon all other courts of justice. He commented on the

form of the letter, as highly indecent; certifying him merely what they

had done, instead of submitting to his princely judgment what they

should do.

After this harangue the judges fell upon their knees, and acknowledged

their error as to the form of the letter. But Coke entered on a defence

of the substance, maintaining the delay required to be against the law

and their oaths. The king required the chancellor and attorney-general

to deliver their opinions; which, as may be supposed, were diametrically

opposite to those of the chief justice. These being heard, the following

question was put to the judges: Whether, if at any time, in a case

depending before the judges, his majesty conceived it to concern him

either in power or profit, and thereupon required to consult with them,

and that they should stay proceedings in the meantime, they ought not to

stay accordingly? They all, except the chief justice, declared that they

would do so, and acknowledged it to be their duty; Hobart, chief justice

of the common pleas, adding that he would ever trust the justice of his

majesty's commandment. But Coke only answered, that when the case should

arise, he would do what should be fit for a judge to do. The king

dismissed them all with a command to keep the limits of their several

courts, and not to suffer his prerogative to be wounded; for he well

knew the true and ancient common law to be the most favourable to kings

of any law in the world, to which law he advised them to apply their

studies.[570]

The behaviour of the judges in this inglorious contention was such as to

deprive them of every shadow of that confidence which ought to be

reposed in their integrity. Hobart, Doddridge, and several more, were

men of much consideration for learning; and their authority in ordinary

matters of law is still held high. But, having been induced by a sense

of duty, or through the ascendancy that Coke had acquired over them, to

make a show of withstanding the court, they behaved like cowardly rebels

who surrender at the first discharge of cannon; and prostituted their

integrity and their fame, through dread of losing their offices, or

rather perhaps of incurring the unmerciful and ruinous penalties of the

star-chamber.

The government had nothing to fear from such recreants; but Coke was

suspended from his office, and not long afterwards dismissed.[571]

Having however, fortunately in this respect, married his daughter to a

brother of the Duke of Buckingham, he was restored in about three years

to the privy council, where his great experience in business rendered

him useful; and had the satisfaction of voting for an enormous fine on

his enemy the Earl of Suffolk, late high-treasurer, convicted in the

star-chamber of embezzlement.[572] In the parliament of 1621, and still

more conspicuously in that of 1628, he became, not without some

honourable inconsistency of doctrine as well as practice, the strenuous

asserter of liberty on the principles of those ancient laws which no one

was admitted to know so well as himself; redeeming, in an intrepid and

patriotic old age, the faults which we cannot avoid perceiving in his

earlier life.

_Arbitrary proceedings of the star-chamber._--The unconstitutional and

usurped authority of the star-chamber over-rode every personal right,

though an assembled parliament might assert its general privileges.

Several remarkable instances in history illustrate its tyranny and

contempt of all known laws and liberties. Two puritans having been

committed by the high-commission court, for refusing the oath _ex

officio_, employed Mr. Fuller, a bencher of Gray's Inn, to move for

their habeas corpus; which he did on the ground that the high

commissioners were not empowered to commit any of his majesty's subjects

to prison. This being reckoned a heinous offence, he was himself

committed, at Bancroft's instigation (whether by the king's personal

warrant, or that of the council-board, does not appear), and lay in gaol

to the day of his death; the archbishop constantly opposing his

discharge for which he petitioned.[573] Whitelock, a barrister and

afterwards a judge, was brought before the star-chamber on the charge of

having given a private opinion to his client, that a certain commission

issued by the Crown was illegal. This was said to be a high contempt and

slander of the king's prerogative. But, after a speech from Bacon in

aggravation of this offence, the delinquent was discharged on a humble

submission.[574] Such too was the fate of a more distinguished person

on a still more preposterous accusation. Selden, in his _History of

Tithes_, had indirectly weakened the claim of divine right, which the

high church faction pretended, and had attacked the argument from

prescription, deriving their legal institution from the age of

Charlemagne, or even a later aera. Not content with letting loose on him

some stanch polemical writers, the bishops prevailed on James to summon

the author before the council. This proceeding is as much the disgrace

of England, as that against Galileo nearly at the same time is of Italy.

Selden, like the great Florentine astronomer, bent to the rod of power,

and made rather too submissive an apology for entering on this purely

historical discussion.[575]

_Arabella Stuart._--Every generous mind must reckon the treatment of

Arabella Stuart among the hard measures of despotism, even if it were

not also grossly in violation of English law. Exposed by her high

descent and ambiguous pretensions to become the victim of ambitious

designs wherein she did not participate, that lady may be added to the

sad list of royal sufferers who have envied the lot of humble birth.

There is not, as I believe, the least particle of evidence that she was

engaged in the intrigues of the catholic party to place her on the

throne. It was, however, thought a necessary precaution to put her in

confinement a short time before the queen's death.[576] At the trial of

Raleigh she was present; and Cecil openly acquitted her of any share in

the conspiracy.[577] She enjoyed afterwards a pension from the king, and

might have died in peace and obscurity, had she not conceived an unhappy

attachment for Mr. Seymour, grandson of that Earl of Hertford, himself

so memorable an example of the perils of ambitious love. They were

privately married; but on the fact transpiring, the council, who saw

with jealous eyes the possible union of two dormant pretensions to the

Crown, committed them to the Tower.[578] They both made their escape;

but Arabella was arrested and brought back. Long and hopeless calamity

broke down her mind; imploring in vain the just privileges of an

Englishwoman, and nearly in want of necessaries, she died in prison, and

in a state of lunacy, some years afterwards.[579] And this through the

oppression of a kinsman, whose advocates are always vaunting his good

nature! Her husband became the famous Marquis of Hertford, the faithful

counsellor of Charles the First and partaker of his adversity. Lady

Shrewsbury, aunt to Arabella, was examined on suspicion of being privy

to her escape; and for refusing to answer the questions put to her, or,

in other words, to accuse herself, was sentenced to a fine of L20,000,

and discretionary imprisonment.[580]

_Somerset and Overbury._--Several events, so well known that it is

hardly necessary to dwell on them, aggravated the king's unpopularity

during this parliamentary interval. The murder of Overbury burst into

light, and revealed to an indignant nation the king's unworthy

favourite, the Earl of Somerset, and the hoary pander of that

favourite's vices, the Earl of Northampton, accomplices in that

deep-laid and deliberate atrocity. Nor was it only that men so

flagitious should have swayed the councils of this country, and rioted

in the king's favour. Strange things were whispered, as if the death of

Overbury was connected with something that did not yet transpire, and

which every effort was employed to conceal. The people, who had already

attributed Prince Henry's death to poison, now laid it at the door of

Somerset; but for that conjecture, however highly countenanced at the

time, there could be no foundation. The symptoms of the prince's

illness, and the appearances on dissection, are not such as could result

from any poison, and manifestly indicate a malignant fever, aggravated

perhaps by injudicious treatment.[581] Yet it is certain that a mystery

hangs over this scandalous tale of Overbury's murder. The insolence and

menaces of Somerset in the Tower, the shrinking apprehensions of him

which the king could not conceal, the pains taken by Bacon to prevent

his becoming desperate, and, as I suspect, to mislead the hearers by

throwing them on a wrong scent, are very remarkable circumstances to

which, after a good deal of attention, I can discover no probable clue.

But it is evident that he was master of some secret, which it would have

highly prejudiced the king's honour to divulge.[582]

_Sir Walter Raleigh._--Sir Walter Raleigh's execution was another stain

upon the reputation of James I. It is needless to mention that he fell

under a sentence passed fifteen years before, on a charge of high

treason, in plotting to raise Arabella Stuart to the throne. It is very

probable that this charge was, partly at least, founded in truth;[583]

but his conviction was obtained on the single deposition of Lord

Cobham, an accomplice, a prisoner, not examined in court, and known to

have already retracted his accusation. Such a verdict was thought

contrary to law, even in that age of ready convictions. It was a severe

measure to detain for twelve years in prison so splendid an ornament of

his country, and to confiscate his whole estate.[584] For Raleigh's

conduct in the expedition to Guiana, there is not much excuse to make.

Rashness and want of foresight were always among his failings; else he

would not have undertaken a service of so much hazard without obtaining

a regular pardon for his former offence. But it might surely be urged

that either his commission was absolutely null, or that it operated as a

pardon; since a man attainted of treason is incapable of exercising that

authority which it conferred upon him.[585] Be this as it may, no

technical reasoning could overcome the moral sense that revolted at

carrying the original sentence into execution. Raleigh might be amenable

to punishment for the deception, by which he had obtained a commission

that ought never to have issued; but the nation could not help seeing in

his death the sacrifice of the bravest and most renowned of Englishmen

to the vengeance of Spain.[586]

This unfortunate predilection for the court of Madrid had always exposed

James to his subjects' jealousy. They connected it with an inclination

at least to tolerate popery, and with a dereliction of their commercial

interests. But from the time that he fixed his hopes on the union of his

son with the infanta,[587] the popular dislike to Spain increased in

proportion to his blind preference. If the king had not systematically

disregarded the public wishes, he could never have set his heart on this

impolitic match; contrary to the wiser maxim he had laid down in his own

_Basilicon Doron_, never to seek a wife for his son except in a

protestant family. But his absurd pride made him despise the uncrowned

princes of Germany. This Spanish policy grew much more odious after the

memorable events of 1619, the election of the king's son-in-law to the

throne of Bohemia, his rapid downfall, and the conquest of the Upper

Palatinate by Austria. If James had listened to some sanguine advisers,

he would in the first instance have supported the pretensions of

Frederic. But neither his own views of public law nor true policy

dictated such an interference. The case was changed after the loss of

his hereditary dominions, and the king was sincerely desirous to restore

him to the Palatinate; but he unreasonably expected that he could effect

this through the friendly mediation of Spain, while the nation, not

perhaps less unreasonably, were clamorous for his attempting it by force

of arms. In this agitation of the public mind, he summoned the

parliament that met in February 1621.[588]