Chapter V: On the CIVIL Government of Elizabeth (3)

There must be few of my readers who are unacquainted with the animated sketch that Hume has delineated of the English constitution under Elizabeth. It has been partly the object of the present chapter to correct his exaggerated outline; and nothing would be more easy than to point at other mistakes into which he has fallen through prejudice, through carelessness, or through want of acquaintance with law. His capital and inexcusable fault in everything he has written on our constitution is to have sought for evidence upon one side only of the question. Thus the remonstrance of the judges against arbitrary imprisonment by the council is infinitely more conclusive to prove that the right of personal liberty existed, than the fact of its infringement can be to prove that it did not. There is something fallacious in the negative argument which he perpetually uses, that because we find no mention of any umbrage being taken at certain strains of prerogative, they must have been perfectly consonant to law. For if nothing of this could be traced, which is not so often the case as he represents it, we should remember that even when a constant watchfulness is exercised by means of political parties and a free press, a nation is seldom alive to the transgressions of a prudent and successful government. The character, which on a former occasion I have given of the English constitution under the house of Plantagenet, may still be applied to it under the line of Tudor, that it was a monarchy greatly limited by law, but retaining much power that was ill calculated to promote the public good, and swerving continually into an irregular course, which there was no restraint adequate to correct. It may be added, that the practical exercise of authority seems to have been less frequently violent and oppressive, and its legal limitations better understood in the reign of Elizabeth, than for some preceding ages; and that sufficient indications had become distinguishable before its close, from which it might be gathered that the seventeenth century had arisen upon a race of men in whom the spirit of those who stood against John and Edward was rekindled with a less partial and a steadier warmth.[463]

FOOTNOTES:

[369] _State Trials_, i. 1148.

[370] _Id._ 1256.

[371] _Id._ 1403.

[372] Murden, 337. Dr. Lingard has fully established, what indeed no one could reasonably have disputed, Elizabeth's passion for Anjou; and says very truly, "the writers who set all this down to policy cannot have consulted the original documents."--P. 149. It was altogether repugnant to sound policy. Persons, the jesuit, indeed says, in his famous libel, _Leicester's Commonwealth_, written not long after this time, that it would have been "honourable, convenient, profitable, and needful:" which every honest Englishman would interpret by the rule of contraries. Sussex wrote indeed to the queen in favour of the marriage (Lodge, ii. 177); and Cecil undoubtedly professed to favour it; but this must have been out of obsequiousness to the queen. It was a habit of this minister to set down briefly the arguments on both sides of a question, sometimes in parallel columns, sometimes successively; a method which would seem too formal in our age, but tending to give himself and others a clearer view of the case. He has done this twice in the present instance (Murden, 322, 331); and it is evident that he does not, and cannot, answer his own objections to the match. When the council waited on her with this resolution in favour of the marriage, she spoke sharply to those whom she believed to be against it. Yet the treaty went on for two years; her coquetry in this strange delay breeding her, as Walsingham wrote from Paris, "greater dishonour than I dare commit to paper." Strype's _Annals_, iii. 2. That she ultimately broke it off, must be ascribed to the suspiciousness and irresolution of her character, which, acting for once conjointly with her good understanding, overcame a disgraceful inclination.

[373] Strype, iii. 480. Stubbe always signed himself Scaeva, in these left-handed productions.

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

[375] Several volumes of the Harleian MSS. illustrate the course of government under Elizabeth. The copious analysis in the catalogue, by Humphrey Wanley and others, which I have in general found accurate, will, for most purposes, be sufficient. See particularly vol. 703. A letter, _inter alia_, in this (folio 1) from Lord Hunsdon and Walsingham to the sheriff of Sussex, directs him not to assist the creditors of John Ashburnham in molesting him, "till such time as our determination touching the premises shall be known," Ashburnham being to attend the council to prefer his complaint. See also vols. 6995, 6996, 6997, and many others. The Lansdowne catalogue will furnish other evidences.

[376] Anderson's _Reports_, i. 297. It may be found also in the _Biographia Britannica_, and the _Biographical Dictionary_, art. Anderson.

[377] Lansdowne MSS. lviii. 87. The Harleian MS. 6846 is a mere transcript from Anderson's _Reports_, and consequently of no value. There is another in the same collection, at which I have not looked.

[378] Hume says, "that the queen had taken a dislike to the smell of this useful plant." But this reason, if it existed, would hardly have induced her to prohibit its cultivation throughout the kingdom. The real motive appears in several letters of the Lansdowne collection. By the domestic culture of woad, the customs on its importation were reduced; and this led to a project of levying a sort of excise upon it at home. _Catalogue of Lansdowne MSS._ xlix. 32-60. The same principle has since caused the prohibition of sowing tobacco.

[379] Camden, 476.

[380] Rymer, xvi. 448.

[381] Many of these proclamations are scattered through Rymer; and the whole have been collected in a volume.

[382] By a proclamation in 1560, butchers killing flesh in Lent are made subject to a specific penalty of L20; which was levied upon one man. Strype's _Annals_, i. 235. This seems to have been illegal.

[383] Lord Camden in 1766. Hargrave, in preface to "Hale de Jure Coronae," in _Law Tracts_, vol. i.

[384] We find an exclusive privilege granted in 1563 to Thomas Cooper, afterwards Bishop of Winchester, to print his _Thesaurus_, or Latin dictionary for twelve years (Rymer, xv. 620); and to Richard Wright to print his translation of Tacitus during his natural life; any one infringing this privilege to forfeit 40_s._ for every printed copy. _Id._ xvi. 97.

[385] Strype's _Parker_, 221. By the 51st of the queen's injunctions, in 1559, no one might print any book or paper whatsoever unless the same be first licensed by the council or ordinary.

[386] A proclamation, dated February 1589, against seditious and schismatical books and writings, commands all persons who shall have in their custody any such libels against the order and government of the church of England, or the rites and ceremonies used in it, to bring and deliver up the same with convenient speed to their ordinary. _Life of Whitgift_, Appendix 126. This has probably been one cause of the extreme scarcity of these puritanical pamphlets.

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

[388] Strype's _Whitgift_, 222, and Append. 94. The archbishop exercised his power over the press, as may be supposed, with little moderation. Not confining himself to the suppression of books favouring the two religions adverse to the church, he permitted nothing to appear that interfered in the least with his own notions. Thus we find him seizing an edition of some works of Hugh Broughton, an eminent Hebrew scholar. This learned divine differed from Whitgift about Christ's descent to hell. It is amusing to read that ultimately the primate came over to Broughton's opinion; which, if it prove some degree of candour, is a glaring evidence of the advantages of that free enquiry he had sought to suppress. P. 384, 431.

[389] Camden, 449; Strype's _Annals_, ii. 288. The queen had been told, it seems, of what was done in Wyatt's business, a case not all parallel; though there was no sufficient necessity even in that instance to justify the proceeding by martial law. But bad precedents always beget "progeniem vitiosiorem."

There was a difficulty how to punish Burchell capitally, which probably suggested to the queen this strange expedient. It is said, which is full as strange, that the bishops were about to pass sentence on him for heresy, in having asserted that a papist might lawfully be killed. He put an end, however, to this dilemma, by cleaving the skull of one of the keepers in the Tower, and was hanged in a common way.

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

[391] Rymer, xvi. 279.

[392] Carte, 693, from Stowe.

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

[394] Strype, iii. Append. 147. This was exacted in order to raise men for service in the Low Countries. But the beneficed clergy were always bound to furnish horses and armour, or their value, for the defence of the kingdom in peril of invasion or rebellion. An instance of their being called on for such a contingent occurred in 1569. Strype's _Parker_, 273; and Rymer will supply many others in earlier times.

The magistrates of Cheshire and Lancashire had imposed a charge of eightpence a week on each parish of those counties for the maintenance of recusants in custody. This, though very nearly borne out by the letter of a recent statute (14th Eliz. c. 5), was conceived by the inhabitants to be against law. We have, in Strype's _Annals_, vol. iii. Append. 56, a letter from the privy council, directing the charge to be taken off. It is only worth noticing, as it illustrates the jealousy which the people entertained of anything approaching to taxation without consent of parliament, and the caution of the ministry in not pushing any exertion of prerogative farther than would readily be endured.

[395] Murden, 632. That some degree of intimidation was occasionally made use of, may be inferred from the following letter of Sir Henry Cholmley to the mayor and aldermen of Chester, in 1597. He informs them of letters received by him from the council, "whereby I am commanded in all haste to require you that you and every of you send in your several sums of money unto Torpley (Tarporly) on Friday next the 23rd December, or else that you and every of you give me meeting there, the said day and place, to enter severally into bond to her highness for your appearance forthwith before their lordships, to show cause wherefore you and every of you should refuse to pay her majesty loan according to her highness several privy-seals by you received, letting you wit that I am now directed by other letters from their lordships to pay over the said money to the use of her majesty, and to send and certify the said bonds so taken: which praying you heartily to consider of as the last direction of the service, I heartily bid you farewell." Harl. MSS. 2173, 10.

[396] Strype, ii. 102. In Haynes, p. 518, is the form of a circular letter or privy-seal, as it was called from passing that office, sent in 1569, a year of great difficulty, to those of whose aid the queen stood in need. It contains a promise of repayment at the expiration of twelve months. A similar application was made through the lord-lieutenants in their several counties, to the wealthy and well disposed, in 1588, immediately after the destruction of the Armada. The loans are asked only for the space of a year, as "heretofore has been yielded unto her majesty in times of less need and danger, and yet always fully repaid." Strype, iii. 535. Large sums of money are said to have been demanded of the citizens of London in 1599. Carte, 675. It is perhaps to this year that we may refer a curious fact mentioned in Mr. Justice Hutton's judgment in the case of ship-money. "In the time of Queen Elizabeth (he says), who was a gracious and a glorious queen, yet in the end of her reign, whether through covetousness, or by reason of the wars that came upon her, I know not by what counsel she desired benevolence, the statue of 2nd Richard III. was pressed, yet it went so far, that by commission and direction money was gathered in every inn of court; and I myself for my part paid twenty shillings. But when the queen was informed by her judges that this kind of proceeding was against law, she gave directions to pay all such sums as were collected back; and so I (as all the rest of our house, and as I think of other houses too) had my twenty shillings repaid me again; and privy counsellors were sent down to all parts, to tell them that it was for the defence of the realm, and it should be repaid them again." _State Trials_, iii. 1199.

[397] Haynes, 518. Hume has exaggerated this, like other facts, in his very able, but partial, sketch of the constitution in Elizabeth's reign.

[398] The following are a few specimens, copied from the Lansdowne catalogue. "Sir Antony Cooke to Sir William Cecil, that he would move Mr. Peters to recommend Mr. Edward Stanhope to a certain young lady of Mr. P.'s acquaintance, whom Mr. Stanhope was desirous to marry."--Jan. 25, 1563, lxxi. 73. "Sir John Mason to Sir William Cecil, that he fears his young landlord, Spelman, has intentions of turning him out of his house, which will be disagreeable; hopes therefore Sir William C. will speak in his behalf."--Feb. 4, 1566, _id._ 74. "Lord Stafford to Lord Burleigh, to further a match between a certain rich citizen's daughter and his son; he requests Lord B. to appoint the father to meet him (Lord Stafford) some day at his house, 'where I will in few words make him so reasonable an offer as I trust he will not disallow.'"--lxviii. 20. "Lady Zouch to Lord Burleigh, for his friendly interposition to reconcile Lord Zouch her husband, who had forsaken her through jealousy."--1593, lxxiv. 72.

[399] _Biographia Britannica_, art. Cecil.

[400] Townsend's manuscript has been separately published; but I do not find that D'Ewes has omitted anything of consequence.

[401] D'Ewes, p. 82; Strype, i. 258, from which latter passage it seems that Cecil was rather adverse to the proposal.

[402] D'Ewes, p. 85. The speech which Hume, on D'Ewes's authority, has put into the queen's mouth at the end of this session, is but an imperfect copy or abridgment of one which she made in 1566; as D'Ewes himself afterwards confesses. Her real answer to the speaker in 1563 is in Harrington's _Nugae Antiquae_, vol. i. p. 80.

[403] Camden, p. 400.

[404] The courtiers told the house, that the queen intended to marry in order to divert them from their request that they would name her successor. Strype, vol. i. p. 494.

[405] D'Ewes, p. 128.

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

[407] D'Ewes, p. 141.

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

[409] Something of this sort seems to have occurred in the session of 1566, as may be inferred from the lord keeper's reproof to the speaker for calling her majesty's letters patent in question. _Id._ 115.

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

[411] Journals, 9 and 10 Apr.

[412] D'Ewes, 159.

[413] D'Ewes, 151.

[414] Bell, I suppose, had reconciled himself to the court, which would have approved no speaker chosen without its recommendation. There was always an understanding between this servant of the house and the government. Proofs and presumptions of this are not unfrequent. In Strype's _Annals_, vol. iv. p. 124, we find instructions for the speaker's speech in 1592, drawn up by Lord Burleigh, as might very likely be the case on other occasions.

[415] D'Ewes, 219.

[416] _Id._, 213, 214.

[417] D'Ewes, 236.

[418] D'Ewes, 260.

[419] _Id._ 282.

[420] D'Ewes, 410.

[421] P. 438. Townsend calls this gentleman Davenport, which no doubt was his true name.

[422] D'Ewes, 433.

[423] _Id. 440 et post._

[424] _Id._ 470.

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

[426] _Id._ 62.

[427] See the letter in Lodge's _Illustrations_, vol. iii. 34. Townsend says he was committed to Sir John Fortescue's keeping, a gentler sort of imprisonment. P. 61.

[428] D'Ewes, 470.

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

[430] Strype has published, from Lord Burleigh's manuscripts, a speech made in the parliament of 1589 against the subsidy then proposed. _Annals_, vol. iii. Append. 238. Not a word about this occurs in D'Ewes's Journal; and I mention it as an additional proof how little we can rely on negative inferences as to proceedings in parliament at this period.

[431] D'Ewes, 547.

[432] Their joy and gratitude were rather premature, for her majesty did not revoke all of them; as appears by Rymer, xvi. 540, and Carte, iii. 712. A list of them, dated May 1603 (Lodge, iii. 159), seems to imply that they were still existing.

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

The speeches made in this parliament are reported more fully than usual by Heywood Townsend, from whose journal those of most importance have been transcribed by D'Ewes. Hume has given considerable extracts, for the sole purpose of inferring from this very debate on monopolies, that the royal prerogative was, according to the opinion of the House of Commons itself, hardly subject to any kind of restraint. But the passages he selects are so unfairly taken (some of them being the mere language of courtiers, others separated from the context, in order to distort their meaning), that no one who compares them with the original can acquit him of extreme prejudice. The adulatory strain in which it was usual to speak of the sovereign often covered a strong disposition to keep down his authority. Thus when a Mr. Davies says in this debate: "God hath given that power to absolute princes, which he attributes to himself--Dixi quod dii estis;" it would have been seen, if Hume had quoted the following sentence, that he infers from hence, that justice being a divine attribute, the king can do nothing that is unjust, and consequently cannot grant licences to the injury of his subjects. Strong language was no doubt used in respect of the prerogative. But it is erroneous to assert, with Hume, that it came equally from the courtiers and country gentlemen, and was admitted by both. It will chiefly be found in the speeches of Secretary Cecil, the official defender of prerogative, and of some lawyers. Hume, after quoting an extravagant speech ascribed to Sergeant Heyle, that "all we have is her majesty's, and she may lawfully at any time take it from us; yea, she hath as much right to all our lands and goods as to any revenue of her crown," observes that Heyle was an eminent lawyer, a man of character. That Heyle was high in his profession is beyond doubt; but in that age, as has since, though from the change of times less grossly, continued to be the case, the most distinguished lawyers notoriously considered the court and country as plaintiff and defendant in a great suit, and themselves as their retained advocates. It is not likely, however, that Heyle should have used the exact words imputed to him. He made, no doubt, a strong speech for prerogative, but so grossly to transcend all limits of truth and decency seems even beyond a lawyer seeking office. Townsend and D'Ewes write with a sort of sarcastic humour, which is not always to be taken according to the letter. D'Ewes, 433; Townsend, 205.

Hume proceeds to tell us, that it was asserted this session, that the speaker might either admit or reject bills in the house; and remarks, that the very proposal of it is a proof at what a low ebb liberty was at that time in England. There cannot be a more complete mistake. No such assertion was made; but a member suggested that the speaker might, as the consuls in the Roman senate used, appoint the order in which bills should be read; at which speech, it is added, some hissed. D'Ewes, 677. The present regularity of parliamentary forms, so justly valued by the house, was yet unknown; and the members called confusedly for the business they wished to have brought forward.

[434] _Parl. Hist._ 958. In the session of 1571, a committee was appointed to confer with the attorney and solicitor-general about the return of burgesses from nine places which had not been presented in the last parliament. But in the end it was "ordered, by Mr. Attorney's assent, that the burgesses shall remain according to their returns; for that the validity of the charters of their towns is elsewhere to be examined, if cause be." D'Ewes p. 156, 159.

D'Ewes observes that it was very common in former times, in order to avoid the charge of paying wages to their burgesses, that a borough which had fallen into poverty or decay, either got licence of the sovereign for the time being to be discharged from electing members, or discontinued it of themselves; but that of late the members for the most part bearing their own charges, many of those towns which had thus discontinued their privilege, renewed it both in Elizabeth's reign and that of James. P. 80. This could only have been, it is hardly necessary to say, by obtaining writs out of chancery for that purpose. As to the payment of wages, the words of D'Ewes intimate that it was not entirely disused. In the session of 1586, the borough of Grantham complained that Arthur Hall (whose name now appears for the last time) had sued them for wages due to him as their representative in the preceding parliament; alleging that, as well by reason of his negligent attendance and some other offences by him committed in some of its sessions, as of his promise not to require any such wages, they ought not to be charged; and a committee having been appointed to enquire into this, reported that they had requested Mr. Hall to remit his claim for wages, which he had freely done. D'Ewes, p. 417.

[435] Strype mentions letters from the council to Mildmay, Sheriff of Essex, in 1559, about the choice of knights. _Annals_, v. i. p. 32. And other instances of interference may be found in the Lansdowne and Harleian collections. Thus we read that a Mr. Copley used to nominate burgesses for Gatton, "for that there were no burgesses in the borough." The present proprietor being a minor in custody of the court of wards, Lord Burleigh directs the Sheriff of Surrey to make no return without instructions from himself; and afterwards orders him to cancel the name of Francis Bacon in his indenture, he being returned for another place, and to substitute Edward Brown. Harl. MSS. DCCIII. 16.

I will introduce in this place, though not belonging to the present reign, a proof that Henry VIII. did not trust altogether to the intimidating effects of his despotism for the obedience of parliament, and that his ministers looked to the management of elections, as their successors have always done. Sir Robert Sadler writes to some one, whose name does not appear, to inform him that the Duke of Norfolk had spoken to the king, who was well content he should be a burgess of Oxford; and that he should "order himself in the said _room_ according to such instructions as the said Duke of Norfolk should give him from the king:" if he is not elected at Oxford, the writer will recommend him to some of "my lord's towns of his bishopric of Winchester." Cotton MSS. Cleopatra E. iv. 178. Thus we see that the practice of our government has always been alike; and we may add the same of the nobility, who interfered with elections full as continually, and far more openly, than in modern times. The difference is, that a secretary of the treasury, or peer's agent, does that with some precaution of secrecy, which the council board, or the peer himself, under the Tudors, did by express letters to the returning officer; and that the operating motive is the prospect of a good place in the excise or customs for compliance, rather than that of lying some months in the Fleet for disobedience.

A very late writer has asserted, as an undoubted fact, which "historic truth requires to be mentioned," that for the first parliament of Elizabeth, "five candidates were nominated by the court for each borough, and three for each county; and by the authority of the sheriffs, the members were chosen from among the candidates." Butler's _Book of the Roman Catholic Church_, p. 225. I never met with any tolerable authority for this, and believe it to be a mere fabrication; not certainly of Mr. Butler, who is utterly incapable of a wilful deviation from truth, but of some of those whom he too implicitly follows.

[436] D'Ewes, 168.

[437] Journals, p. 88.

[438] Holingshed, vol. iii. p. 824 (4to edit.); Hatsell's _Precedents_, vol. i. p. 53. Mr. Hatsell inclines too much, in my opinion, to depreciate the authority of this case, imagining that it was rather as the king's servant, than as a member of the house, that Ferrers was delivered. But, though Henry artfully endeavours to rest it chiefly on this ground, it appears to me that the Commons claim the privilege as belonging to themselves, without the least reference to this circumstance. If they did not always assert it afterwards, this negative presumption is very weak, when we consider how common it was to overlook or recede from precedents, before the constitution had been reduced into a system. Carte, vol. iii. p. 164, endeavours to discredit the case of Ferrers as an absolute fable, and certainly points out some inaccuracy as to dates; but it is highly improbable that the whole should be an invention. He returns to the subject afterwards (p. 541), and, with a folly almost inconceivable even in a Jacobite, supposes the puritans to have fabricated the tale, and prevailed on Holingshed to insert it in his history.

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

[440] Hatsell, 73, 92, 119.

[441] _Id._ 90.

[442] _Id._ 97.

[443] _Id._ 96.

[444] _Id._ 119.

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

[446] D'Ewes, 291; Hatsell, 93. The latter says, "I cannot but suspect, that there was some private history in this affair, some particular offence against the queen, with which we are unacquainted." But I believe the explanation I have given will be thought more to the purpose; and so far from having offended the queen, Hall seems to have had a patron in Lord Burleigh, to whom he wrote many letters, complaining of the Commons, which are extant in the Lansdowne collection. He seems to have been a man of eccentric and unpopular character, and had already incurred the displeasure of the Commons in the session of 1572, when he was ordered to be warned by the serjeant to appear at the bar "to answer for sundry lewd speeches used as well in the house as elsewhere." Another entry records him to have been "charged with seven several articles, but having humbly submitted himself to the house, and confessed his folly, to have been upon the question released with a good exhortation from the speaker." D'Ewes, 207, 212.

[447] Hatsell, 80.

[448] D'Ewes, 341.

[449] D'Ewes, 366. This case, though of considerable importance, is overlooked by Hatsell, who speaks of that of Hall as the only one before the long parliament, wherein the Commons have punished the authors of libels derogatory to their privileges. P. 127. Though he speaks only of libels, certainly the punishment of words spoken is at least as strong an exercise of power.

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

[451] D'Ewes, 393, etc.

[452] _Id._ 430.

[453] _Id._ 539.

[454] _Id._ 596.

[455] D'Ewes, 486. Another trifling circumstance may be mentioned to show the rising spirit of the age. In the session of 1601, Sir Robert Cecil having proposed that the speaker should _attend_ the lord keeper about some matter, Sir Edward Hobby took up the word in strong language, as derogatory to their dignity; and the secretary, who knew, as later ministers have done, that the Commons are never so unmanageable as on such points of honour, made a proper apology. _Id._ 627.

[456] Birch's _Memoirs_, i. 97, 120, 152, etc., ii. 129; Bacon's Works, vol. ii. p. 416, 435.

[457] Raleigh's _Dedication of his Prerogative of Parliaments to James I._ contains terrible things. "The bonds of subjects to their kings should always be wrought out of iron, the bonds of kings unto subjects but with cobwebs."--"All binding of a king by law upon the advantage of his necessity, makes the breach itself lawful in a king; his charters and all other instruments being no other than the surviving witnesses of his unconstrained will." The object, however, of the book, is to persuade the king to call a parliament (about 1613), and we are not to suppose that Raleigh meant what he said. He was never very scrupulous about truth. In another of his tracts, entitled _The Prince; or, Thesaurus of State_, he holds, though not without flattery towards James, a more reasonable language. "In every just state some part of the government is or ought to be impartial to the people; as in a kingdom, a voice or suffrage in making laws: and sometimes also in levying of arms, if the charge be great and the prince be forced to borrow help of his subjects, the matter rightly may be propounded to a parliament, that the tax may seem to have proceeded from themselves."

[458] _Le Contre Un_ of La Boetie, the friend of Montaigne, is, as the title intimates, a vehement philippic against monarchy. It is subjoined to some editions of the latter's essays. The _Franco-Gallia_ of Hottoman contains little more than extracts from Fredegarius, Aimoin, and other ancient writers, to prove the elective character and general freedom of the monarchy under the two first races. This made a considerable impression at the time, though the passages in question have been so often quoted since, that we are almost surprised to find the book so devoid of novelty. Hubert Languet's _Vindicae contra Tyrannos_, published under the name of Junius Brutus, is a more argumentative discussion of the rights of governors and their subjects.

[459] D'Ewes, p. 115.

I have already adverted to Gardiner's resolute assertion of the law against the prince's single will, as a proof that, in spite of Hume's preposterous insinuations to the contrary, the English monarchy was known and acknowledged to be limited. Another testimony may be adduced from the words of a great protestant churchman. Archbishop Parker, writing to Cecil to justify himself for not allowing the queen's right to grant some dispensation in a case of marriage, says, "he would not dispute of the queen's absolute power, or prerogative royal, how far her highness might go in following the Roman authority; but he yet doubted, that if any dispensation should pass from her authority, to any subject, not avouchable by laws of her realm, made and established by herself and her three estates, whether that subject be in surety at all times afterwards: specially seeing there be parliament laws, precisely determining cases of dispensations." Strype's _Parker_, 177.

Perhaps, however, there is no more decisive testimony to the established principles of limited monarchy in the age of Elizabeth, than a circumstance mentioned in Anderson's _Reports_, 154. The queen had granted to Mr. Richard Cavendish an office for issuing certain writs, and directed the judges to admit him to it, which they neglected (that is, did not think fit) to do. Cavendish hereupon obtained a letter from her majesty, expressing her surprise that he was not admitted according to her grant, and commanding them to sequester the profits of the office for his use, or that of any other to whom these might appear to be due, as soon as the controversy respecting the execution of the said office should be decided. It is plain that some other persons were in possession of these profits, or claimed a right therein. The judges conceived that they could not lawfully act according to the said letter and command, because through such a sequestration of the emoluments, those who claimed a right to issue the writs would be disseised of their freehold. The queen, informed that they did not obey the letter, sent another, under the sign manual, in more positive language, ending in these words: "We look that you and every of you should dutifully fulfil our commandment herein, and these our letters shall be your warrant."--21st April 1587. This letter was delivered to the justices in the presence of the chancellor and Lord Leicester, who were commissioned to hear their answer, telling them also, that the queen had granted the patent on account of her great desire to provide for Cavendish. The judges took a little time to consult what should be said; and, returning to the Lords, answered that they desired in all respects humbly to obey her majesty; but, as this case is, could not do so without perjury, which they well knew the queen would not require, and so went away. Their answer was reported to the queen, who ordered the chancellor, chief justice of the king's bench, and master of the rolls, to hear the judges' reasons; and the queen's council were ordered to attend, when the queen's serjeant began to show the queen's prerogative to grant the issuing of writs, and showed precedents. The judges protested in answer, that they had every wish to assist her majesty to all her rights, but said that this manner of proceeding was out of course of justice; and gave their reasons, that the right of issuing these writs and fees incident to it was in the prothonotaries and others, who claimed it by freehold; who ought to be made to answer, and not the judges, being more interested therein. This was certainly a little feeble, but they soon recovered themselves. They were then charged with having neglected to obey these letters of the queen; which they confessed, but said that this was no offence or contempt towards her majesty, because the command was against the law of the land; in which case, they said, no one is bound to obey such command. When farther pressed, they said the queen herself was sworn to keep the laws as well as they; and that they could not obey this command without going against the laws directly and plainly, against their oaths, and to the offence of God, her majesty, the country and commonwealth in which they were born and live: so that if the fear of God were gone from them, yet the examples of others, and the punishment of those who had formerly transgressed the laws, would remind them and keep them from such an offence. Then they cited the Spensers, and Thorp, a judge under Edward III., and precedents of Richard II.'s time, and of Empson, and the statutes from Magna Charta, which show what a crime it is for judges to infringe the laws of the land; and thus, since the queen and the judges were sworn to observe them, they said that they would not act as was commanded in these letters.

All this was repeated to her majesty for her good allowance of the said reasons, and which her majesty, as I have heard, says the reporter, took well; but nothing farther was heard of the business.--Such was the law and the government, which Mr. Hume has compared to that of Turkey! It is almost certain, that neither James nor Charles would have made so discreet a sacrifice of their pride and arbitrary temper; and in this self-command lay the great superiority of Elizabeth's policy.

[460] _Harborowe of True and Faithful Subjects_, 1559. Most of this passage is quoted by Dr. M'Crie, in his _Life of Knox_, vol. i. note BB, to whom I am indebted for pointing it out.

[461] _Commonwealth of England_, b. ii. c. 3.

[462] Bodin says the English ambassador, M. Dail (Mr. Dale), had assured him, not only that the king may assent to or refuse a bill as he pleases, but that il ne laisse pas d'en ordonner a son plaisir, et centre la volonte des estats, comme on a vu Henry VIII. avoir toujours use de sa puissance souveraine. He admitted, however, that taxes could only be imposed in parliament. _De la Republique_, l. i. c. 8.

[463] The misrepresentations of Hume as to the English constitution under Elizabeth, and the general administration of her reign, have been exposed since the present chapter was written, by Mr. Brodie, in his _History of the British Empire from the Accession of Charles I. to the Restoration_, vol. i. c. 3. In some respects, Mr. B. seems to have gone too far in an opposite system, and to represent the practical course of government as less arbitrary than I can admit it to have been.