Читать книгу Constitutional History of England, Henry VII to George II (Vol. 1-3) - Hallam Henry - Страница 22

Quiet accession of James.—It might afford an illustration of the fallaciousness of political speculations, to contrast the hopes and inquietudes that agitated the minds of men concerning the inheritance of the Crown during Elizabeth's lifetime, while not less than fourteen titles were idly or mischievously reckoned up, with the perfect tranquillity that accompanied the accession of her successor.464 The house of Suffolk, whose claim was legally indisputable, if we admit the testament of Henry VIII. to have been duly executed, appear, though no public enquiry had been made into that fact, to have lost ground in popular opinion, partly through an unequal marriage of Lord Beauchamp with a private gentleman's daughter, but still more from a natural disposition to favour the hereditary line rather than the capricious disposition of a sovereign long since dead, as soon as it became consistent with the preservation of the reformed faith. Leicester once hoped, it is said, to place his brother-in-law, the Earl of Huntingdon, descended from the Duke of Clarence, upon the throne; but this pretension had been entirely forgotten. The more intriguing and violent of the catholic party, after the death of Mary, entertaining little hope that the King of Scots would abandon the principles of his education, sought to gain support to a pretended title in the King of Spain, or his daughter the infanta, who afterwards married the Archduke Albert, governor of the Netherlands. Others, abhorring so odious a claim, looked to Arabella Stuart, daughter of the Earl of Lennox, younger brother of James's father, and equally descended from the stock of Henry VII., sustaining her manifest defect of primogeniture by her birth within the realm, according to the principle of law that excluded aliens from inheritance. But this principle was justly deemed inapplicable to the Crown. Clement VIII., who had no other view than to secure the re-establishment of the catholic faith in England, and had the judgment to perceive that the ascendency of Spain would neither be endured by the nation, nor permitted by the French king, favoured this claim of Arabella, who though apparently of the reformed religion, was rather suspected at home of wavering in her faith; and entertained a hope of marrying her to the Cardinal Farnese, brother of the Duke of Parma.465 Considerations of public interest, however, unequivocally pleaded for the Scottish line; the extinction of long sanguinary feuds, and the consolidation of the British empire, Elizabeth herself, though by no means on terms of sincere friendship with James, and harassing him by intrigues with his subjects to the close of her life, seems to have always designed that he should inherit her crown. And the general expectation of what was to follow, as well from conviction of his right as from the impracticability of any effectual competition, had so thoroughly paved the way, that the council's proclamation of the King of Scots excited no more commotion than that of an heir apparent.466

Question of his title to the crown.—The popular voice in favour of James was undoubtedly raised in consequence of a natural opinion that he was the lawful heir to the throne. But this was only according to vulgar notions of right, which respect hereditary succession as something indefeasible. In point of fact, it is at least very doubtful whether James I. or any of his posterity were legitimate sovereigns, according to the sense which that word ought properly to bear. The house of Stuart no more came in by a clear title than the house of Brunswick; by such a title, I mean, as the constitution and established laws of this kingdom had recognised. No private man could have recovered an acre of land without proving a better right than they could make out to the Crown of England. What then had James to rest upon? What renders it absurd to call him and his children usurpers? He had that which the flatterers of his family most affected to disdain, the will of the people; not certainly expressed in regular suffrage or declared election, but unanimously and voluntarily ratifying that which in itself could surely give no right, the determination of the late queen's council to proclaim his accession to the throne.

It is probable that what has been just said may appear rather paradoxical to those who have not considered this part of our history; yet it is capable of satisfactory proof. This proof consists of four propositions: 1. That a lawful king of England, with the advice and consent of parliament, may make statutes to limit the inheritance of the Crown as shall seem fit;—2. That a statute passed in the 35th year of King Henry VIII. enabled that prince to dispose of the succession by his last will signed with his own hand;—3. That Henry executed such a will, by which, in default of issue from his children, the Crown was entailed upon the descendants of his younger sister Mary, Duchess of Suffolk, before those of Margaret, Queen of Scots;—4. That such descendants of Mary were living at the decease of Elizabeth.

Of these propositions, the two former can require no support; the first being one that it would be perilous to deny, and the second asserting a notorious fact. A question has, however, been raised with respect to the third proposition; for though the will of Henry, now in the chapter-house at Westminster, is certainly authentic, and is attested by many witnesses, it has been doubted whether the signature was made with his own hand, as required by the act of parliament. In the reign of Elizabeth, it was asserted by the Queen of Scots' ministers, that the king being at the last extremity, some one had put a stamp for him to the instrument. It is true, that he was in the latter part of his life accustomed to employ a stamp instead of making his signature. Many impressions of this are extant; but it is evident on the first inspection, not only that the presumed autographs in the will (for there are two) are not like these impressions, but that they are not the impressions of any stamp, the marks of the pen being very clearly discernible.467 It is more difficult to pronounce that they may not be feigned; but such is not the opinion of some who are best acquainted with Henry's handwriting;468 and what is still more to the purpose, there is no pretence for setting up such a possibility, when the story of the stamp, as to which the partisans of Mary pretended to adduce evidence, appears so clearly to be a fabrication. We have therefore every reasonable ground to maintain, that Henry did duly execute a will, postponing the Scots line to that of Suffolk.

The fourth proposition is in itself undeniable. There were descendants of Mary, Duchess of Suffolk, by her two daughters, Frances, second Duchess of Suffolk, and Eleanor, Countess of Cumberland. A story had indeed been circulated that Charles Brandon, Duke of Suffolk, was already married to a lady of the name of Mortimer at the time of his union with the king's sister. But this circumstance seems to be sufficiently explained in the treatise of Hales.469 It is somewhat more questionable, from which of his two daughters we are to derive the hereditary stock. This depends on the legitimacy of Lord Beauchamp, son of the Earl of Hertford by Catherine Grey. I have mentioned in another place the process before a commission appointed by Elizabeth, which ended in declaring that their marriage was not proved, and that their cohabitation had been illicit. The parties alleged themselves to have been married clandestinely in the Earl of Hertford's house, by a minister whom they had never before seen, and of whose name they were ignorant, in the presence only of a sister of the earl, then deceased. This entire absence of testimony, and the somewhat improbable nature of the story, at least in appearance, may still perhaps leave a shade of doubt as to the reality of the marriage. On the other hand, it was unquestionable that their object must have been a legitimate union; and such a hasty and furtive ceremony as they asserted to have taken place, while it would, if sufficiently proved, be completely valid, was necessary to protect them from the queen's indignation. They were examined separately upon oath to answer a series of the closest interrogatories, which they did with little contradiction, and a perfect agreement in the main; nor was any evidence worth mentioning adduced on the other side; so that, unless the rules of the ecclesiastical law are scandalously repugnant to common justice, their oaths entitled them to credit on the merits of the case.470 The Earl of Hertford, soon after the tranquil accession of James, having long abandoned all ambitious hopes, and seeking only to establish his children's legitimacy and the honour of one who had been the victim of their unhappy loves, petitioned the king for a review of the proceedings, alleging himself to have vainly sought this at the hands of Elizabeth. It seems probable, though I have not met with any more distinct proof of it than a story in Dugdale, that he had been successful in finding the person who solemnised the marriage.471 A commission of delegates was accordingly appointed to investigate the allegations of the earl's petition. But the jealousy that had so long oppressed this unfortunate family was not yet at rest. Questions seem to have been raised as to the lapse of time and other technical difficulties, which served as a pretext for coming to no determination on the merits.472 Hertford, or rather his son, not long after, endeavoured indirectly to bring forward the main question by means of a suit for some lands against Lord Monteagle. This is said to have been heard in the court of wards, where a jury was impanelled to try the fact. But the law officers of the Crown interposed to prevent a verdict, which, though it could not have been legally conclusive upon the marriage, would certainly have given a sanction to it in public opinion.473 The house of Seymour was now compelled to seek a renewal of their honours by another channel. Lord Beauchamp, as he had uniformly been called, took a grant of the barony of Beauchamp, and another of the earldom of Hertford, to take effect upon the death of the earl, who is not denominated his father in the patent.474 But after the return of Charles II., in the patent restoring this Lord Beauchamp's son to the dukedom of Somerset, he is recited to be heir male of the body of the first duke by his wife Anne, which establishes (if the recital of a private act of parliament can be said to establish anything) the validity of the disputed marriage.475

The descent from Eleanor, the younger daughter of Mary Brandon, who married the Earl of Cumberland, is subject to no difficulties. She left an only daughter, married to the Earl of Derby, from whom the claim devolved again upon females, and seems to have attracted less notice during the reign of Elizabeth than some others much inferior in plausibility. If any should be of opinion that no marriage was regularly contracted between the Earl of Hertford and Lady Catherine Grey, so as to make their children capable of inheritance, the title to the Crown, resulting from the statute of 35 H. 8 and the testament of that prince, will have descended, at the death of Elizabeth, on the issue of the Countess of Cumberland, the youngest daughter of the Duchess of Suffolk, Lady Frances Keyes, having died without issue.476 In neither case could the house of Stuart have a lawful claim. But I may, perhaps, have dwelled too long on a subject which, though curious and not very generally understood, can be of no sort of importance, except as it serves to cast ridicule upon those notions of legitimate sovereignty and absolute right, which it was once attempted to set up as paramount even to the great interests of a commonwealth.

There is much reason to believe that the consciousness of this defect in his parliamentary title put James on magnifying, still more than from his natural temper he was prone to do, the inherent rights of primogenitary succession, as something indefeasible by the legislature; a doctrine which, however it might suit the schools of divinity, was in diametrical opposition to our statutes.477 Through the servile spirit of those times, however, it made a rapid progress; and, interwoven by cunning and bigotry with religion, became a distinguishing tenet of the party who encouraged the Stuarts to subvert the liberties of this kingdom. In James's proclamation on ascending the throne, he sets forth his hereditary right in pompous and perhaps unconstitutional phrases. It was the first measure of parliament to pass an act of recognition, acknowledging that, immediately on the decease of Elizabeth, "the imperial crown of the realm of England did by inherent birthright, and lawful and undoubted succession, descend and come to his most excellent majesty, as being lineally, justly, and lawfully, next and sole heir of the blood royal of this realm."478 The will of Henry VIII. it was tacitly agreed by all parties to consign to oblivion: and this most wisely, not on the principles which seem rather too much insinuated in this act of recognition, but on such substantial motives of public expediency as it would have shown an equal want of patriotism and of good sense for the descendants of the house of Suffolk to have withstood.

James left a kingdom where his authority was incessantly thwarted and sometimes openly assailed, for one wherein the royal prerogative had for more than a century been strained to a very high pitch, and where there had not occurred for above thirty years the least appearance of rebellion and hardly of tumult. Such a posture of the English commonwealth, as well as the general satisfaction testified at his accession, seemed favourable circumstances to one who entertained, with less disguise if not with more earnestness than most other sovereigns, the desire of reigning with as little impediment as possible to his own will. Yet some considerations might have induced a prince who really possessed the king-craft wherein James prided himself, to take his measures with caution. The late queen's popularity had remarkably abated during her last years.479 It is a very common delusion of royal personages to triumph in the people's dislike of those into whose place they expect shortly to come, and to count upon the most transitory of possessions, a favour built on hopes that they cannot realise and discontents that they will not assuage. If Elizabeth lost a great deal of that affection her subjects had entertained for her, this may be ascribed, not so much to Essex's death, though that no doubt had its share, as to weightier taxation, to some oppressions of her government, and above all to her inflexible tenaciousness in every point of ecclesiastical discipline. It was the part of a prudent successor to preserve an undeviating economy, to remove without repugnance or delay the irritations of monopolies and purveyance, and to remedy those alleged abuses in the church, against which the greater and stronger part of the nation had so long and so loudly raised its voice.

Early unpopularity of the king.—The new king's character, notwithstanding the vicinity of Scotland, seems to have been little understood by the English at his accession. But he was not long in undeceiving them, if it be true that his popularity had vanished away before his arrival in London.480 The kingdom was full of acute wits and skilful politicians, quick enough to have seen through a less unguarded character than that of James. It was soon manifest that he was unable to wield the sceptre of the great princess whom he ridiculously affected to despise,481 so as to keep under that rising spirit, which might perhaps have grown too strong even for her control. He committed an important error in throwing away the best opportunity that had offered itself for healing the wounds of the church of England. In his way to London, the malcontent clergy presented to him what was commonly called the Millenary Petition, as if signed by 1000 ministers, though the real number was not so great.482 This petition contained no demand inconsistent with the established hierarchy, nor, as far as I am aware, which might not have been granted without inconvenience. James, however, who had not unnaturally taken an extreme disgust at the presbyterian clergy of his native kingdom, by whom his life had been perpetually harassed, showed no disposition to treat these petitioners with favour.483 The bishops had promised him an obsequiousness to which he had been little accustomed, and a zeal to enhance his prerogative which they afterwards too well displayed. His measures towards the nonconformist party had evidently been resolved upon before he summoned a few of their divines to the famous conference at Hampton Court. In the accounts that we read of this meeting, we are alternately struck with wonder at the indecent and partial behaviour of the king, and at the abject baseness of the bishops, mixed, according to the custom of servile natures, with insolence towards their opponents.484 It was easy for a monarch and eighteen churchmen to claim the victory, be the merits of their dispute what they might, over four abashed and intimidated adversaries.485 A very few alterations were made in the church service after this conference, but not of such moment as to reconcile probably a single minister to the established discipline.486 The king soon afterwards put forth a proclamation, requiring all ecclesiastical and civil officers to do their duty by enforcing conformity, and admonishing all men not to expect nor attempt any further alteration in the public service; for "he would neither let any presume that his own judgment, having determined in a matter of this weight, should be swayed to alteration by the frivolous suggestions of any light spirit, nor was he ignorant of the inconvenience of admitting innovation in things once settled by mature deliberation."487 And he had already strictly enjoined the bishops to proceed against all their clergy who did not observe the prescribed order;488 a command which Bancroft, who about this time followed Whitgift in the primacy, did not wait to have repeated. But the most enormous outrage on the civil rights of these men was the commitment to prison of ten among those who had presented the Millenary Petition; the judges having declared in the star-chamber, that it was an offence finable at discretion, and very near to treason and felony, as it tended to sedition and rebellion.489 By such beginnings did the house of Stuart indicate the course it would steer.

An entire year elapsed, chiefly on account of the unhealthiness of the season in London, before James summoned his first parliament. It might perhaps have been more politic to have chosen some other city; for the length of this interval gave time to form a disadvantageous estimate of his administration and to alienate beyond recovery the puritanical party. Libels were already in circulation, reflecting with a sharpness never before known on the king's personal behaviour, which presented an extraordinary contrast to that of Elizabeth.490 The nation, it is easy to perceive, cheated itself into a persuasion, that it had borne that princess more affection than it had really felt, especially in her latter years; the sorrow of subjects for deceased monarchs being often rather inspired by a sense of evil than a recollection of good. James however little heeded the popular voice, satisfied with the fulsome and preposterous adulation of his court, and intent on promulgating certain maxims concerning the dignity and power of princes, which he had already announced in his discourse on the "True Law of Free Monarchies," printed some years before in Scotland. In this treatise, after laying it down that monarchy is the true pattern of divinity, and proving the duty of passive obedience, rather singularly, from that passage in the book of Samuel where the prophet so forcibly paints the miseries of absolute power, he denies that the kings of Scotland owe their crown to any primary contract, Fergus, their progenitor, having conquered the country with his Irish; and advances more alarming tenets, as that the king makes daily statutes and ordinances enjoining such pains thereto as he thinks meet, without any advice of parliament or estates; that general laws made publicly in parliament may by the king's authority be mitigated or suspended upon causes only known to him; and that, "although a good king will frame all his actions to be according to the law, yet he is not bound thereto, but of his own will and for example-giving to his subjects."491 These doctrines, if not absolutely novel, seemed peculiarly indecent as well as dangerous, from the mouth of a sovereign. Yet they proceeded far more from James's self-conceit and pique against the republican spirit of presbyterianism than from his love of power, which (in its exercise I mean, as distinguished from its possession) he did not feel in so eminent a degree as either his predecessor or his son.

In the proclamation for calling together his first parliament, the king, after dilating, as was his favourite practice, on a series of rather common truths in very good language, charges all persons interested in the choice of knights for the shire to select them out of the principal knights or gentlemen within the county; and for the burgesses, that choice be made of men of sufficiency and discretion, without desire to please parents and friends, that often speak for their children or kindred; avoiding persons noted in religion for their superstitious blindness one way, or for their turbulent humour other ways. We do command, he says, that no bankrupts or outlaws be chosen, but men of known good behaviour and sufficient livelihood. The sheriffs are charged not to direct a writ to any ancient town being so ruined that there are not residents sufficient to make such choice, and of whom such lawful election may be made. All returns are to be filed in chancery, and if any be found contrary to this proclamation, the same to be rejected as unlawful and insufficient, and the place to be fined for making it; and any one elected contrary to the purport, effect, and true meaning of this proclamation, to be fined and imprisoned.492

Question of Fortescue and Goodwin's election.—Such an assumption of control over parliamentary elections was a glaring infringement of those privileges which the House of Commons had been steadily and successfully asserting in the late reign. An opportunity very soon occurred of contesting this important point. At the election for the county of Buckingham, Sir Francis Goodwin had been chosen in preference to Sir John Fortescue, a privy counsellor, and the writ returned into chancery. Goodwin having been some years before outlawed, the return was sent back to the sheriff, as contrary to the late proclamation; and, on a second election, Sir John Fortescue was chosen. This matter being brought under the consideration of the House of Commons, a very few days after the opening of the session, gave rise to their first struggle with the new king. It was resolved, after hearing the whole case, and arguments by members on both sides, that Goodwin was lawfully elected and returned, and ought to be received. The first notice taken of this was by the Lords, who requested that this might be discussed in a conference between the two houses, before any other matter should be proceeded in. The Commons returned for answer, that they conceived it not according to the honour of the house to give account of any of their proceedings. The Lords replied, that having acquainted his majesty with the matter, he desired there might be a conference thereon between the two houses. Upon this message, the Commons came to a resolution that the speaker with a numerous deputation of members should attend his majesty, and report the reasons of their proceedings in Goodwin's case. In this conference with the king, as related by the speaker, it appears that he had shown some degree of chagrin, and insisted that the house ought not to meddle with returns, which could only be corrected by the court of chancery; and that since they derived all matters of privilege from him and his grant, he expected they should not be turned against him. He ended by directing the house to confer with the judges. After a debate which seems, from the minutes in the journals, to have been rather warm, it was unanimously agreed not to have a conference with the judges; but the reasons of the house's proceeding were laid before the king in a written statement or memorial, answering the several objections that his majesty had alleged. This they sent to the Lords, requesting them to deliver it to the king, and to be mediators in behalf of the house for his majesty's satisfaction; a message in rather a lower tone than they had previously taken. The king sending for the speaker privately, told him that he was now distracted in judgment as to the merits of the case; and for his further satisfaction, desired and commanded, as an absolute king, that there should be a conference between the house and the judges. Upon this unexpected message, says the journal, there grew some amazement and silence. But at last one stood up and said: "The prince's command is like a thunderbolt; his command upon our allegiance like the roaring of a lion. To his command there is no contradiction; but how or in what manner we should now proceed to perform obedience, that will be the question."493 It was resolved to confer with the judges in presence of the king and council. In this second conference, the king, after some favourable expressions towards the house, and conceding that it was a court of record, and judge of returns, though not exclusively of the chancery, suggested that both Goodwin and Fortescue should be set aside, by issuing a new writ. This compromise was joyfully accepted by the greater part of the Commons, after the dispute had lasted nearly three weeks.494 They have been considered as victorious, upon the whole, in this contest, though they apparently fell short in the result of what they had obtained some years before. But no attempt was ever afterwards made to dispute their exclusive jurisdiction.495

Shirley's case of privilege.—The Commons were engaged during this session in the defence of another privilege, to which they annexed perhaps a disproportionate importance. Sir Thomas Shirley, a member, having been taken in execution on a private debt before their meeting, and the warden of the Fleet prison refusing to deliver him up, they were at a loss how to obtain his release. Several methods were projected; among which, that of sending a party of members with the serjeant and his mace, to force open the prison, was carried on a division; but the speaker hinting that such a vigorous measure would expose them individually to prosecution as trespassers, it was prudently abandoned. The warden, though committed by the house to a dungeon in the Tower, continued obstinate, conceiving that by releasing his prisoner he should become answerable for the debt. They were evidently reluctant to solicit the king's interference; but aware at length that their own authority was insufficient, "the vice-chamberlain, according to a memorandum in the journals, was privately instructed to go to the king, and humbly desire that he would be pleased to command the warden, on his allegiance, to deliver up Sir Thomas; not as petitioned for by the house, but as if himself thought it fit, out of his own gracious judgment." By this stratagem, if we may so term it, they saved the point of honour, and recovered their member.496 The warden's apprehensions, however, of exposing himself to an action for the escape gave rise to a statute, which empowers the creditor to sue out a new execution against any one who shall be delivered by virtue of his privilege of parliament, after that shall have expired, and discharges from liability those out of whose custody such persons shall be delivered. This is the first legislative recognition of privilege.497 The most important part of the whole is a proviso subjoined to the act, "That nothing therein contained shall extend to the diminishing of any punishment to be hereafter, by censure in parliament, inflicted upon any person who hereafter shall make or procure to be made any such arrest as is aforesaid." The right of commitment, in such cases at least, by a vote of the House of Commons, is here unequivocally maintained.

Complaints of grievances.—It is not necessary to repeat the complaints of ecclesiastical abuses preferred by this House of Commons, as by those that had gone before them. James, by siding openly with the bishops, had given alarm to the reforming party. It was anticipated that he would go farther than his predecessor, whose uncertain humour, as well as the inclinations of some of her advisers, had materially counterbalanced the dislike she entertained of the innovators. A code of new canons had recently been established in convocation with the king's assent, obligatory perhaps upon the clergy, but tending to set up an unwarranted authority over the whole nation; imposing oaths and exacting securities in certain cases from the laity, and aiming at the exclusion of nonconformists from all civil rights.498 Against these canons, as well as various other grievances, the Commons remonstrated in a conference with the upper house, but with little immediate effect.499 They made a more remarkable effort in attacking some public mischiefs of a temporal nature, which, though long the theme of general murmurs, were closely interwoven with the ancient and undisputed prerogatives of the Crown. Complaints were uttered, and innovations projected by the Commons of 1604, which Elizabeth would have met with an angry message, and perhaps visited with punishment on the proposers. James however was not entirely averse to some of the projected alterations, from which he hoped to derive a pecuniary advantage. The two principal grievances were, purveyance and the incidents of military tenure. The former had been restrained by not less than thirty-six statutes, as the Commons assert in a petition to the king; in spite of which the impressing of carts and carriages, and the exaction of victuals for the king's use, at prices far below the true value, and in quantity beyond what was necessary, continued to prevail under authority of commissions from the board of green cloth, and was enforced, in case of demur or resistance, by imprisonment under their warrant. The purveyors, indeed, are described as living at free quarters upon the country, felling woods without the owners' consent, and commanding labour with little or no recompense.500 Purveyance was a very ancient topic of remonstrance; but both the inadequate revenues of the Crown, and a supposed dignity attached to this royal right of spoil, had prevented its abolition from being attempted. But the Commons seemed still more to trench on the pride of our feudal monarchy, when they proposed to take away guardianship in chivalry; that lucrative tyranny, bequeathed by Norman conquerors, the custody of every military tenant's estate until he should arrive at twenty-one, without accounting for the profits. This, among other grievances, was referred to a committee, in which Bacon took an active share. They obtained a conference on this subject with the Lords, who refused to agree to a bill for taking guardianship in chivalry away, but offered to join in a petition for that purpose to the king, since it could not be called a wrong, having been patiently endured by their ancestors as well as themselves, and being warranted by the law of the land. In the end the Lords advised to drop the matter for the present, as somewhat unseasonable in the king's first parliament.501

In the midst of these testimonies of dissatisfaction with the civil and ecclesiastical administration, the House of Commons had not felt much willingness to greet the new sovereign with a subsidy. No demand had been made upon them, far less any proof given of the king's exigencies; and they doubtless knew by experience, that an obstinate determination not to yield to any of their wishes would hardly be shaken by a liberal grant of money. They had even passed the usual bill granting tonnage and poundage for life, with certain reservations that gave the court offence, and which apparently they afterwards omitted. But there was so little disposition to do anything further, that the king sent a message to express his desire that the Commons would not enter upon the business of a subsidy, and assuring them that he would not take unkindly their omission. By this artifice, which was rather transparent, he avoided the not improbable mortification of seeing the proposal rejected.502

Commons' vindication of themselves.—The king's discontent at the proceedings of this session, which he seems to have rather strongly expressed in some speech to the Commons that has not been recorded,503 gave rise to a very remarkable vindication, prepared by a committee at the house's command, and entitled "A Form of Apology and Satisfaction to be delivered to his Majesty," though such may not be deemed the most appropriate title. It contains a full and pertinent justification of all those proceedings at which James had taken umbrage, and asserts, with respectful boldness and in explicit language, the constitutional rights and liberties of parliament. If the English monarchy had been reckoned as absolute under the Plantagenets and Tudors as Hume has endeavoured to make it appear, the Commons of 1604 must have made a surprising advance in their notions of freedom since the king's accession. Adverting to what they call the misinformation openly delivered to his majesty in three things; namely, that their privileges were not of right, but of grace only, renewed every parliament on petition; that they are no court of record, nor yet a court that can command view of records; that the examination of the returns of writs for knights and burgesses is without their compass, and belonging to the chancery: assertions, they say, "tending directly and apparently to the utter overthrow of the very fundamental privileges of our house, and therein of the rights and liberties of the whole Commons of your realm of England, which they and their ancestors, from time immemorial, have undoubtedly enjoyed under your majesty's most noble progenitors;" and against which they expressly protest, as derogatory in the highest degree to the true dignity and authority of parliament, desiring "that such their protestation might be recorded to all posterity;" they maintain, on the contrary, "1. That their privileges and liberties are their right and inheritance, no less than their very lands and goods; 2. That they cannot be withheld from them, denied or impaired, but with apparent wrong to the whole state of the realm; 3. That their making request, at the beginning of a parliament, to enjoy their privilege, is only an act of manners, and does not weaken their right; 4. That their house is a court of record, and has been ever so esteemed; 5. That there is not the highest standing court in this land that ought to enter into competition, either for dignity or authority, with this high court of parliament, which, with his majesty's royal assent, gives law to other courts, but from other courts receives neither laws nor orders; 6. That the House of Commons is the sole proper judge of return of all such writs, and the election of all such members as belong to it, without which the freedom of election were not entire." They aver that in this session the privileges of the house have been more universally and dangerously impugned than ever, as they suppose, since the beginnings of parliaments. That in regard to the late queen's sex and age, and much more upon care to avoid all trouble, which by wicked practice might have been drawn to impeach the quiet of his majesty's right in the succession, those actions were then passed over which they hoped in succeeding times to redress and rectify; whereas, on the contrary, in this parliament, not privileges, but the whole freedom of the parliament and realm had been hewed from them. "What cause," they proceed, "we, your poor Commons, have to watch over our privileges is manifest in itself to all men. The prerogatives of princes may easily and do daily grow. The privileges of the subject are for the most part at an everlasting stand. They may be by good providence and care preserved; but being once lost, are not recovered but with much disquiet." They then enter in detail on the various matters that had arisen during the session—the business of Goodwin's election, of Shirley's arrest, and some smaller matters of privilege to which my limits have not permitted me to allude. "We thought not," speaking of the first, "that the judge's opinion, which yet in due place we greatly reverence, being delivered what the common law was, which extends only to inferior and standing courts, ought to bring any prejudice to this high court of parliament, whose power being above the law is not founded on the common law, but have their rights and privileges peculiar to themselves." They vindicate their endeavours to obtain redress of religious and public grievances: "Your majesty would be misinformed," they tell him, "if any man should deliver that the kings of England have any absolute power in themselves, either to alter religion, which God defend should be in the power of any mortal man whatsoever, or to make any laws concerning the same, otherwise than as in temporal causes, by consent of parliament. We have and shall at all times by our oaths acknowledge, that your majesty is sovereign lord and supreme governor in both."504 Such was the voice of the English Commons in 1604, at the commencement of that great conflict for their liberties, which is measured by the line of the house of Stuart. But it is not certain that this apology was ever delivered to the king, though he seems to allude to it in a letter written to one of his ministers about the same time.505

Session, 1605.—The next session, which is remarkable on account of the conspiracy of some desperate men to blow up both Houses of Parliament with gunpowder on the day of their meeting, did not produce much worthy of our notice. A bill to regulate, or probably to suppress, purveyance was thrown out by the Lords. The Commons sent up another bill to the same effect, which the upper house rejected without discussion, by a rule then perhaps first established, that the same bill could not be proposed twice in one session.506 They voted a liberal subsidy, which the king, who had reigned three years without one, had just cause to require. For though he had concluded a peace with Spain soon after his accession, yet the late queen had left a debt of £400,000, and other charges had fallen on the Crown. But the bill for this subsidy lay a good while in the House of Commons, who came to a vote that it should not pass till their list of grievances was ready to be presented. No notice was taken of these till the next session beginning in November 1606, when the king returned an answer to each of the sixteen articles in which matters of grievance were alleged. Of these the greater part refer to certain grants made to particular persons in the nature of monopolies; the king either defending these in his answer, or remitting the parties to the courts of law to try their legality.

Union with Scotland debated.—The principal business of this third session, as it had been of the last, was James's favourite scheme of a perfect union between England and Scotland. It may be collected, though this was never explicitly brought forward, that his views extended to a legislative incorporation.507 But in all the speeches on this subject, and especially his own, there is a want of distinctness as to the object proposed. He dwells continually upon the advantage of unity of laws, yet extols those of England as the best, which the Scots, as was evident, had no inclination to adopt. Wherefore then was delay to be imputed to our English parliament, if it waited for that of the sister kingdom? And what steps were recommended towards this measure, that the Commons can be said to have declined, except only the naturalisation of the ante-nati, or Scots born before the king's accession to our throne, which could only have a temporary effect?508 Yet Hume, ever prone to eulogise this monarch at the expense of his people, while he bestows merited praise on his speech in favour of the union, which is upon the whole a well-written and judicious performance, charges the parliament with prejudice, reluctance, and obstinacy. The code, as it may be called, of international hostility, those numerous statutes treating the northern inhabitants of this island as foreigners and enemies, were entirely abrogated. And if the Commons, while both the theory of our own constitution was so unsettled and its practice so full of abuse, did not precipitately give in to schemes that might create still further difficulty in all questions between the Crown and themselves, schemes, too, which there was no imperious motive for carrying into effect at that juncture, we may justly consider it as an additional proof of their wisdom and public spirit. Their slow progress however in this favourite measure, which, though they could not refuse to entertain it, they endeavoured to defeat by interposing delays and impediments, gave much offence to the king, which he expressed in a speech to the two houses, with the haughtiness, but not the dignity, of Elizabeth. He threatened them to live alternately in the two kingdoms, or to keep his court at York; and alluded, with peculiar acrimony, to certain speeches made in the house, wherein probably his own fame had not been spared.509 "I looked," he says, "for no such fruits at your hands, such personal discourses and speeches, which of all other, I looked you should avoid, as not beseeming the gravity of your assembly. I am your king; I am placed to govern you, and shall answer for your errors; I am a man of flesh and blood, and have my passions and affections as other men; I pray you, do not too far move me to do that which my power may tempt me unto."510

Continual bickerings between the Crown and Commons.—It is most probable, as experience had shown, that such a demonstration of displeasure from Elizabeth would have ensured the repentant submission of the Commons. But within a few years of the most unbroken tranquillity, there had been one of those changes of popular feeling which a government is seldom observant enough to watch. Two springs had kept in play the machine of her administration, affection and fear; attachment arising from the sense of dangers endured, and glory achieved for her people, tempered, though not subdued, by the dread of her stern courage and vindictive rigour. For James not a particle of loyal affection lived in the hearts of the nation, while his easy and pusillanimous, though choleric disposition, had gradually diminished those sentiments of apprehension which royal frowns used to excite. The Commons, after some angry speeches, resolved to make known to the king through the speaker their desire, that he would listen to no private reports, but take his information of the house's meaning from themselves; that he would give leave to such persons as he had blamed for their speeches to clear themselves in his hearing; and that he would by some gracious message make known his intention that they should deliver their opinions with full liberty, and without fear. The speaker next day communicated a slight but civil answer he had received from the king, importing his wish to preserve their privileges, especially that of liberty of speech.511 This, however, did not prevent his sending a message a few days afterwards, commenting on their debates, and on some clauses they had introduced into the bill for the abolition of all hostile laws.512 And a petition having been prepared by a committee under the house's direction for better execution of the laws against recusants, the speaker, on its being moved that the petition be read, said that his majesty had taken notice of the petition as a thing belonging to himself, concerning which it was needless to press him. This interference provoked some members to resent it, as an infringement of their liberties. The speaker replied that there were many precedents in the late queen's time, where she had restrained the house from meddling in politics of divers kinds. This, as a matter of fact, was too notorious to be denied. A motion was made for a committee "to search for precedents of ancient as well as later times that do concern any messages from the sovereign magistrate, king or queen of this realm, touching petitions offered to the House of Commons." The king now interposed by a second message, that, though the petition were such as the like had not been read in the house, and contained matter whereof the house could not properly take knowledge, yet if they thought good to have it read, he was not against the reading. And the Commons were so well satisfied with this concession, that no further proceedings were had; and the petition, says the journal, was at length, with general liking, agreed to sleep. It contained some strong remonstrances against ecclesiastical abuses, and in favour of the deprived and silenced puritans, but such as the house had often before in various modes brought forward.513

The ministry betrayed, in a still more pointed manner, their jealousy of any interference on the part of the Commons with the conduct of public affairs in a business of a different nature. The pacification concluded with Spain in 1604, very much against the general wish,514 had neither removed all grounds of dispute between the governments, nor allayed the dislike of the nations. Spain advanced in that age the most preposterous claims to an exclusive navigation beyond the tropic, and to the sole possession of the American continent; while the English merchants, mindful of the lucrative adventures of the queen's reign, could not be restrained from trespassing on the rich harvest of the Indies by contraband and sometimes piratical voyages. These conflicting interests led of course to mutual complaints of maritime tyranny and fraud; neither likely to be ill-founded, where the one party was as much distinguished for the despotic exercise of vast power, as the other by boldness and cupidity. It was the prevailing bias of the king's temper to keep on friendly terms with Spain, or rather to court her with undisguised and impolitic partiality.515 But this so much thwarted the prejudices of his subjects that no part perhaps of his administration had such a disadvantageous effect on his popularity. The merchants presented to the Commons, in this session of 1607, a petition upon the grievances they sustained from Spain, entering into such a detail of alleged cruelties as was likely to exasperate that assembly. Nothing however was done for a considerable time, when after receiving the report of a committee on the subject, the house prayed a conference with the Lords. They, who acted in this and the preceding session as the mere agents of government, intimated in their reply, that they thought it an unusual matter for the Commons to enter upon, and took time to consider about a conference. After some delay this was granted, and Sir Francis Bacon reported its result to the lower house. The Earl of Salisbury managed the conference on the part of the Lords. The tenor of his speech, as reported by Bacon, is very remarkable. After discussing the merits of the petition, and considerably extenuating the wrongs imputed to Spain, he adverted to the circumstance of its being presented to the Commons. The Crown of England was invested, he said, with an absolute power of peace and war; and inferred, from a series of precedents which he vouched, that petitions made in parliament, intermeddling with such matters, had gained little success; that great inconveniences must follow from the public debate of a king's designs, which, if they take wind, must be frustrated; and that if parliaments have ever been made acquainted with matter of peace or war in a general way, it was either when the king and council conceived that it was material to have some declaration of the zeal and affection of the people, or else when they needed money for the charge of a war, in which case they should be sure enough to hear of it; that the Lords would make a good construction of the Commons' desire, that it sprang from a forwardness to assist his majesty's future resolutions, rather than a determination to do that wrong to his supreme power which haply might appear to those who were prone to draw evil inferences from their proceedings. The Earl of Northampton, who also bore a part in this conference, gave as one reason among others, why the Lords could not concur in forwarding the petition to the Crown, that the composition of the House of Commons was in its first foundation intended merely to be of those that have their residence and vocation in the places for which they serve, and therefore to have a private and local wisdom according to that compass, and so not fit to examine or determine secrets of state which depend upon such variety of circumstances; and although he acknowledged that there were divers gentlemen in the house of good capacity and insight into matters of state, yet that was the accident of the person, and not the intention of the place; and things were to be taken in the institution, and not in the practice. The Commons seemed to have acquiesced in this rather contemptuous treatment. Several precedents indeed might have been opposed to those of the Earl of Salisbury, wherein the Commons, especially under Richard II. and Henry VI., had assumed a right of advising on matters of peace and war. But the more recent usage of the constitution did not warrant such an interference. It was however rather a bold assertion, that they were not the proper channel through which public grievances, or those of so large a portion of the community as the merchants, ought to be represented to the throne.516

Impositions on merchandise without consent of parliament.—During the interval of two years and a half that elapsed before the commencement of the next session, a decision had occurred in the court of exchequer, which threatened the entire overthrow of our constitution. It had always been deemed the indispensable characteristic of a limited monarchy, however irregular and inconsistent might be the exercise of some prerogatives, that no money could be raised from the subject without the consent of the estates. This essential principle was settled in England, after much contention, by the statute entitled Confirmatio Chartarum, in the 25th year of Edward I. More comprehensive and specific in its expression than the Great Charter of John, it abolishes all "aids, tasks, and prises, unless by the common assent of the realm, and for the common profit thereof, saving the ancient aids and prises due and accustomed;" the king explicitly renouncing the custom he had lately set on wool. Thus the letter of the statute and the history of the times conspire to prove, that impositions on merchandise at the ports, to which alone the word prises was applicable, could no more be levied by the royal prerogative after its enactment, than internal taxes upon landed or movable property, known in that age by the appellations of aids and tallages. But as the former could be assessed with great ease, and with no risk of immediate resistance, and especially as certain ancient customs were preserved by the statute,517 so that a train of fiscal officers, and a scheme of regulations and restraints upon the export and import of goods became necessary, it was long before the sovereigns of this kingdom could be induced constantly to respect this part of the law. Hence several remonstrances from the Commons under Edward III. against the maletolts or unjust exactions upon wool, by which, if they did not obtain more than a promise of effectual redress, they kept up their claim, and perpetuated the recognition of its justice, for the sake of posterity. They became powerful enough to enforce it under Richard II., in whose time there is little clear evidence of illegal impositions; and from the accession of the house of Lancaster it is undeniable that they ceased altogether. The grant of tonnage and poundage for the king's life, which from the time of Henry V. was made in the first parliament of every reign, might perhaps be considered as a tacit compensation to the Crown for its abandonment of these irregular extortions.

Henry VII., the most rapacious, and Henry VIII., the most despotic, of English monarchs, did not presume to violate this acknowledged right. The first who had again recourse to this means of enhancing the revenue was Mary, who, in the year 1557, set a duty upon cloths exported beyond seas, and afterwards another on the importation of French wines. The former of those was probably defended by arguing, that there was already a duty on wool; and if cloth, which was wool manufactured, could pass free, there would be a fraud on the revenue. The merchants however did not acquiesce in this arbitrary imposition, and as soon as Elizabeth's accession gave hopes of a restoration of English government, they petitioned to be released from this burthen. The question appears, by a memorandum in Dyer's Reports, to have been extra-judicially referred to the judges, unless it were rather as assistants to the privy council that their opinion was demanded. This entry concludes abruptly, without any determination of the judges.518 But we may presume, that if any such had been given in favour of the Crown, it would have been made public. And that the majority of the bench would not have favoured this claim of the Crown, we may strongly presume from their doctrine in a case of the same description, wherein they held the assessment of treble custom on aliens for violation of letters patent to be absolutely against the law.519 The administration, however, would not release this duty, which continued to be paid under Elizabeth. She also imposed one upon sweet wines. We read of no complaint in parliament against this novel taxation; but it is alluded to by Bacon in one of his tracts during the queen's reign, as a grievance alleged by her enemies. He defends it, as laid only on a foreign merchandise, and a delicacy which might be forborne.520 But considering Elizabeth's unwillingness to require subsidies from the common, and the rapid increase of foreign traffic during her reign, it might be asked why she did not extend these duties to other commodities, and secure to herself no trifling annual revenue. What answer can be given, except that, aware how little any unparliamentary levying of money could be supported by law or usage, her ministers shunned to excite attention to these innovations which wanted hitherto the stamp of time to give them prescriptive validity?521

James had imposed a duty of five shillings per hundredweight on currants, over and above that of two shillings and sixpence, which was granted by the statute of tonnage and poundage.522 Bates, a Turkey merchant, having refused payment, an information was exhibited against him in the exchequer. Judgment was soon given for the Crown. The courts of justice, it is hardly necessary to say, did not consist of men conscientiously impartial between the king and the subject; some corrupt with hope of promotion, many more fearful of removal, or awe-struck by the frowns of power. The speeches of Chief Baron Fleming, and of Baron Clark, the only two that are preserved in Lane's Reports, contain propositions still worse than their decision, and wholly subversive of all liberty. "The king's power," it was said, "is double—ordinary and absolute; and these have several laws and ends. That of the ordinary is for the profit of particular subjects, exercised in ordinary courts, and called common law, which cannot be changed in substance without parliament. The king's absolute power is applied to no particular person's benefit, but to the general safety; and this is not directed by the rules of common law, but more properly termed policy and government, varying according to his wisdom for the common good; and all things done within those rules are lawful. The matter in question is matter of state, to be ruled according to policy by the king's extraordinary power. All customs (duties so called) are the effects of foreign commerce; but all affairs of commerce and all treaties with foreign nations belong to the king's absolute power; he therefore who has power over the cause, must have it also over the effect. The seaports are the king's gates, which he may open and shut to whom he pleases." The ancient customs on wine and wool are asserted to have originated in the king's absolute power, and not in a grant of parliament; a point, whether true or not, of no great importance, if it were acknowledged, that many statutes had subsequently controlled this prerogative. But these judges impugned the authority of statutes derogatory to their idol. That of 45 E. 3, c. 4, that no new imposition should be laid on wool or leather, one of them maintains, did not bind the king's successors; for the right to impose such duties was a principal part of the Crown of England, which the king could not diminish. They extolled the king's grace in permitting the matter to be argued, commenting at the same time on the insolence shown in disputing so undeniable a claim. Nor could any judges be more peremptory in resisting an attempt to overthrow the most established precedents, than were these barons of King James's exchequer, in giving away those fundamental liberties in which every Englishman was inherited.523

Remonstrances against impositions in session of 1610.—The immediate consequence of this decision was a book of rates, published in July 1608, under the authority of the great seal, imposing heavy duties upon almost all merchandise.524 But the judgment of the court of exchequer did not satisfy men jealous of the Crown's encroachments. The imposition on currants had been already noticed as a grievance by the House of Commons in 1606. But the king answered that the question was in a course for legal determination; and the Commons themselves, which is worthy of remark, do not appear to have entertained any clear persuasion that the impost was contrary to law.525 In the session, however, which began in February 1610, they had acquired new light by sifting the legal authorities, and instead of submitting their opinions to the courts of law, which were in truth little worthy of such deference, were the more provoked to remonstrate against the novel usurpation those servile men had endeavoured to prop up. Lawyers, as learned probably as most of the judges, were not wanting in their ranks. The illegality of impositions was shown in two elaborate speeches by Hakewill and Yelverton.526 And the country gentlemen, who, though less deeply versed in precedents, had too good sense not to discern that the next step would be to levy taxes on their lands, were delighted to find that there had been an old English constitution not yet abrogated, which would bear them out in their opposition. When the king therefore had intimated by a message, and afterwards in a speech, his command not to enter on the subject, couched in that arrogant tone of despotism which this absurd prince affected,527 they presented a strong remonstrance against this inhibition; claiming "as an ancient, general, and undoubted right of parliament to debate freely all matters which do probably concern the subject; which freedom of debate being once foreclosed, the essence of the liberty of parliament is withal dissolved. For the judgment given by the exchequer, they take not on them to review it, but desire to know the reasons whereon it was grounded; especially as it was generally apprehended that the reasons of that judgment extended much farther, even to the utter ruin of the ancient liberty of this kingdom, and of the subjects' right of property in their lands and goods."528 "The policy and constitution of this your kingdom (they say) appropriates unto the kings of this realm, with the assent of the parliament, as well the sovereign power of making laws, as that of taxing, or imposing upon the subjects' goods or merchandises, as may not, without their consents, be altered or changed. This is the cause that the people of this kingdom, as they ever showed themselves faithful and loving to their kings, and ready to aid them, in all their just occasions, with voluntary contributions; so have they been ever careful to preserve their own liberties and rights, when anything hath been done to prejudice or impeach the same. And therefore when their princes, occasioned either by their wars, or their over-great bounty, or by any other necessity, have without consent of parliament set impositions, either within the land, or upon commodities either exported or imported by the merchants, they have, in open parliament, complained of it, in that it was done without their consents: and thereupon never failed to obtain a speedy and full redress, without any claim made by the kings, of any power or prerogative in that point. And though the law of property be original, and carefully preserved by the common laws of this realm, which are as ancient as the kingdom itself; yet these famous kings, for the better contentment and assurance of their loving subjects, agreed, that this old fundamental right should be further declared and established by act of parliament. Wherein it is provided, that no such charges should ever be laid upon the people, without their common consent, as may appear by sundry records of former times. We, therefore, your majesty's most humble Commons assembled in parliament, following the example of this worthy case of our ancestors, and out of a duty of those for whom we serve, finding that your majesty, without advice or consent of parliament, hath lately, in time of peace, set both greater impositions, and far more in number, than any your noble ancestors did ever in time of war, have, with all humility, presumed to present this most just and necessary petition unto your majesty, that all impositions set without the assent of parliament may be quite abolished and taken away; and that your majesty, in imitation likewise of your noble progenitors, will be pleased, that a law be made during this session of parliament, to declare that all impositions set, or to be set upon your people, their goods or merchandises, save only by common assent in parliament, are and shall be void."529 They proceeded accordingly, after a pretty long time occupied in searching for precedents, to pass a bill taking away impositions; which, as might be anticipated, did not obtain the concurrence of the upper house.

Doctrine of king's absolute power inculcated by clergy.—The Commons had reason for their apprehensions. This doctrine of the king's absolute power beyond the law had become current with all who sought his favour, and especially with the high church party. The convocation had in 1606 drawn up a set of canons, denouncing as erroneous a number of tenets hostile in their opinion to royal government. These canons, though never authentically published till a later age, could not have been secret. They consist of a series of propositions or paragraphs, to each of which an anathema of the opposite error is attached; deducing the origin of government from the patriarchal regimen of families, to the exclusion of any popular choice. In those golden days the functions both of king and priest were, as they term it, "the prerogatives of birthright;" till the wickedness of mankind brought in usurpation, and so confused the pure stream of the fountain with its muddy runnels, that we must now look to prescription for that right which we cannot assign to primogeniture. Passive obedience in all cases without exception to the established monarch is inculcated.530

It is not impossible that a man might adopt this theory of the original of government, unsatisfactory as it must appear on reflection, without deeming it incompatible with our mixed and limited monarchy. But its tendency was evidently in a contrary direction. The king's power was of God, that of the parliament only of man, obtained perhaps by rebellion; but out of rebellion what right could spring? Or were it even by voluntary concession, could a king alienate a divine gift, and infringe the order of Providence? Could his grants, if not in themselves null, avail against his posterity, heirs like himself under the great feoffment of creation? These consequences were at least plausible; and some would be found to draw them. And indeed if they were never explicitly laid down, the mere difference of respect with which mankind could not but contemplate a divine and human, a primitive or paramount, and a derivative authority, would operate as a prodigious advantage in favour of the Crown.

The real aim of the clergy in thus enormously enhancing the pretensions of the Crown was to gain its sanction and support for their own. Schemes of ecclesiastical jurisdiction, hardly less extensive than had warmed the imagination of Becket, now floated before the eyes of his successor Bancroft. He had fallen indeed upon evil days, and perfect independence on the temporal magistrate could no longer be attempted; but he acted upon the refined policy of making the royal supremacy over the church, which he was obliged to acknowledge, and professed to exaggerate, the very instrument of its independence upon the law. The favourite object of the bishops in this age was to render their ecclesiastical jurisdiction, no part of which had been curtailed in our hasty reformation, as unrestrained as possible by the courts of law. These had been wont, down from the reign of Henry II., to grant writs of prohibition, whenever the spiritual courts transgressed their proper limits; to the great benefit of the subject, who would otherwise have lost his birthright of the common law, and been exposed to the defective, not to say iniquitous and corrupt, procedure of the ecclesiastical tribunals. But the civilians, supported by the prelates, loudly complained of these prohibitions, which seem to have been much more frequent in the latter years of Elizabeth and the reign of James, than in any other period. Bancroft accordingly presented to the star-chamber, in 1605, a series of petitions in the name of the clergy, which Lord Coke has denominated Articuli Cleri, by analogy to some similar representations of that order under Edward II.531 In these it was complained that the courts of law interfered by continual prohibitions with a jurisdiction as established and as much derived from the king as their own, either in cases which were clearly within that jurisdiction's limits, or on the slightest suggestion of some matter belonging to the temporal court. It was hinted that the whole course of granting prohibitions was an encroachment of the king's bench and common pleas, and that they could regularly issue only out of chancery. To each of these articles of complaint, extending to twenty-five, the judges made separate answers, in a rough, and, some might say, a rude style, but pointed and much to the purpose; vindicating in every instance their right to take cognisance of every collateral matter springing out of an ecclesiastical suit, and repelling the attack upon their power to issue prohibitions, as a strange presumption. Nothing was done, nor, thanks to the firmness of the judges, could be done, by the council in this respect. For the clergy had begun by advancing that the king's authority was sufficient to reform what was amiss in any of his own courts, all jurisdiction spiritual and temporal being annexed to his Crown. But it was positively and repeatedly denied in reply, that anything less than an act of parliament could alter the course of justice established by law. This effectually silenced the archbishop, who knew how little he had to hope from the Commons. By the pretensions made for the church in this affair, he exasperated the judges, who had been quite sufficiently disposed to second all rigorous measures against the puritan ministers, and aggravated that jealousy of the ecclesiastical courts which the common lawyers had long entertained.

Cowell's Interpreter.—An opportunity was soon given to those who disliked the civilians, that is, not only to the common lawyers, but to all the patriots and puritans in England, by an imprudent publication of a Doctor Cowell. This man, in a law dictionary dedicated to Bancroft, had thought fit to insert passages of a tenor conformable to the new creed of the king's absolute or arbitrary power. Under the title King, it is said:—"He is above the law by his absolute power, and though for the better and equal course in making laws he do admit the three estates unto council, yet this in divers learned men's opinion is not of constraint, but of his own benignity, or by reason of the promise made upon oath at the time of his coronation. And though at his coronation he take an oath not to alter the laws of the land, yet this oath notwithstanding, he may alter or suspend any particular law that seemeth hurtful to the public estate. Thus much in short, because I have heard some to be of opinion that the laws are above the king." And in treating of the Parliament, Cowell observes: "Of these two one must be true, either that the king is above the parliament, that is, the positive laws of his kingdom, or else that he is not an absolute king. And therefore though it be a merciful policy and also a politic mercy, not alterable without great peril, to make laws by the consent of the whole realm, because so no part shall have cause to complain of a partiality, yet simply to bind the prince to or by these laws were repugnant to the nature and constitution of an absolute monarchy." It is said again, under the title Prerogative, that "the king, by the custom of this kingdom, maketh no laws without the consent of the three estates, though he may quash any law concluded of by them;" and that he "holds it incontrollable, that the king of England is an absolute king."532

Such monstrous positions from the mouth of a man of learning and conspicuous in his profession, who was surmised to have been instigated as well as patronised by the archbishop, and of whose book the king was reported to have spoken in terms of eulogy, gave very just scandal to the House of Commons. They solicited and obtained a conference with the lords, which the attorney-general, Sir Francis Bacon, managed on the part of the lower house; a remarkable proof of his adroitness and pliancy. James now discovered that it was necessary to sacrifice this too unguarded advocate of prerogative: Cowell's book was suppressed by proclamation, for which the Commons returned thanks, with great joy at their victory.533

It is the evident policy of every administration, in dealing with the House of Commons, to humour them in everything that touches their pride and tenaciousness of privilege, never attempting to protect any one who incurs their displeasure by want of respect. This seems to have been understood by the Earl of Salisbury, the first English minister who, having long sat in the lower house, had become skilful in those arts of management which his successors have always reckoned so essential a part of their mystery. He wanted a considerable sum of money to defray the king's debts, which, on his coming into the office of lord treasurer after Lord Buckhurst's death, he had found to amount to £1,300,000, about one-third of which was still undischarged. The ordinary expense also surpassed the revenue by £81,000. It was impossible that this could continue, without involving the Crown in such embarrassments as would leave it wholly at the mercy of parliament. Cecil therefore devised the scheme of obtaining a perpetual yearly revenue of £200,000, to be granted once for all by parliament; and the better to incline the house to this high and extraordinary demand, he promised in the king's name to give all the redress and satisfaction in his power for any grievances they might bring forward.534

Renewed complaints of the Commons.—This offer on the part of government seemed to make an opening for a prosperous adjustment of the differences which had subsisted ever since the king's accession. The Commons accordingly, postponing the business of a subsidy, to which the courtiers wished to give priority, brought forward a host of their accustomed grievances in ecclesiastical and temporal concerns. The most essential was undoubtedly that of impositions, which they sent up a bill to the Lords, as above mentioned, to take away. They next complained of the ecclesiastical high commission court, which took upon itself to fine and imprison, powers not belonging to their jurisdiction, and passed sentences without appeal, interfering frequently with civil rights, and in all its procedure neglecting the rules and precautions of the common law. They dwelt on the late abuse of proclamations assuming the character of laws. "Amongst many other points of happiness and freedom," it is said, "which your majesty's subjects of this kingdom have enjoyed under your royal progenitors, kings and queens of this realm, there is none which they have accounted more dear and precious than this, to be guided and governed by the certain rule of the law, which giveth both to the head and members that which of right belongeth to them, and not by any uncertain or arbitrary form of government, which, as it hath proceeded from the original good constitution and temperature of this estate, so hath it been the principal means of upholding the same, in such sort as that their kings have been just, beloved, happy, and glorious, and the kingdom itself peaceable, flourishing, and durable so many ages. And the effect, as well of the contentment that the subjects of this kingdom have taken in this form of government, as also of the love, respect, and duty, which they have by reason of the same rendered unto their princes, may appear in this, that they have, as occasion hath required, yielded more extraordinary and voluntary contribution to assist their kings, than the subjects of any other known kingdom whatsoever. Out of this root hath grown the indubitable right of the people of this kingdom, not to be made subject to any punishment that shall extend to their lives, lands, bodies, or goods, other than such as are ordained by the common laws of this land, or the statutes made by their common consent in parliament. Nevertheless, it is apparent, both that proclamations have been of late years much more frequent than heretofore, and that they are extended, not only to the liberty, but also to the goods, inheritances, and livelihood of men; some of them tending to alter some points of the law, and make a new; other some made, shortly after a session of parliament, for matter directly rejected in the same session; other appointing punishments to be inflicted before lawful trial and conviction; some containing penalties in form of penal statutes; some referring the punishment of offenders to courts of arbitrary discretion, which have laid heavy and grievous censures upon the delinquents; some, as the proclamation for starch, accompanied with letters commanding enquiry to be made against the transgressors at the quarter-sessions; and some vouching former proclamations to countenance and warrant the later, as by a catalogue here underwritten more particularly appeareth. By reason whereof there is a general fear conceived and spread amongst your majesty's people, that proclamations will, by degrees, grow up, and increase to the strength and nature of laws; whereby not only that ancient happiness, freedom, will be much blemished (if not quite taken away) which their ancestors have so long enjoyed; but the same may also (in process of time) bring a new form of arbitrary government upon the realm: and this their fear is the more increased by occasion of certain books lately published, which ascribe a greater power to proclamations than heretofore had been conceived to belong unto them; as also of the care taken to reduce all the proclamations made since your majesty's reign into one volume, and to print them in such form as acts of parliament formerly have been, and still are used to be, which seemeth to imply a purpose to give them more reputation and more establishment than heretofore they have had."535

They proceed, after a list of these illegal proclamations, to enumerate other grievances, such as the delay of courts of law in granting writs of prohibition and habeas corpus, the jurisdiction of the council of Wales over the four bordering shires of Gloucester, Worcester, Hereford, and Salop,536 some patents of monopolies, and a tax under the name of a licence recently set upon victuallers. The king answered these remonstrances with civility, making, as usual, no concession with respect to the ecclesiastical commission, and evading some of their other requests; but promising that his proclamations should go no farther than was warranted by law, and that the royal licences to victuallers should be revoked.

Negotiation for giving up the feudal revenue.—It appears that the Commons, deeming these enumerated abuses contrary to law, were unwilling to chaffer with the Crown for the restitution of their actual rights. There were, however, parts of the prerogative which they could not dispute, though galled by the burthen; the incidents of feudal tenure, and purveyance. A negotiation was accordingly commenced and carried on for some time with the court, for abolishing both these, or at least the former. The king, though he refused to part with tenure by knight's service, which he thought connected with the honour of the monarchy, was induced, with some real or pretended reluctance, to give up its lucrative incidents, relief, primer seisin, and wardship, as well as the right of purveyance. But material difficulties recurred in the prosecution of this treaty. Some were apprehensive that the validity of a statute cutting off such ancient branches of prerogative might hereafter be called in question; especially if the root from which they sprung, tenure in capite, should still remain. The king's demands, too, seemed exorbitant. He asked £200,000 as a yearly revenue over and above £100,000, at which his wardships were valued, and which the Commons were content to give. After some days' pause upon this proposition, they represented to the Lords, with whom, through committees of conference, the whole matter had been discussed, that if such a sum were to be levied on those only who had lands subject to wardship, it would be a burthen they could not endure; and that if it were imposed equally on the kingdom, it would cause more offence and commotion in the people than they could risk. After a good deal of haggling, Salisbury delivered the king's final determination to accept of £200,000 per annum, which the Commons voted to grant as a full composition for abolishing the right of wardship, and dissolving the court that managed it, and for taking away all purveyance; with some further concessions, and particularly, that the king's claim to lands should be bound by sixty years' prescription. Two points yet remained, of no small moment; namely, by what assurance they could secure themselves against the king's prerogative, so often held up by court lawyers as something uncontrollable by statute, and by what means so great an imposition should be levied; but the consideration of these was reserved for the ensuing session, which was to take place in October.537 They were prorogued in July till that month, having previously granted a subsidy for the king's immediate exigencies. On their meeting again, the Lords began the business by requesting a conference with the other house about the proposed contract. But it appeared that the Commons had lost their disposition to comply. Time had been given them to calculate the disproportion of the terms, and the perpetual burthen that lands held by knight's service must endure. They had reflected too on the king's prodigal humour, the rapacity of the Scots in his service, and the probability that this additional revenue would be wasted without sustaining the national honour, or preventing future applications for money. They saw that after all the specious promises by which they had been led on, no redress was to be expected as to those grievances they had most at heart; that the ecclesiastical courts would not be suffered to lose a jot of their jurisdiction, that illegal customs were still to be levied at the out-ports, that proclamations were still to be enforced like acts of parliament. Great coldness accordingly was displayed in their proceedings; and in a short time, this distinguished parliament, after sitting nearly seven years, was dissolved by proclamation.538

Dissolution of parliament—Character of James.—It was now perhaps too late for the king, by any reform or concession, to regain that public esteem which he had forfeited. Deceived by an overweening opinion of his own learning, which was not inconsiderable, of his general abilities which were far from contemptible, and of his capacity for government, which was very small, and confirmed in this delusion by the disgraceful flattery of his courtiers and bishops, he had wholly overlooked the real difficulties of his position; as a foreigner, rather distantly connected with the royal stock, and as a native of a hostile and hateful kingdom, come to succeed the most renowned of sovereigns, and to grasp a sceptre which deep policy and long experience had taught her admirably to wield.539 The people were proud of martial glory, he spoke only of the blessing of the peacemakers; they abhorred the court of Spain, he sought its friendship; they asked indulgence for scrupulous consciences, he would bear no deviation from conformity; they writhed under the yoke of the bishops, whose power he thought necessary to his own; they were animated by a persecuting temper towards the catholics, he was averse to extreme rigour; they had been used to the utmost frugality in dispensing the public treasure, he squandered it on unworthy favourites; they had seen at least exterior decency of morals prevail in the queen's court, they now heard only of its dissoluteness and extravagance;540 they had imbibed an exclusive fondness for the common law as the source of their liberties and privileges; his churchmen and courtiers, but none more than himself, talked of absolute power and the imprescriptible rights of monarchy.541

Death of Lord Salisbury.—James lost in 1611 his son Prince Henry, and in 1612 the lord treasurer Salisbury. He showed little regret for the former, whose high spirit and great popularity afforded a mortifying contrast; especially as the young prince had not taken sufficient pains to disguise his contempt for his father.542 Salisbury was a very able man, to whom perhaps his contemporaries did some injustice. The ministers of weak and wilful monarchs are made answerable for the mischiefs they are compelled to suffer, and gain no credit for those which they prevent. Cecil had made personal enemies of those who had loved Essex or admired Raleigh, as well as those who looked invidiously on his elevation. It was believed that the desire shown by the House of Commons to abolish the feudal wardships, proceeded in a great measure from the circumstance that this obnoxious minister was master of the court of wards; an office both lucrative and productive of much influence. But he came into the scheme of abolishing it with a readiness that did him credit. His chief praise, however, was his management of continental relations. The only minister of James's cabinet who had been trained in the councils of Elizabeth, he retained some of her jealousy of Spain, and of her regard for the protestant interests. The court of Madrid, aware both of the king's pusillanimity and of his favourable dispositions, affected a tone in the conferences held in 1604, about a treaty of peace, which Elizabeth would have resented in a very different manner.543 On this occasion, he not only deserted the United Provinces, but gave hopes to Spain that he might, if they persevered in their obstinacy, take part against them. Nor have I any doubt that his blind attachment to that power would have precipitated him into a ruinous connection, if Cecil's wisdom had not influenced his councils. During this minister's life, our foreign politics seem to have been conducted with as much firmness and prudence as his master's temper would allow; the mediation of England was of considerable service in bringing about the great truce of twelve years between Spain and Holland in 1609; and in the dispute which sprang up soon afterwards concerning the succession to the duchies of Cleves and Juliers, a dispute which threatened to mingle in arms the catholic and protestant parties throughout Europe,544 our councils were full of a vigour and promptitude unusual in this reign; nor did anything but the assassination of Henry IV. prevent the appearance of an English army in the Netherlands. It must at least be confessed that the king's affairs, both at home and abroad, were far worse conducted after the death of the Earl of Salisbury than before.545

Lord Coke's alienation from the court.—The administration found an important disadvantage, about this time, in a sort of defection of Sir Edward Coke (more usually called Lord Coke), chief justice of the king's bench, from the side of prerogative. He was a man of strong, though narrow, intellect; confessedly the greatest master of English law that had ever appeared; but proud and overbearing, a flatterer and tool of the court till he had obtained his ends, and odious to the nation for the brutal manner in which, as attorney-general, he had behaved towards Sir Walter Raleigh on his trial. In raising him to the post of chief justice, the council had of course relied on finding his unfathomable stores of precedent subservient to their purposes. But soon after his promotion, Coke, from various causes, began to steer a more independent course. He was little formed to endure a competitor in his own profession, and lived on ill terms both with the lord chancellor Egerton, and with the attorney-general, Sir Francis Bacon. The latter had long been his rival and enemy. Discountenanced by Elizabeth, who, against the importunity of Essex, had raised Coke over his head, that great and aspiring genius was now high in the king's favour. The chief justice affected to look down on one as inferior to him in knowledge of our municipal law, as he was superior in all other learning and in all the philosophy of jurisprudence. And the mutual enmity of these illustrious men never ceased till each in his turn satiated his revenge by the other's fall. Coke was also much offended by the attempts of the bishops to emancipate their ecclesiastical courts from the civil jurisdiction. I have already mentioned the peremptory tone in which he repelled Bancroft's Articuli Cleri. But as the king and some of the council rather favoured these episcopal pretensions, they were troubled by what they deemed his obstinacy, and discovered more and more that they had to deal with a most impracticable spirit.

It would be invidious to exclude from the motives that altered Lord Coke's behaviour in matters of prerogative his real affection for the laws of the land, which novel systems, broached by the churchmen and civilians, threatened to subvert.546 In Bates's case, which seems to have come in some shape extra-judicially before him, he had delivered an opinion in favour of the king's right to impose at the out-ports; but so cautiously guarded, and bottomed on such different grounds from those taken by the barons of the exchequer, that it could not be cited in favour of any fresh encroachments.547 He now performed a great service to his country. The practice of issuing proclamations, by way of temporary regulation indeed, but interfering with the subject's liberty, in cases unprovided for by parliament, had grown still more usual than under Elizabeth. Coke was sent for to attend some of the council, who might perhaps have reason to conjecture his sentiments; and it was demanded whether the king, by his proclamation, might prohibit new buildings about London, and whether he might prohibit the making of starch from wheat. This was during the session of parliament in 1610, and with a view to what answer the king should make to the Commons' remonstrance against these proclamations. Coke replied, that it was a matter of great importance, on which he would confer with his brethren. "The chancellor said, that every precedent had first a commencement, and he would advise the judges to maintain the power and prerogative of the king; and in cases wherein there is no authority and precedent, to leave it to the king to order in it according to his wisdom and for the good of his subjects, or otherwise the king would be no more than the Duke of Venice; and that the king was so much restrained in his prerogative, that it was to be feared the bonds would be broken. And the lord privy-seal (Northampton) said, that the physician was not always bound to a precedent, but to apply his medicine according to the quality of the disease; and all concluded that it should be necessary at that time to confirm the king's prerogative, with our opinions, although that there were not any former precedent or authority in law; for every precedent ought to have a commencement. To which I answered, that true it is that every precedent ought to have a commencement; but when authority and precedent is wanting, there is need of great consideration before that anything of novelty shall be established, and to provide that this be not against the law of the land; for I said that the king cannot change any part of the common law, nor create any offence by his proclamation which was not an offence before, without parliament. But at this time I only desired to have a time of consultation and conference with my brothers." This was agreed to by the council, and three judges, besides Coke, appointed to consider it. They resolved that the king, by his proclamation, cannot create any offence which was not one before; for then he might alter the law of the land in a high point; for if he may create an offence where none is, upon that ensues fine and imprisonment. It was also resolved that the king hath no prerogative but what the law of the land allows him. But the king, for prevention of offences, may by proclamation admonish all his subjects that they keep the laws and do not offend them, upon punishment to be inflicted by the law; and the neglect of such proclamation, Coke says, aggravates the offence. Lastly, they resolved that if an offence be not punishable in the star-chamber, the prohibition of it by proclamation cannot make it so. After this resolution, the report goes on to remark, no proclamation imposing fine and imprisonment was made.548

Means resorted to in order to avoid the meeting of parliament.—By the abrupt dissolution of parliament James was left nearly in the same necessity as before; their subsidy, being by no means sufficient to defray his expenses, far less to discharge his debts. He had frequently betaken himself to the usual resource of applying to private subjects, especially rich merchants, for loans of money. These loans, which bore no interest, and for the repayment of which there was no security, disturbed the prudent citizens; especially as the council used to solicit them with a degree of importunity at least bordering on compulsion. The House of Commons had in the last session requested that no one should be bound to lend money to the king against his will. The king had answered that he allowed not of any precedents from the time of usurping or decaying princes, or people too bold and wanton; that he desired not to govern in that commonwealth where the people be assured of everything and hope for nothing, nor would he leave to posterity such a mark of weakness on his reign; yet, in the matter of loans, he would refuse no reasonable excuse.549 Forced loans or benevolences were directly prohibited by an act of Richard III., whose laws, however the court might sometimes throw a slur upon his usurpation, had always been in the statute-book. After the dissolution of 1610, James attempted as usual to obtain loans; but the merchants, grown bolder with the spirit of the times, refused him the accommodation.550 He had recourse to another method of raising money, unprecedented, I believe, before his reign, though long practised in France, the sale of honours. He sold several peerages for considerable sums, and created a new order of hereditary knights, called baronets, who paid £1,000 each for their patents.551

Such resources, however, being evidently insufficient and temporary, it was almost indispensable to try once more the temper of a parliament. This was strongly urged by Bacon, whose fertility of invention rendered him constitutionally sanguine of success. He submitted to the king that there were expedients for more judiciously managing a House of Commons, than Cecil, upon whom he was too willing to throw blame, had done with the last; that some of those who had been most forward in opposing were now won over; such as Neville, Yelverton, Hyde, Crew, Dudley Digges; that much might be done by forethought towards filling the house with well-affected persons, winning or blinding the lawyers, whom he calls the literæ vocales of the house, and drawing the chief constituent bodies of the assembly, the country gentlemen, the merchants, the courtiers, to act for the king's advantage; that it would be expedient to tender voluntarily certain graces and modifications of the king's prerogative, such as might with smallest injury be conceded, lest they should be first demanded, and in order to save more important points.552 This advice was seconded by Sir Henry Neville, an ambitious man, who had narrowly escaped in the queen's time for having tampered in Essex's conspiracy, and had much promoted the opposition in the late parliament, but was now seeking the post of secretary of state. He advised the king, in a very sensible memorial, to consider what had been demanded and what had been promised in the last session, granting the more reasonable of the Commons' requests, and performing all his own promises; to avoid any speech likely to excite irritation; and to seem confident of the parliament's good affections, not waiting to be pressed for what he meant to do.553 Neville and others, who, like him, professed to understand the temper of the Commons, and to facilitate the king's dealings with them, were called undertakers.554 This circumstance, like several others in the present reign, is curious, as it shows the rise of a systematic parliamentary influence, which was one day to become the mainspring of government.

Neville, however, and his associates had deceived the courtiers with promises they could not realise. It was resolved to announce certain intended graces in the speech from the throne; that is, to declare the king's readiness to pass bills that might remedy some grievances and retrench a part of his prerogative. These proffered amendments of the law, though eleven in number, failed altogether of giving the content that had been fully expected. Except the repeal of a strange act of Henry VIII., allowing the king to make such laws as he should think fit for the principality of Wales without consent of parliament,555 none of them could perhaps be reckoned of any constitutional importance. In all domanial and fiscal causes, and wherever the private interests of the Crown stood in competition with those of a subject, the former enjoyed enormous and superior advantages, whereof what is strictly called its prerogative was principally composed. The terms of prescription that bound other men's right, the rules of pleading and procedure established for the sake of truth and justice, did not, in general, oblige the king. It was not by doing away with a very few of these invidious and oppressive distinctions, that the Crown could be allowed to keep on foot still more momentous abuses.

Parliament of 1614.—The Commons of 1614 accordingly went at once to the characteristic grievance of this reign, the customs at the outports. They had grown so confident in their cause by ransacking ancient records, that an unanimous vote passed against the king's right of imposition; not that there were no courtiers in the house, but the cry was too obstreperous to be withstood.556 They demanded a conference on the subject with the Lords, who preserved a kind of mediating neutrality throughout this reign.557 In the course of their debate, Neyle, Bishop of Lichfield, threw out some aspersion on the Commons. They were immediately in a flame, and demanded reparation. This Neyle was a man of indifferent character, and very unpopular from the share he had taken in the Earl of Essex's divorce, and from his severity towards the puritans; nor did the house fail to comment upon all his faults in their debate. He had, however, the prudence to excuse himself ("with many tears," as the Lords' Journals inform us), denying the most offensive words imputed to him; and the affair went no farther.558 This ill-humour of the Commons disconcerted those who had relied on the undertakers. But as the secret of these men had not been kept, their project considerably aggravated the prevailing discontent.559 The king had positively denied in his first speech that there were any such undertakers; and Bacon, then attorney-general, laughed at the chimerical notion, that private men should undertake for all the Commons of England.560 That some persons however had obtained that name at court, and held out such promises, is at present out of doubt; and indeed the king, forgetful of his former denial, expressly confessed it on opening the session of 1621.

Amidst these heats little progress was made; and no one took up the essential business of supply. The king at length sent a message, requesting that a supply might be granted, with a threat of dissolving parliament unless it were done. But the days of intimidation were gone by. The house voted that they would first proceed with the business of impositions, and postpone supply till their grievances should be redressed.561 Aware of the impossibility of conquering their resolution, the king carried his measure into effect by a dissolution.562 They had sat about two months, and, what is perhaps unprecedented in our history, had not passed a single bill. James followed up this strong step by one still more vigorous. Several members, who had distinguished themselves by warm language against the government, were arrested after the dissolution, and kept for a short time in custody; a manifest violation of that freedom of speech, without which no assembly can be independent, and which is the stipulated privilege of the House of Commons.563

Benevolences.—It was now evident that James could never expect to be on terms of harmony with a parliament, unless by surrendering pretensions, which not only were in his eyes indispensable to the lustre of his monarchy, but from which he derived an income that he had no means of replacing. He went on accordingly for six years, supplying his exigencies by such precarious sources as circumstances might furnish. He restored the towns mortgaged by the Dutch to Elizabeth on payment of 2,700,000 florins, about one-third of the original debt. The enormous fines imposed by the star-chamber, though seldom, I believe, enforced to their utmost extent, must have considerably enriched the exchequer. It is said by Carte that some Dutch merchants paid fines to the amount of £133,000 for exporting gold coin.564 But still greater profit was hoped from the requisition of that more than half involuntary contribution, miscalled a benevolence. It began by a subscription of the nobility and principal persons about the court. Letters were sent written to the sheriffs and magistrates, directing them to call on people of ability. It had always been supposed doubtful whether the statute of Richard III. abrogating "exactions, called benevolences," should extend to voluntary gifts at the solicitation of the Crown. The language used in that act certainly implies that the pretended benevolences of Edward's reign had been extorted against the subjects' will; yet if positive violence were not employed, it seems difficult to find a legal criterion by which to distinguish the effects of willing loyalty from those of fear or shame. Lord Coke is said to have at first declared that the king could not solicit a benevolence from his subjects, but to have afterwards retracted his opinion and pronounced in favour of its legality. To this second opinion he adheres in his Reports.565 While this business was pending, Mr. Oliver St. John wrote a letter to the mayor of Marlborough, explaining his reasons for declining to contribute, founded on the several statutes which he deemed applicable, and on the impropriety of particular men opposing their judgment, to the Commons in parliament, who had refused to grant any subsidy. This argument, in itself exasperating, he followed up by somewhat blunt observations on the king. His letter came under the consideration of the star-chamber, where the offence having been severely descanted upon by the attorney-general, Mr. St. John was sentenced to a fine of £5000, and to imprisonment during pleasure.566

Prosecution of Peacham.—Coke, though still much at the council-board, was regarded with increasing dislike on account of his uncompromising humour. This he had occasion to display in perhaps the worst and most tyrannical act of King James's reign, the prosecution of one Peacham, a minister in Somersetshire, for high treason. A sermon had been found in this man's study (it does not appear what led to the search), never preached, nor, if Judge Croke is right, intended to be preached, containing such sharp censures upon the king, and invectives against the government, as, had they been published, would have amounted to a seditious libel. But common sense revolted at construing it into treason, under the statute of Edward III., as a compassing of the king's death. James, however, took it up with indecent eagerness. Peacham was put to the rack, and examined upon various interrogatories, as it is expressed by secretary Winwood, "before torture, in torture, between torture, and after torture." Nothing could be drawn from him as to any accomplices, nor any explanation of his design in writing the sermon; which was probably but an intemperate effusion, so common among the puritan clergy. It was necessary therefore to rely on this, as the overt act of treason. Aware of the difficulties that attended this course, the king directed Bacon previously to confer with the judges of the king's bench, one by one, in order to secure their determination for the Crown. Coke objected that "such particular, and as he called it, auricular taking of opinions was not according to the custom of this realm."567 The other three judges having been tampered with, agreed to answer such questions concerning the case as the king might direct to be put to them; yielding to the sophism that every judge was bound by his oath to give counsel to his majesty. The chief justice continued to maintain his objection to this separate closeting of judges; yet, finding himself abandoned by his colleagues, consented to give answers in writing, which seem to have been merely evasive. Peacham was brought to trial, and found guilty, but not executed, dying in prison a few months after.568

Dispute about the jurisdiction of the court of chancery.—It was not long before the intrepid chief justice incurred again the council's displeasure. This will require, for the sake of part of my readers, some little previous explanation. The equitable jurisdiction, as it is called, of the court of chancery appears to have been derived from that extensive judicial power which, in early times, the king's ordinary council had exercised. The chancellor, as one of the highest officers of state, took a great share in the council's business; and when it was not sitting, he had a court of his own, with jurisdiction in many important matters, out of which process to compel appearance of parties might at any time emanate. It is not unlikely therefore that redress, in matters beyond the legal province of the chancellor, was occasionally given through the paramount authority of this court. We find the council and the chancery named together in many remonstrances of the Commons against this interference with private rights, from the time of Richard II. to that of Henry VI. It was probably in the former reign that the chancellor began to establish systematically his peculiar restraining jurisdiction. This originated in the practice of feoffments to uses, by which the feoffee, who had legal seisin of the land, stood bound by private engagement to suffer another, called the cestui que use, to enjoy its use and possession. Such fiduciary estates were well known to the Roman jurists, but inconsistent with the feudal genius of our law. The courts of justice gave no redress, if the feoffee to uses violated his trust by detaining the land. To remedy this, an ecclesiastical chancellor devised the writ of subpœna, 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 subpœna was made applicable. This extension of a novel jurisdiction was partly owing to a fundamental principle of our common law, that a defendant cannot be examined, so that, if no witness or written instrument could be produced to prove a demand, the plaintiff was wholly debarred of justice; but in a still greater degree, to a strange narrowness and scrupulosity of the judges, who, fearful of quitting the letter of their precedents, even with the clearest analogies to guide them, repelled so many just suits, and set up rules of so much hardship, that men were thankful to embrace the relief held out by a tribunal acting in a more rational spirit. This error the common lawyers began to discover, in time to resume a great part of their jurisdiction in matters of contract, which would otherwise have escaped from them. They made too an apparently successful effort to recover their exclusive authority over real property, by obtaining a statute for turning uses into possession; that is, for annihilating the fictitious estate of the feoffee to uses, and vesting the legal as well as equitable possession in the cestui que use. But this victory, if I may use such an expression (since it would have freed them, in a most important point, from the chancellor's control), they threw away by one of those timid and narrow constructions which had already turned so much to their prejudice; and they permitted trust-estates, by the introduction of a few more words into a conveyance, to maintain their ground, contra-distinguished from the legal seisin, under the protection and guarantee, as before, of the courts of equity.

The particular limits of this equitable jurisdiction were as yet exceedingly indefinite. The chancellors were generally prone to extend them; and being at the same time ministers of state in a government of very arbitrary temper, regarded too little that course of precedent by which the other judges held themselves too strictly bound. The cases reckoned cognisable in chancery grew silently more and more numerous; but with little overt opposition from the courts of law till the time of Sir Edward Coke. That great master of the common law was inspired not only with the jealousy of this irregular and encroaching jurisdiction which all lawyers seem to have felt, but with a tenaciousness of his own dignity, and a personal enmity towards Egerton who held the great seal. It happened that an action was tried before him, the precise circumstances of which do not appear, wherein the plaintiff lost the verdict, in consequence of one of his witnesses being artfully kept away. He had recourse to the court of chancery, filing a bill against the defendant to make him answer upon oath, which he refused to do, and was committed for contempt. Indictments were upon this preferred, at Coke's instigation, against the parties who had filed the bill in chancery, their counsel and solicitors, for suing in another court after judgment obtained at law; which was alleged to be contrary to the statute of præmunire. But the grand jury, though pressed, as is said, by one of the judges, threw out these indictments. The king, already incensed with Coke, and stimulated by Bacon, thought this too great an insult upon his chancellor to be passed over. He first directed Bacon and others to search for precedents of cases where relief had been given in chancery after judgment at law. They reported that there was a series of such precedents from the time of Henry VIII.; and some where the chancellor had entertained suits even after execution. The attorney-general was directed to prosecute in the star-chamber those who had preferred the indictments; and as Coke had not been ostensibly implicated in the business, the king contented himself with making an order in the council-book, declaring the chancellor not to have exceeded his jurisdiction.569

Case of commendams.—The chief justice almost at the same time gave another provocation, which exposed him more directly to the court's resentment. A cause happened to be argued in the court of the king's bench, wherein the validity of a particular grant of a benefice to a bishop to be held in commendam, that is, along with his bishopric, came into question; and the counsel at the bar, besides the special points of the case, had disputed the king's general prerogative of making such a grant. The king, on receiving information of this, signified to the chief justice through the attorney-general, that he would not have the court proceed to judgment till he had spoken with them. Coke requested that similar letters might be written to the judges of all the courts. This having been done, they assembled, and by a letter subscribed with all their hands, certified his majesty, that they were bound by their oaths not to regard any letters that might come to them contrary to law, but to do the law notwithstanding; that they held with one consent the attorney-general's letter to be contrary to law, and such as they could not yield to, and that they had proceeded according to their oath to argue the cause.

The king, who was then at Newmarket, returned answer that he would not suffer his prerogative to be wounded, under pretext of the interest of private persons; that it had already been more boldly dealt with in Westminster Hall than in the reigns of preceding princes, which popular and unlawful liberty he would no longer endure; that their oath not to delay justice was not meant to prejudice the king's prerogative; concluding that out of his absolute power and authority royal he commanded them to forbear meddling any further in the cause till they should hear his pleasure from his own mouth. Upon his return to London, the twelve judges appeared as culprits in the council-chamber. The king set forth their misdemeanours, both in substance and in the tone of their letter. He observed that the judges ought to check those advocates who presume to argue against his prerogative; that the popular lawyers had been the men, ever since his accession, who had trodden in all parliaments upon it, though the law could never be respected if the king were not reverenced; that he had a double prerogative—whereof the one was ordinary, and had relation to his private interest, which might be and was every day disputed in Westminster Hall; the other was of a higher nature, referring to his supreme and imperial power and sovereignty, which ought not to be disputed or handled in vulgar argument; but that of late the courts of common law are grown so vast and transcendant, as they did both meddle with the king's prerogative, and had encroached upon all other courts of justice. He commented on the form of the letter, as highly indecent; certifying him merely what they had done, instead of submitting to his princely judgment what they should do.

After this harangue the judges fell upon their knees, and acknowledged their error as to the form of the letter. But Coke entered on a defence of the substance, maintaining the delay required to be against the law and their oaths. The king required the chancellor and attorney-general to deliver their opinions; which, as may be supposed, were diametrically opposite to those of the chief justice. These being heard, the following question was put to the judges: Whether, if at any time, in a case depending before the judges, his majesty conceived it to concern him either in power or profit, and thereupon required to consult with them, and that they should stay proceedings in the meantime, they ought not to stay accordingly? They all, except the chief justice, declared that they would do so, and acknowledged it to be their duty; Hobart, chief justice of the common pleas, adding that he would ever trust the justice of his majesty's commandment. But Coke only answered, that when the case should arise, he would do what should be fit for a judge to do. The king dismissed them all with a command to keep the limits of their several courts, and not to suffer his prerogative to be wounded; for he well knew the true and ancient common law to be the most favourable to kings of any law in the world, to which law he advised them to apply their studies.570

The behaviour of the judges in this inglorious contention was such as to deprive them of every shadow of that confidence which ought to be reposed in their integrity. Hobart, Doddridge, and several more, were men of much consideration for learning; and their authority in ordinary matters of law is still held high. But, having been induced by a sense of duty, or through the ascendancy that Coke had acquired over them, to make a show of withstanding the court, they behaved like cowardly rebels who surrender at the first discharge of cannon; and prostituted their integrity and their fame, through dread of losing their offices, or rather perhaps of incurring the unmerciful and ruinous penalties of the star-chamber.

The government had nothing to fear from such recreants; but Coke was suspended from his office, and not long afterwards dismissed.571 Having however, fortunately in this respect, married his daughter to a brother of the Duke of Buckingham, he was restored in about three years to the privy council, where his great experience in business rendered him useful; and had the satisfaction of voting for an enormous fine on his enemy the Earl of Suffolk, late high-treasurer, convicted in the star-chamber of embezzlement.572 In the parliament of 1621, and still more conspicuously in that of 1628, he became, not without some honourable inconsistency of doctrine as well as practice, the strenuous asserter of liberty on the principles of those ancient laws which no one was admitted to know so well as himself; redeeming, in an intrepid and patriotic old age, the faults which we cannot avoid perceiving in his earlier life.

Arbitrary proceedings of the star-chamber.—The unconstitutional and usurped authority of the star-chamber over-rode every personal right, though an assembled parliament might assert its general privileges. Several remarkable instances in history illustrate its tyranny and contempt of all known laws and liberties. Two puritans having been committed by the high-commission court, for refusing the oath ex officio, employed Mr. Fuller, a bencher of Gray's Inn, to move for their habeas corpus; which he did on the ground that the high commissioners were not empowered to commit any of his majesty's subjects to prison. This being reckoned a heinous offence, he was himself committed, at Bancroft's instigation (whether by the king's personal warrant, or that of the council-board, does not appear), and lay in gaol to the day of his death; the archbishop constantly opposing his discharge for which he petitioned.573 Whitelock, a barrister and afterwards a judge, was brought before the star-chamber on the charge of having given a private opinion to his client, that a certain commission issued by the Crown was illegal. This was said to be a high contempt and slander of the king's prerogative. But, after a speech from Bacon in aggravation of this offence, the delinquent was discharged on a humble submission.574 Such too was the fate of a more distinguished person on a still more preposterous accusation. Selden, in his History of Tithes, had indirectly weakened the claim of divine right, which the high church faction pretended, and had attacked the argument from prescription, deriving their legal institution from the age of Charlemagne, or even a later æra. Not content with letting loose on him some stanch polemical writers, the bishops prevailed on James to summon the author before the council. This proceeding is as much the disgrace of England, as that against Galileo nearly at the same time is of Italy. Selden, like the great Florentine astronomer, bent to the rod of power, and made rather too submissive an apology for entering on this purely historical discussion.575

Arabella Stuart.—Every generous mind must reckon the treatment of Arabella Stuart among the hard measures of despotism, even if it were not also grossly in violation of English law. Exposed by her high descent and ambiguous pretensions to become the victim of ambitious designs wherein she did not participate, that lady may be added to the sad list of royal sufferers who have envied the lot of humble birth. There is not, as I believe, the least particle of evidence that she was engaged in the intrigues of the catholic party to place her on the throne. It was, however, thought a necessary precaution to put her in confinement a short time before the queen's death.576 At the trial of Raleigh she was present; and Cecil openly acquitted her of any share in the conspiracy.577 She enjoyed afterwards a pension from the king, and might have died in peace and obscurity, had she not conceived an unhappy attachment for Mr. Seymour, grandson of that Earl of Hertford, himself so memorable an example of the perils of ambitious love. They were privately married; but on the fact transpiring, the council, who saw with jealous eyes the possible union of two dormant pretensions to the Crown, committed them to the Tower.578 They both made their escape; but Arabella was arrested and brought back. Long and hopeless calamity broke down her mind; imploring in vain the just privileges of an Englishwoman, and nearly in want of necessaries, she died in prison, and in a state of lunacy, some years afterwards.579 And this through the oppression of a kinsman, whose advocates are always vaunting his good nature! Her husband became the famous Marquis of Hertford, the faithful counsellor of Charles the First and partaker of his adversity. Lady Shrewsbury, aunt to Arabella, was examined on suspicion of being privy to her escape; and for refusing to answer the questions put to her, or, in other words, to accuse herself, was sentenced to a fine of £20,000, and discretionary imprisonment.580

Somerset and Overbury.—Several events, so well known that it is hardly necessary to dwell on them, aggravated the king's unpopularity during this parliamentary interval. The murder of Overbury burst into light, and revealed to an indignant nation the king's unworthy favourite, the Earl of Somerset, and the hoary pander of that favourite's vices, the Earl of Northampton, accomplices in that deep-laid and deliberate atrocity. Nor was it only that men so flagitious should have swayed the councils of this country, and rioted in the king's favour. Strange things were whispered, as if the death of Overbury was connected with something that did not yet transpire, and which every effort was employed to conceal. The people, who had already attributed Prince Henry's death to poison, now laid it at the door of Somerset; but for that conjecture, however highly countenanced at the time, there could be no foundation. The symptoms of the prince's illness, and the appearances on dissection, are not such as could result from any poison, and manifestly indicate a malignant fever, aggravated perhaps by injudicious treatment.581 Yet it is certain that a mystery hangs over this scandalous tale of Overbury's murder. The insolence and menaces of Somerset in the Tower, the shrinking apprehensions of him which the king could not conceal, the pains taken by Bacon to prevent his becoming desperate, and, as I suspect, to mislead the hearers by throwing them on a wrong scent, are very remarkable circumstances to which, after a good deal of attention, I can discover no probable clue. But it is evident that he was master of some secret, which it would have highly prejudiced the king's honour to divulge.582

Sir Walter Raleigh.—Sir Walter Raleigh's execution was another stain upon the reputation of James I. It is needless to mention that he fell under a sentence passed fifteen years before, on a charge of high treason, in plotting to raise Arabella Stuart to the throne. It is very probable that this charge was, partly at least, founded in truth;583 but his conviction was obtained on the single deposition of Lord Cobham, an accomplice, a prisoner, not examined in court, and known to have already retracted his accusation. Such a verdict was thought contrary to law, even in that age of ready convictions. It was a severe measure to detain for twelve years in prison so splendid an ornament of his country, and to confiscate his whole estate.584 For Raleigh's conduct in the expedition to Guiana, there is not much excuse to make. Rashness and want of foresight were always among his failings; else he would not have undertaken a service of so much hazard without obtaining a regular pardon for his former offence. But it might surely be urged that either his commission was absolutely null, or that it operated as a pardon; since a man attainted of treason is incapable of exercising that authority which it conferred upon him.585 Be this as it may, no technical reasoning could overcome the moral sense that revolted at carrying the original sentence into execution. Raleigh might be amenable to punishment for the deception, by which he had obtained a commission that ought never to have issued; but the nation could not help seeing in his death the sacrifice of the bravest and most renowned of Englishmen to the vengeance of Spain.586

This unfortunate predilection for the court of Madrid had always exposed James to his subjects' jealousy. They connected it with an inclination at least to tolerate popery, and with a dereliction of their commercial interests. But from the time that he fixed his hopes on the union of his son with the infanta,587 the popular dislike to Spain increased in proportion to his blind preference. If the king had not systematically disregarded the public wishes, he could never have set his heart on this impolitic match; contrary to the wiser maxim he had laid down in his own Basilicon Doron, never to seek a wife for his son except in a protestant family. But his absurd pride made him despise the uncrowned princes of Germany. This Spanish policy grew much more odious after the memorable events of 1619, the election of the king's son-in-law to the throne of Bohemia, his rapid downfall, and the conquest of the Upper Palatinate by Austria. If James had listened to some sanguine advisers, he would in the first instance have supported the pretensions of Frederic. But neither his own views of public law nor true policy dictated such an interference. The case was changed after the loss of his hereditary dominions, and the king was sincerely desirous to restore him to the Palatinate; but he unreasonably expected that he could effect this through the friendly mediation of Spain, while the nation, not perhaps less unreasonably, were clamorous for his attempting it by force of arms. In this agitation of the public mind, he summoned the parliament that met in February 1621.588

Parliament of 1621.—The king's speech on opening the session was, like all he had made on former occasions, full of hopes and promises, taking cheerfully his share of the blame as to past disagreements, and treating them as little likely to recur, though all their causes were still in operation.589 He displayed, however, more judgment than usual in the commencement of this parliament. Among the methods devised to compensate the want of subsidies, none had been more injurious to the subject than patents of monopoly, including licences for exclusively carrying on certain trades. Though the government was principally responsible for the exactions they connived at, and from which they reaped a large benefit, the popular odium fell of course on the monopolists. Of these the most obnoxious was Sir Giles Mompesson, who, having obtained a patent for gold and silver thread, sold it of baser metal. This fraud seems neither very extraordinary nor very important; but he had another patent for licensing inns and alehouses, wherein he is said to have used extreme violence and oppression. The House of Commons proceeded to investigate Mompesson's delinquency. Conscious that the Crown had withdrawn its protection, he fled beyond sea. One Michell, a justice of peace, who had been the instrument of his tyranny, fell into the hands of the Commons, who voted him incapable of being in the commission of the peace, and sent him to the Tower.590 Entertaining, however, upon second thoughts, as we must presume, some doubts about their competence to inflict this punishment, especially the former part of it, they took the more prudent course with respect to Mompesson, of appointing Noy and Hakewill to search for precedents in order to show how far and for what offences their power extended to punish delinquents against the state as well as those who offended against that house. The result appears some days after, in a vote that "they must join with the Lords for punishing Sir Giles Mompesson; it being no offence against our particular house, nor any member of it, but a general grievance."591

The earliest instance of parliamentary impeachment, or of a solemn accusation of any individual by the Commons at the bar of the Lords, was that of Lord Latimer in the year 1376. The latest hitherto was that of the Duke of Suffolk in 1449; for a proceeding against the Bishop of London in 1534, which has sometimes been reckoned an instance of parliamentary impeachment, does not by any means support that privilege of the Commons.592 It had fallen into disuse, partly from the loss of that control which the Commons had obtained under Richard II. and the Lancastrian kings; and partly from the preference the Tudor princes had given to bills of attainder or of pains and penalties, when they wished to turn the arm of parliament against an obnoxious subject. The revival of this ancient mode of proceeding in the case of Mompesson, though a remarkable event in our constitutional annals, does not appear to have been noticed as an anomaly. It was not indeed conducted according to all the forms of an impeachment. The Commons, requesting a conference with the other house, informed them generally of that person's offence, but did not exhibit any distinct articles at their bar. The Lords took up themselves the inquiry; and having become satisfied of his guilt, sent a message to the Commons, that they were ready to pronounce sentence. The speaker accordingly, attended by all the house, demanded judgment at the bar: when the Lords passed as heavy a sentence as could be awarded for any misdemeanour; to which the king, by a stretch of prerogative, which no one was then inclined to call in question, was pleased to add perpetual banishment.593

The impeachment of Mompesson was followed up by others against Michell, the associate in his iniquities; against Sir John Bennet, judge of the prerogative court, for corruption in his office; and against Field, Bishop of Landaff, for being concerned in a matter of bribery.594 The first of these was punished; but the prosecution of Bennet seems to have dropped in consequence of the adjournment, and that of the bishop ended in a slight censure. But the wrath of the Commons was justly roused against that shameless corruption, which characterises the reign of James beyond every other in our history.

Proceedings against Lord Bacon.—It is too well known, how deeply the greatest man of that age was tarnished by the prevailing iniquity. Complaints poured in against the chancellor Bacon for receiving bribes from suitors in his court. Some have vainly endeavoured to discover an excuse which he did not pretend to set up, and even ascribed the prosecution to the malevolence of Sir Edward Coke.595 But Coke took no prominent share in this business; and though some of the charges against Bacon may not appear very heinous, especially for those times, I know not whether the unanimous conviction of such a man, and the conscious pusillanimity of his defence do not afford a more irresistible presumption of his misconduct than anything specially alleged. He was abandoned by the court, and had previously lost, as I rather suspect, Buckingham's favour; but the king, who had a sense of his transcendent genius, remitted the fine of £40,000 imposed by the Lords, which he was wholly unable to pay.596

There was much to commend in the severity practised by the house towards public delinquents; such examples being far more likely to prevent the malversation of men in power than any law they could enact. But in the midst of these laudable proceedings, they were hurried by the passions of the moment into an act of most unwarrantable violence. It came to the knowledge of the house that one Floyd, a gentleman confined in the Fleet prison, had used some slighting words about the elector palatine and his wife. It appeared in aggravation, that he was a Roman catholic. Nothing could exceed the fury into which the Commons were thrown by this very insignificant story. A flippant expression, below the cognisance of an ordinary court, grew at once into a portentous offence, which they ransacked their invention to chastise. After sundry novel and monstrous propositions, they fixed upon the most degrading punishment they could devise. Next day, however, the chancellor of the exchequer delivered a message, that the king, thanking them for their zeal, but desiring that it should not transport them to inconveniences, would have them consider whether they could sentence one who did not belong to them, nor had offended against the house or any member of it; and whether they could sentence a denying party, without the oath of witnesses; referring them to an entry on the rolls of parliament in the first year of Henry IV., that the judicial power of parliament does not belong to the Commons. He would have them consider whether it would not be better to leave Floyd to him, who would punish him according to his fault.

This message put them into some embarrassment. They had come to a vote in Mompesson's case, in the very words employed in the king's message, confessing themselves to have no jurisdiction, except over offences against themselves. The warm speakers now controverted this proposition with such arguments as they could muster; Coke, though from the reported debates he seems not to have gone the whole length, contending that the house was a court of record, and that it consequently had power to administer an oath.597 They returned a message by the speaker, excepting to the record in 1 H. 4, because it was not an act of parliament to bind them, and persisting, though with humility, in their first votes.598 The king replied mildly; urging them to show precedents, which they were manifestly incapable of doing. The Lords requested a conference, which they managed with more temper, and notwithstanding the solicitude displayed by the Commons to maintain their pretended right, succeeded in withdrawing the matter to their own jurisdiction.599 This conflict of privileges was by no means of service to the unfortunate culprit; the Lords perceived that they could not mitigate the sentence of the lower house without reviving their dispute, and vindicated themselves from all suspicion of indifference towards the cause of the Palatinate by augmenting its severity. Floyd was adjudged to be degraded from his gentility, and to be held an infamous person; his testimony not to be received; to ride from the Fleet to Cheapside on horseback without a saddle, with his face to the horse's tail, and the tail in his hand, and there to stand two hours in the pillory, and to be branded in the forehead with the letter K; to ride four days afterwards in the same manner to Westminster, and there to stand two hours more in the pillory, with words in a paper in his hat showing his offence; to be whipped at the cart's tail from the Fleet to Westminster Hall; to pay a fine of £5000, and to be a prisoner in Newgate during his life. The whipping was a few days after remitted on Prince Charles's motion; but he seems to have undergone the rest of the sentence. There is surely no instance in the annals of our own, and hardly of any civilised country, where a trifling offence, if it were one, has been visited with such outrageous cruelty. The cold-blooded deliberate policy of the Lords is still more disgusting than the wild fury of the lower house.600

This case of Floyd is an unhappy proof of the disregard that popular assemblies, when inflamed by passion, are ever apt to show for those principles of equity and moderation, by which, however the sophistry of contemporary factions may set them aside, a calm judging posterity will never fail to measure their proceedings. It has contributed at least, along with several others of the same kind, to inspire me with a jealous distrust of that indefinable, uncontrollable privilege of parliament, which has sometimes been asserted, and perhaps with rather too much encouragement from those whose function it is to restrain all exorbitant power. I speak only of the extent to which theoretical principles have been carried, without insinuating that the privileges of the House of Commons have been practically stretched in late times beyond their constitutional bounds. Time and the course of opinion have softened down those high pretensions, which the dangers of liberty under James the First, as well as the natural character of a popular assembly, then taught the Commons to assume; and the greater humanity of modern ages has made us revolt from such disproportionate punishments as were inflicted on Floyd.601

Everything had hitherto proceeded with harmony between the king and parliament. His ready concurrence in their animadversion on Mompesson and Michell, delinquents who had acted at least with the connivance of government, and in the abolition of monopolies, seemed to remove all discontent. The Commons granted two subsidies early in the session without alloying their bounty with a single complaint of grievances. One might suppose that the subject of impositions had been entirely forgotten, not an allusion to them occurring in any debate.602 It was voted indeed, in the first days of the session, to petition the king about the breach of their privilege of free speech, by the imprisonment of Sir Edwin Sandys, in 1614, for words spoken in the last parliament; but the house did not prosecute this matter, contenting itself with some explanation by the secretary of state.603 They were going on with some bills for reformation of abuses, to which the king was willing to accede, when they received an intimation that he expected them to adjourn over the summer. It produced a good deal of dissatisfaction to see their labour so hastily interrupted; especially as they ascribed it to a want of sufficient sympathy on the court's part with their enthusiastic zeal for the elector palatine.604 They were adjourned by the king's commission, after an unanimous declaration ("sounded forth," says one present, "with the voices of them all, withal lifting up their hats in their hands so high as they could hold them, as a visible testimony of their unanimous consent, in such sort, that the like had scarce ever been seen in parliament") of their resolution to spend their lives and fortunes for the defence of their own religion and of the Palatinate. This solemn protestation and pledge was entered on record in the journals.605

They met again after five months, without any change in their views of policy. At a conference of the two houses, Lord Digby, by the king's command, explained all that had occurred in his embassy to Germany for the restitution of the Palatinate; which, though absolutely ineffective, was as much as James could reasonably expect without a war.606 He had in fact, though, according to the laxity of those times, without declaring war on any one, sent a body of troops under Sir Horace Vere, who still defended the Lower Palatinate. It was necessary to vote more money, lest these should mutiny for want of pay. And it was stated to the Commons in this conference, that to maintain a sufficient army in that country for one year would require £900,000; which was left to their consideration.607 But now it was seen that men's promises to spend their fortunes in a cause not essentially their own are written in the sand. The Commons had no reason perhaps to suspect that the charge of keeping 30,000 men in the heart of Germany would fall much short of the estimate. Yet after long haggling they voted only one subsidy, amounting to £70,000; a sum manifestly insufficient for the first equipment of such a force.608 This parsimony could hardly be excused by their suspicion of the king's unwillingness to undertake the war, for which it afforded the best justification.

Disagreement between the king and Commons.—James was probably not much displeased at finding so good a pretext for evading a compliance with their martial humour; nor had there been much appearance of dissatisfaction on either side (if we except some murmurs at the commitment of one of their most active members, Sir Edwin Sandys, to the Tower, which were tolerably appeased by the secretary Calvert's declaration that he had not been committed for any parliamentary matter),609 till the Commons drew up a petition and remonstrance against the growth of popery; suggesting, among other remedies for this grievance, that the prince should marry one of our own religion, and that the king would direct his efforts against the power (meaning Spain) which first maintained the war in the Palatinate. This petition was proposed by Sir Edward Coke. The courtiers opposed it as without precedent; the chancellor of the duchy observing that it was of so high and transcendent a nature, he had never known the like within those walls. Even the mover defended it rather weakly, according to our notions, as intended only to remind the king, but requiring no answer. The scruples affected by the courtiers, and the real novelty of the proposition, had so great an effect, that some words were inserted, declaring that the house "did not mean to press on the king's most undoubted and royal prerogative."610 The petition, however, had not been presented, when the king, having obtained a copy of it, sent a peremptory letter to the speaker, that he had heard how some fiery and popular spirits had been imboldened to debate and argue on matters far beyond their reach or capacity, and directing him to acquaint the house with his pleasure that none therein should presume to meddle with anything concerning his government or mysteries of state; namely, not to speak of his son's match with the princess of Spain, nor to touch the honour of that king, or any other of his friends and confederates. Sandys's commitment, he bade them be informed, was not for any misdemeanour in parliament. But to put them out of doubt of any question of that nature that may arise among them hereafter, he let them know that he thought himself very free and able to punish any man's misdemeanours in parliament, as well during their sitting as after, which he meant not to spare upon occasion of any man's insolent behaviour in that place. He assured them that he would not deign to hear their petition, if it touched on any of those points which he had forbidden.611

The house received this message with unanimous firmness, but without any undue warmth. A committee was appointed to draw up a petition, which, in the most decorous language, and with strong professions of regret at his majesty's displeasure, contained a defence of their former proceedings, and hinted very gently, that they could not conceive his honour and safety, or the state of the kingdom, to be matters at any time unfit for their deepest consideration in time of parliament. They adverted more pointedly to that part of the king's message which threatened them for liberty of speech, calling it their ancient and undoubted right, and an inheritance received from their ancestors, which they again prayed him to confirm.612 His answer, though considerably milder than what he had designed, gave indications of a resentment not yet subdued. He dwelt at length on their unfitness for entering on matters of government, and commented with some asperity even on their present apologetical petition. In the conclusion he observed that "although he could not allow of the style, calling their privileges an undoubted right and inheritance, but could rather have wished that they had said that their privileges were derived from the grace and permission of his ancestors and himself (for most of them had grown from precedent which rather shows a toleration than inheritance); yet he gave them his royal assurance, that as long as they contained themselves within the limits of their duty, he would be as careful to maintain their lawful liberties and privileges as he would his own prerogative; so that their house did not touch on that prerogative which would enforce him or any just king to retrench their privileges."613

This explicit assertion that the privileges of the Commons existed only by sufferance, and conditionally upon good behaviour, exasperated the house far more than the denial of their right to enter on matters of state. In the one, they were conscious of having somewhat transgressed the boundaries of ordinary precedents; in the other, their individual security, and their very existence as a deliberative assembly, were at stake. Calvert, the secretary, and the other ministers, admitted the king's expressions to be incapable of defence, and called them a slip of the pen at the close of a long answer.614 The Commons were not to be diverted by any such excuses from their necessary duty of placing on record a solemn claim of right. Nor had a letter from the king, addressed to Calvert, much influence; wherein, while he reiterated his assurances of respecting their privileges, and tacitly withdrew the menace that rendered them precarious, he said that he could not with patience endure his subjects to use such anti-monarchical words to him concerning their liberties, as "ancient and undoubted right and inheritance," without subjoining that they were granted by the grace and favour of his predecessors.615 After a long and warm debate, they entered on record in the Journals their famous protestation of December 18th, 1621, in the following words:—

"The Commons now assembled in parliament, being justly occasioned thereunto, concerning sundry liberties, franchises, privileges, and jurisdictions of parliament, amongst others not herein mentioned, do make this protestation following:—That the liberties, franchises, privileges, and jurisdictions of parliament are the ancient and undoubted birthright and inheritance of the subjects of England; and that the arduous and urgent affairs concerning the king, state, and the defence of the realm, and of the church of England, and the making and maintenance of laws, and redress of mischiefs and grievances which daily happen within this realm, are proper subjects and matter of counsel and debate in parliament; and that in the handling and proceeding of those businesses, every member of the house hath, and of right ought to have, freedom of speech to propound, treat, reason, and bring to conclusion, the same: that the Commons in parliament have like liberty and freedom to treat of those matters in such order as in their judgments shall seem fittest: and that every such member of the said house hath like freedom from all impeachment, imprisonment, and molestation (other than by the censure of the house itself) for or concerning any bill, speaking, reasoning, or declaring of any matter or matters touching the parliament or parliament business; and that, if any of the said members be complained of, and questioned for anything said or done in parliament, the same is to be showed to the king by the advice and assent of all the Commons assembled in parliament, before the king give credence to any private information."616

Dissolution of the Commons, after a strong remonstrance.—This protestation was not likely to pacify the king's anger. He had already pressed the Commons to make an end of the business before them, under pretence of wishing to adjourn them before Christmas, but probably looking to a dissolution. They were not in a temper to regard any business, least of all to grant a subsidy, till this attack on their privileges should be fully retracted. The king therefore adjourned, and in about a fortnight after dissolved them. But in the interval, having sent for the journal book, he erased their last protestation with his own hand; and published a declaration of the causes which had provoked him to this unusual measure, alleging the unfitness of such a protest, after his ample assurance of maintaining their privileges, the irregular manner in which, according to him, it was voted, and its ambiguous and general wording, which might serve in future times to invade most of the prerogatives annexed to the imperial Crown. In his proclamation for dissolving the parliament, James recapitulated all his grounds of offences; but finally required his subjects to take notice that it was his intention to govern them as his progenitors and predecessors had done, and to call a parliament again on the first convenient occasion.617 He immediately followed up this dissolution of parliament by dealing his vengeance on its most conspicuous leaders: Sir Edward Coke and Sir Robert Philips were committed to the Tower; Mr. Pym, and one or two more, to other prisons; Sir Dudley Digges, and several who were somewhat less obnoxious than the former, were sent on a commission to Ireland, as a sort of honourable banishment.618 The Earls of Oxford and Southampton underwent an examination before the council; and the former was committed to the Tower on pretence of having spoken words against the king. It is worthy of observation that, in this session, a portion of the upper house had united in opposing the court. Nothing of this kind is noticed in former parliaments, except perhaps a little on the establishment of the reformation. In this minority were considerable names; Essex, Southampton, Warwick, Oxford, Say, Spencer. Whether a sense of public wrongs, or their particular resentments, influenced these noblemen, their opposition must be reckoned an evident sign of the change that was at work in the spirit of the nation, and by which no rank could be wholly unaffected.619

Marriage treaty with Spain.—James, with all his reputed pusillanimity, never showed any signs of fearing popular opinion. His obstinate adherence to the marriage treaty with Spain was the height of political rashness in so critical a state of the public mind. But what with elevated notions of his prerogative and of his skill in government on the one hand, what with a confidence in the submissive loyalty of the English on the other, he seems constantly to have fancied that all opposition proceeded from a small troublesome faction, whom if he could any way silence, the rest of his people would at once repose in a dutiful reliance on his wisdom. Hence he met every succeeding parliament with as sanguine hopes as if he had suffered no disappointment in the last. The nation was however wrought up at this time to an alarming pitch of discontent. Libels were in circulation about 1621, so bitterly malignant in their censures of his person and administration, than two hundred years might seem, as we read them, to have been mistaken in their date.620 Heedless, however, of this growing odium, James continued to solicit the affected coyness of the court of Madrid. The circumstances of that negotiation belong to general history.621 It is only necessary to remind the reader that the king was induced, during the residence of Prince Charles and the Duke of Buckingham in Spain, to swear to certain private articles, some of which he had already promised before their departure, by which he bound himself to suspend all penal laws affecting the catholics, to permit the exercise of their religion in private houses, and to procure from parliament, if possible, a legal toleration. This toleration, as preliminary to the entire re-establishment of popery, had been the first great object of Spain in the treaty. But that court, having protracted the treaty for years, in order to extort more favourable terms, and interposed a thousand pretences, became the dupe of its own artifices; the resentment of a haughty minion overthrowing with ease the painful fabric of this tedious negotiation.

Parliament of 1624.—Buckingham obtained a transient and unmerited popularity by thus averting a great public mischief, which rendered the next parliament unexpectedly peaceable. The Commons voted three subsidies and three-fifteenths, in value about £300,000;622 but with a condition, proposed by the king himself, that, in order to ensure its application to naval and military armaments, it should be paid into the hands of treasurers appointed by themselves, who should issue money only on the warrant of the council of war. He seemed anxious to tread back the steps made in the former session, not only referring the highest matters of state to their consideration, but promising not to treat for peace without their advice. They, on the other hand, acknowledged themselves most bound to his majesty for having been pleased to require their humble advice in a case so important, not meaning, we may be sure, by these courteous and loyal expressions, to recede from what they had claimed in the last parliament as their undoubted right.623

Impeachment of Middlesex.—The most remarkable affair in this session was the impeachment of the Earl of Middlesex, actually lord treasurer of England, for bribery and other misdemeanours. It is well known that the Prince of Wales and Duke of Buckingham instituted this prosecution to gratify the latter's private pique against the wishes of the king, who warned them they would live to have their fill of parliamentary impeachment. It was conducted by managers on the part of the Commons in a very regular form, except that the depositions of witnesses were merely read by the clerk; that fundamental rule of English law which insists on the vivâ voce examination, being as yet unknown, or dispensed with in political trials. Nothing is more worthy of notice in the proceedings upon this impeachment than what dropped from Sir Edwin Sandys, in speaking upon one of the charges. Middlesex had laid an imposition of £3 per ton on French wines, for taking off which he received a gratuity. Sandys, commenting on this offence, protested in the name of the Commons, that they intended not to question the power of imposing claimed by the king's prerogative: this they touched not upon now; they continued only their claim, and when they should have occasion to dispute it, would do so with all due regard to his majesty's state and revenue.624 Such cautious and temperate language, far from indicating any disposition to recede from their pretensions, is rather a proof of such united steadiness and discretion as must ensure their success. Middlesex was unanimously convicted by the peers.625 His impeachment was of the highest moment to the Commons; as it restored for ever that salutary constitutional right which the single precedent of Lord Bacon might have been insufficient to establish against the ministers of the Crown.

The two last parliaments had been dissolved without passing a single act, except the subsidy bill of 1621. An interval of legislation for thirteen years was too long for any civilised country. Several statutes were enacted in the present session, but none so material as that for abolishing monopolies for the sale of merchandise, or for using any trade.626 This is of a declaratory nature, and recites that they are already contrary to the ancient and fundamental laws of the realm. Scarce any difference arose between the Crown and the Commons. This singular calm might probably have been interrupted, had not the king put an end to the session. They expressed some little dissatisfaction at this step,627 and presented a list of grievances, one only of which is sufficiently considerable to deserve notice; namely, the proclamations already mentioned in restraint of building about London, whereof they complain in very gentle terms, considering their obvious illegality and violation of private right.628

The Commons had now been engaged, for more than twenty years, in a struggle to restore and to fortify their own and their fellow subjects' liberties. They had obtained in this period but one legislative measure of importance, the late declaratory act against monopolies. But they had rescued from disuse their ancient right of impeachment. They had placed on record a protestation of their claim to debate all matters of public concern. They had remonstrated against the usurped prerogatives of binding the subject by proclamation, and of levying customs at the out-ports. They had secured beyond controversy their exclusive privilege of determining contested elections of their members. They had maintained, and carried indeed to an unwarrantable extent, their power of judging and inflicting punishment, even for offences not committed against their house. Of these advantages some were evidently incomplete; and it would require the most vigorous exertions of future parliaments to realise them. But such exertions the increased energy of the nation gave abundant cause to anticipate. A deep and lasting love of freedom had taken hold of every class except perhaps the clergy; from which, when viewed together with the rash pride of the court, and the uncertainty of constitutional principles and precedents, collected through our long and various history, a calm by-stander might presage that the ensuing reign would not pass without disturbance, nor perhaps end without confusion.