Chapter VI: On the English Constitution Under James I (4)

[464] Father Persons, a subtle and lying Jesuit, published in 1594, under the name of Doleman, a treatise entitled _Conference about the next Succession to the Crown of England_. This book is dedicated to Lord Essex, whether from any hopes entertained of him, or as was then supposed, in order to injure his fame and his credit with the queen. _Sidney Papers_, i. 357; Birch's _Memoirs_, i. 313. It is written with much art, to show the extreme uncertainty of the succession, and to perplex men's minds by multiplying the number of competitors. This, however, is but the second part of his _Conference_, the aim of the first being to prove the right of commonwealths to depose sovereigns, much more to exclude the right heir, especially for want of true religion. "I affirm and hold," he says, "that for any man to give his help, consent, or assistance towards the making of a king whom he judgeth or believeth to be faulty in religion, and consequently would advance either no religion, or the wrong, if he were in authority, is a most grievous and damnable sin to him that doth it, of what side soever the truth be, or how good or bad soever the party be that is preferred."--P. 216. He pretends to have found very few who favour the King of Scots' title; an assertion by which we may appreciate his veracity. The protestant party, he tells us, was wont to favour the house of Hertford, but of late have gone more towards Arabella, whose claim the Lord Burleigh is supposed to countenance. P. 241. The drift of the whole is to recommend the infanta, by means of perverted history and bad law, yet ingeniously contrived to ensnare ignorant persons. In his former and more celebrated treatise, _Leicester's Commonwealth_, though he harps much on the embarrassments attending the succession, Persons argues with all his power in favour of the Scottish title, Mary being still alive, and James's return to the faith not desperate. Both these works are full of the mendacity generally and justly ascribed to his order; yet they are worthy to be read by any one who is curious about the secret politics of the queen's reign.

Philip II. held out assurances, that if the English would aid him in dethroning Elizabeth, a free parliament should elect any catholic sovereign at their pleasure, not doubting that their choice would fall on the infanta. He promised also to enlarge the privileges of the people, to give the merchants a free trade to the Indies, with many other flattering inducements. Birch's _Memoirs_, ii. 308. But most of the catholic gentry, it is just to observe, would never concur in the invasion of the kingdom by foreigners, preferring the elevation of Arabella, according to the pope's project. This difference of opinion gave rise, among other causes, to the violent dissensions of that party in the latter years of Elizabeth's reign; dissensions that began soon after the death of Mary, in favour of whom they were all united, though they could never afterwards agree on any project for the succession. Winwood's _Memorials_, i. 57; _Lettres du Cardinal d'Ossat_, ii. 501.

For the life and character of the famous Father Persons, or Parsons, above mentioned, see Dodd's _Church History_, the _Biographia Britannica_, or Miss Aikin's _James I._, i. 360. Mr. Butler is too favourably inclined towards a man without patriotism or veracity. Dodd plainly thinks worse of him than he dares speak.

[465] D'Ossat, _ubi supra_. Clement had, some years before, indulged the idle hope that France and Spain might unite to conquer England, and either bestow the kingdom on some catholic prince or divide it between themselves, as Louis XII. and Ferdinand had done with Naples in 1501; an example not very inviting to the French. D'Ossat, Henry's minister at Rome, pointed out the difficulties of such an enterprise, England being the greatest naval power in the world, and the people warlike. The pope only replied, that the kingdom had been once conquered, and might be so again; and especially being governed by an old woman, whom he was ignorant enough to compare with Joanna II. of Naples. Vol. i. 399. Henry IV. would not even encourage the project of setting up Arabella, which he declared to be both unjust and chimerical. _Mem. de Sully_, l. 15. A knot of protestants were also busy about the interests of Arabella, or suspected of being so; Raleigh, Cobham, Northumberland, though perhaps the last was catholic. Their intrigues occupy a great part of the letters of other intriguers, Cecil and Lord Henry Howard, in the _Secret Correspondence with King James_, published by Sir David Dalrymple, vol. i. _passim_.

[466] The explicit declaration on her death-bed ascribed to her by Hume and most other writers, that her kingsman the King of Scots should succeed her, is not confirmed by Carey, who was there at the time. "She was speechless when the council proposed the King of Scots to succeed her, but put her hand to her head as if in token of approbation." E. of Monmouth's _Memoirs_, p. 176. But her uniform conduct shows her intentions. See, however, D'Israeli's _Curiosities of Literature_, iii. 107.

It is impossible to justify Elizabeth's conduct towards James in his own kingdom. What is best to be said for it is, that his indiscretion, his suspicious intrigues at Rome and Madrid, the dangerous influence of his favourites, and the evident purpose of the court of Spain to make him its tool, rendered it necessary to keep a very strict watch over his proceedings. If she excited the peers and presbyters of Scotland against their king, he was not behind her in some of the last years of her reign. It appears by a letter from the Earl of Mar, in Dalrymple's _Secret Correspondence_, p. 2, that James had hopes of a rebellion in England in 1601, which he would have had no scruple in abetting. And a letter from him to Tyrone, in the Lansdowne MSS. lxxxiv. 36, dated 22nd Dec. 1597, when the latter was at least preparing for rebellion, though rather cautious, is full of expressions of favour, and of promises to receive his assistance thankfully at the queen's death. This letter being found in the collection once belonging to Sir Michael Hicks, must have been in Lord Burleigh's, and probably in Elizabeth's hands; it would not make her less inclined to instigate conspiracies across the Tweed. The letter is not an original, and may have been communicated by some one about the King of Scots in the pay of England.

[467] See Burnet, vol. i, Appendix 267, for Secretary Lethington's letter to Cecil, where he tells a circumstantial story so positively, and so open, if false, to a contradiction it never received, that those who lay too much stress on this very equivocal species of presumption would, if the will had perished, have reckoned its forgery beyond question. The king's death approaching, he asserts, "some as well known to you as to me caused William Clarke, sometimes servant to Thomas Heneage, to sign the supposed will with a stamp, for otherwise signed it was never;" for which he appeals to an attestation of the late Lord Paget in parliament, and requests the depositions of several persons now living to be taken. He proceeds to refer him "to the original will surmised to be signed with the king's own hand, that thereby it may most clearly and evidently appear by some differences, how the same was not signed with the king's hand, but stamped as aforesaid. And albeit it is used both as an argument and calumniation against my sovereign by some, that the said original hath been embezzled in Queen Mary's time, I trust God will and hath reserved the same to be an instrument to relieve [prove] the truth, and to confound false surmises, that thereby the right may take place, notwithstanding the many exemplifications and transcripts, which being sealed with the great seal, do run abroad in England." Lesley, Bishop of Ross, repeats the same story with some additions. Bedford's _Hereditary Right_, p. 197. A treatise of Hales, for which he suffered imprisonment, in defence of the Suffolk title under the will, of which there is a manuscript in the British Museum, Harl. MSS. 537, and which is also printed in the appendix to the book last quoted, leads me to conjecture that the original will had been mislaid or rather concealed at that time. For he certainly argues on the supposition that it was not forthcoming, and had not himself seen it; but "he has been informed that the king's name is evidently written with a pen, though some of the strokes are unseen, as if drawn by a weak and trembling hand." Everyone who has seen the will must bear witness to the correctness of this information. The reappearance of this very remarkable instrument was, as I conceive, after the Revolution; for Collier mentions that he had heard it was in existence; and it is also described in a note to the _Acta Regia_.

[468] It is right to mention, that some difference of opinion exists as to the genuineness of Henry's signature. But as it is attested by many witnesses, and cannot be proved a forgery, the legal presumption turns much in its favour.

[469] Bedford's (Harbin's) _Hereditary Right Asserted_, p. 204.

[470] A manuscript in the Cottonian library, Faustina A. xi., written about 1562 in a very hostile spirit, endeavours to prove from the want of testimony, and from some variances in their depositions (not very material ones), that their allegations of matrimony could not be admitted, and that they had incurred an ecclesiastical censure for fornication. But another, which I have also found in the Museum, Harl. MSS. 6286, contains the whole proceedings and evidence, from which I have drawn the conclusion in the text. Their ignorance of the clergyman who performed the ceremony is not perhaps very extraordinary; he seems to have been one of those vagabond ecclesiastics, who, till the marriage act of 1752, were always ready to do that service for a fee.

[471] "Hereupon I shall add, what I have heard related from persons of great credit, which is, that the validity of this marriage was afterwards brought to a trial at the common law; when the minister who married them being present, and other circumstances agreeing, the jury (whereof John Digby of Coleshill, in com. War. esquire, was the foreman) found it a good marriage." _Baronage of England_, part ii. 369. Mr. Luders doubts the accuracy of Dugdale's story; and I think it not unlikely that it is a confused account of what happened in the court of wards.

[472] I derive this fact from a Cotton MS. Vitellius C. xvi. 412, etc.; but the volume is much burned, and the papers confused with others relative to Lord Essex's divorce. See as to the same suit, or rather perhaps that mentioned in the next note, Birch's _Negotiations_, p. 219, or Aikin's _James I._ i. 225.

[473] "The same day a great cause between the Lord Beauchamp and Monteagle was heard in the court of wards, the main point whereof was to prove the lawfulness of E. of Hertford's marriage. The court sat until five of the clock in the afternoon, and the jury had a week's respite for the delivery of their verdict." Letter of Sir E. Hoby to Sir T. Edmonds, Feb. 10, 1606. "For my lord of Hertford's cause, when the verdict was ready to be given up, Mr. Attorney interposed himself for the king, and said that the land that they both strove for was the king's, and until his title were decided, the jury ought not to proceed; not doubting but the king will be gracious to both lords. But thereby both land and legitimation remain undecided." The same to the same March 7. Sloane MSS. 4176.

[474] Dugdale's _Baronage_; Luders' _Essay on the Right of Succession to the Crown in the Reign of Elizabeth_. This ingenious author is, I believe, the first who has taken the strong position as to the want of legal title to the house of Stuart which I have endeavoured to support. In the entertaining letters of Joseph Mede on the news of the day (Harl. MSS. 389), it is said that the king had thoughts of declaring Hertford's issue by Lady Catherine Grey illegitimate in the parliament of 1621, and that Lord Southampton's commitment was for having searched for proofs of their marriage. June 30, 1622.

[475] Luders, _ubi supra_.

[476] The representative of the title of Mary Brandon, Duchess of Suffolk, that is, the person on whom the claim has descended, according to the rules which determine the succession of the crown, on the supposition that Hertford was duly married to Catherine Grey, is the present Duchess of Buckingham; upon the contrary supposition, the Marquis of Stafford. This is, of course, if we may take for granted the accuracy of common books of genealogy. I have not adverted to one objection which some urged at the time, as we find by Persons's treatises, _Leicester's Commonwealth_, and the _Conference_, to the legitimacy of the Seymours. Catherine Grey had been betrothed, or perhaps married, to Lord Herbert, son of the Earl of Pembroke, during the brilliant days of her family, at the close of Edward's reign. But on her father's fall Pembroke caused a sentence of divorce to be pronounced, the grounds of which do not appear, but which was probably sufficient in law to warrant her subsequent union with Hertford. No advantage is taken of this in the proceedings, which seems to show that there was no legal bond remaining between the parties. Camden says she was divorced from Lord Herbert, "being so far gone with child, as to be very near her time." But from her youth at the time, and the silence of all other writers, I conclude this to be unworthy of credit.

[477] Bolingbroke is of this opinion; considering the act of recognition as "the aera of hereditary right, and of all those exalted notions concerning the power of prerogative of kings and the sacredness of their persons." _Dissertation on Parties_, Letter II.

[478] Stat. 1 Jac. c. 1.

[479] This is confirmed by a curious little tract in the British Museum, Sloane MSS. 827, containing a short history of the queen's death, and new king's accession. It affords a good contemporary illustration of the various feelings which influenced men at this crisis, and is written in a dispassionate manner. The author ascribes the loss of Elizabeth's popularity to the impoverishment of the realm, and to the abuses which prevailed. Carte says, "foreigners were shocked on James's arrival at the applause of the populace who had professed to adore the late queen, but in fact she had no huzzas after Essex's execution. She was in four days' time as much forgot as if she had never existed, by all the world, and even by her own servants." Vol. iii. p. 707. This is exaggerated, and what Carte could not know; but there is no doubt that the generality were glad of a change.

[480] Carte, no foe surely to the house of Stuart, says: "By the time he reached London, the admiration of the intelligent world was turned into contempt." On this journey he gave a remarkable proof of his hasty temper and disregard of law, in ordering a pickpocket taken in the fact to be hanged without trial. The historian last quoted thinks fit to say in vindication, that "all felonies committed within the verge of the court are cognizable in the court of the king's household," referring to 33 H. 8, c. i. This act, however, contains no such thing; nor does any court appear to have been held. Though the man's notorious guilt might prevent any open complaint of so illegal a proceeding, it did not fail to excite observation. "I hear our new king," says Sir John Harrington, "has hanged one man before he was tried; it is strangely done: now if the wind bloweth thus, why may not a man be tried before he has offended?" _Nugae Antiquae_, vol. i. p. 180.

Birch and Carte tell us, on the authority of the French ambassador's despatches, that on this journey he expressed a great contempt for women, suffering them to be presented on their knees, and indiscreetly censuring his own wife; that he offended the military men by telling them they might sheathe their swords, since peace was his object; that he showed impatience of the common people who flocked to see him while hunting, driving them away with curses, very unlike the affable manners of the late queen. This is confirmed by Wilson, in Kennet's _Complete History_, vol. ii. p. 667.

[481] Sully, being sent over to compliment James on his accession, persisted in wearing mourning for Elizabeth, though no one had done so in the king's presence, and he was warned that it would be taken ill; "dans une cour ou il sembloit qu'on eut si fort affecte de mettre en oubli cette grande reine qu'on n'y faisoit jamais mention d'elle, et qu'on evitoit meme de prononcer son nom." _Mem. de Sully_, l. 14. James afterwards spoke slightingly to Sully of his predecessor, and said that he had long ruled England through her ministers.

[482] It was subscribed by 825 ministers from twenty-five counties. It states, that neither as factious men desiring a popular party in the church, nor as schismatics aiming at the dissolution of the state ecclesiastical, they humbly desired the redress of some abuses. Their objections were chiefly to the cap and surplice, the cross in baptism, baptism by women, confirmation, the ring in marriage, the reading of the Apocrypha, bowing at the name of Jesus, etc.; to non-residence and incapable ministers, the commendams held by bishops, unnecessary excommunications, and other usual topics. Neal, p. 408; Fuller, part ii. p. 22.

[483] The puritans seem to have flattered themselves that James would favour their sect, on the credit of some strong assertions he had occasionally made of his adherence to the Scots kirk. Some of these were a good while before; but on quitting the kingdom he had declared that he left it in a state which he did not intend to alter. Neal, 406. James, however, was all his life rather a bold liar than a good dissembler. It seems strange that they should not have attended to his _Basilicon Doron_, printed three years before, though not for general circulation, wherein there is a passage quite decisive of his disposition towards the presbyterians and their scheme of polity. The Millenary Petition indeed did not go so far as to request anything of that kind.

[484] Strype's _Whitgift_, p. 571; Collier, p. 675; Neal, p. 411; Fuller, part ii. p. 7.; _State Trials_, vol. ii. p. 69; _Phoenix Britannicus_, i. 141; Winwood, ii. 13. All these, except the last, are taken from an account of the conference published by Barlow, and probably more favourable to the king and bishops than they deserved. See what Harrington, an eye-witness, says in _Nugae Antiquae_, i. 181, which I would quote as the best evidence of James's behaviour, were the passage quite decent.

[485] Reynolds, the principal disputant on the puritan side, was nearly, if not altogether, the most learned man in England. He was censured by his faction for making a weak defence; but the king's partiality and intemperance plead his apology. He is said to have complained of unfair representation in Barlow's account. _Hist. and Ant. of Oxford_, ii. 293. James wrote a conceited letter to one Blake, boasting of his own superior logic and learning. Strype's _Whitgift_, Append. 239.

[486] Rymer, xvi. 565.

[487] Strype's _Whitgift_, 587. How desirous men not at all connected in faction with the puritans were of amendments in the church, appears by a tract of Bacon, written, as it seems, about the end of 1603, vol. i. p. 387.--He excepts to several matters of ceremony; the cap and surplice, the ring in marriage, the use of organs, the form of absolution, lay-baptism, etc.; and inveighs against the abuse of excommunication, against non-residence and pluralities, the oath _ex officio_, the sole exercise of ordination and jurisdiction by the bishop, conceiving that the dean and chapter should always assent, etc. And, in his predominant spirit of improvement, asks, "Why the civil state should be purged and restored by good and wholesome laws made every three or four years in parliament assembled, devising remedies as fast as time breedeth mischief; and contrariwise the ecclesiastical state should still continue upon the dregs of time, and receive no alteration now for these forty-five years or more?"

[488] _Id. ibid._

[489] Neal, 432; Winwood, ii. 36.

[490] See one of the _Somers Tracts_, vol. ii. p. 144, entitled "Advertisements of a Loyal Subject, drawn from the Observation of the People's Speeches." This appears to have been written before the meeting of parliament. The French ambassadors, Sully and La Boderie, thought most contemptibly of the king. Lingard, vol. ix. p. 107. His own courtiers, as their private letters show, disliked and derided him.

[491] King James's Works, p. 207.

[492] _Parl. Hist._ i. 967.

[493] Commons' Journals, i. 166.

[494] It appears that some of the more eager patriots were dissatisfied at the concession made by vacating Goodwin's seat, and said they had drawn on themselves the reproach of inconstancy and levity. "But the acclamation of the house was, that it was a testimony of our duty, and no levity." It was thought expedient, however, to save their honour, that Goodwin should send a letter to the speaker expressing his acquiescence. P. 168.

[495] Commons' Journals, 147, etc.; _Parl. Hist._ 997; Carte, iii. 730, who gives, on this occasion, a review of the earlier cases where the house had entered on matters of election. See also a rather curious letter of Cecil in Winwood's _Memorials_, ii. 18, where he artfully endeavours to treat the matter as of little importance.

[496] Commons' Journals, page 155, etc.; _Parl. Hist._ 1028; Carte, 734.

[497] 1 Jac. i. c. 13.

[498] By one of these canons, all persons affirming any of the thirty-nine articles to be erroneous are excommunicated _ipso facto_; consequently become incapable of being witnesses, of suing for their debts, etc. Neal, 428. But the courts of law disregarded these _ipso facto_ excommunications.

[499] _Somers Tracts_, ii. 14; Journals, 199, 235, 238; _Parl. Hist._ 1067. It is here said, that a bill restraining excommunications passed into a law, which does not appear to be true, though James himself had objected to their frequency. I cannot trace such a bill in the journals beyond the committee, nor is it in the statute-book. The fact is, that the king desired the house to confer on the subject with the convocation, which they justly deemed unprecedented, and derogatory to their privileges; but offered to confer with the bishops, as lords of parliament. Journals, 173.

[500] Bacon's Works, i. 624; Journals, 190, 215.

[501] Commons' Journals, 150, etc.

[502] Journals, 246.

[503] Journals, 230.

[504] _Parl. Hist._ 1030, from Petyt's _Jus Parliamentarium_, the earliest book, as far as I know, where this important document is preserved. The entry on the Journals, p. 243, contains only the first paragraph. Hume and Carte have been ignorant of it. It is just alluded to by Rapin.

It is remarked that the attendance of members in this session was more frequent than had ever been known, so that fresh seats were required. Journals, 141.

[505] "My faithful 3, such is now my misfortune, as I must be for this time secretary to the devil in answering your letters directed unto him. That the entering now into the matter of the subsidy should be deferred until the council's next meeting with me, I think no ways convenient, especially for three reasons. First, ye see it has bin already longest delayd of anything, and yet yee see the lower house are ever the longer the further from it; and (as in everything that concerns mee) delay of time does never turn them towards mee, but, by the contrary, every hour breedeth a new trick of contradiction amongst them, and every day produces new matter of sedition, so fertile are their brains in ever buttering forth venome. Next, the Parlt. is now so very near an end, as this matter can suffer no longer delay. And thirdly, if this be not granted unto before they receive my answer unto their petition, it needs never to be moved, for the will of man or angel cannot devise a pleasing answer to their proposition, except I should pull the crown not only from my own head, but also from the head of all those that shall succeed unto mee, and lay it down at their feet. And that freedom of uttering my thoughts, which no extremity, strait nor peril of my life could ever bereave mee of in time past, shall now remain with me, as long as the soul shall with the body. And as for the Reservations of the Bill of Tonnage and Poundage, yee of the Upper House must out of your Love and Discretion help it again or otherwise they will in this, as in all things else that concern mee, wrack both me and all my Posterity. Yee may impart this to little 10 and bigg Suffolk. And so Farewell from my Wildernesse, wch I had rather live in (as God shall judge mee) like an Hermite in this Forrest, then be a King over such a People as the pack of Puritans are that over-rules the lower house.

J. R."
MS. penes autorem.

I cannot tell who is addressed in this letter by the numeral 3; perhaps the Earl of Dunbar. By 10 we must doubtless understand Salisbury.

[506] _Parl. Hist. Journals_, 274, 278, etc. In a conference with the Lords on this bill, Mr. Hare, a member, spoke so warmly, as to give their lordships offence, and to incur some reprehension. "You would have thought," says Sir Thomas Hoby, in a manuscript letter in the Museum, Sloane MSS. 4161, "that Hare and Hyde represented two tribunes of the people." But the Commons resented this infringement on their privileges, and after voting that Mr. Hare did not err in his employment in the committee with the Lords, sent a message to inform the other house of their vote, and to request that they "would forbear hereafter any taxations and reprehensions in their conferences." Journals, 20th and 22nd Feb.

[507] Journals, 316.

An acute historical critic doubts whether James aimed at an union of legislatures, though suggested by Bacon. Laing's _Hist. of Scotland_, iii. 17. It is certain that his own speeches on the subject do not mention this; nor do I know that it was ever distinctly brought forward by the government; yet it is hard to see how the incorporation could have been complete without it. Bacon not only contemplates the formation of a single parliament, but the alterations necessary to give it effect (vol. i. p. 638), suggesting that the previous commission of lords of articles might be adopted for some, though not for all purposes. This of itself was a sufficient justification for the dilatoriness of the English parliament. Nor were the common lawyers who sat in the house much better pleased with Bacon's schemes for remodelling all our laws. See his speech (vol. i. p. 654) for naturalising the ante-nati. In this he asserts the kingdom not to be fully peopled; "the territories of France, Italy, Flanders, and some parts of Germany, do in equal space of ground bear and contain a far greater quantity of people, if they were mustered by the poll;" and even goes on to assert the population to have been more considerable under the heptarchy.

[508] It was held by twelve judges out of fourteen, in Calvin's case, that the post-nati, or Scots born after the king's accession, were natural subjects of the King of England. This is laid down, and irresistibly demonstrated, by Coke, then chief justice, with his abundant legal learning. _State Trials_, vol. ii. 559.

It may be observed, that the high-flying creed of prerogative mingled itself intimately with this question of naturalisation; which was much argued on the monarchical principle of personal allegiance to the sovereign, as opposed to the half-republican theory that lurked in the contrary proposition. "Allegiance," says Lord Bacon, "is of a greater extent and dimension than laws or kingdoms, and cannot consist by the laws merely, because it began before laws; it continueth after laws, and it is in vigour when laws are suspended and have not had their force." _Id._ 596. So Lord Coke: "Whatsoever is due by the law or constitution of man may be altered; but natural legiance or obedience of the subject to the sovereign cannot be altered; ergo, natural legiance or obedience to the sovereign is not due by the law or constitution of man."--652.

There are many doubtful positions scattered through the judgment in this famous case. Its surest basis is the long series of precedents, evincing that the natives of Jersey, Guernsey, Calais, and even Normandy and Guienne, while these countries appertained to the kings of England, though not in right of its crown, were never reputed aliens.

[509] The house had lately expelled Sir Christopher Pigott for reflecting on the Scots nation in a speech. Journals, 13th Feb. 1607.

[510] Commons' Journals, 366.

The journals are full of notes of these long discussions about the union in 1604, 1606, 1607, and even 1610. It is easy to perceive a jealousy that the prerogative by some means or other would be the gainer. The very change of name to Great Britain was objected to. One said, we cannot legislate for Great Britain. P. 186. Another, with more astonishing sagacity, feared that the king might succeed, by what the lawyers call _remitter_, to the prerogatives of the British kings before Julius Caesar, which would supersede Magna Charta. P. 185.

James took the title of King of Great Britain in the second year of his reign. Lord Bacon drew a well-written proclamation on that occasion. Bacon, i. 621; Rymer, xvi. 603. But it was, not long afterwards, abandoned.

[511] Commons' Journals, p. 370.

[512] P. 377.

[513] Commons' Journals, p. 384.

[514] James entertained the strange notion that the war with Spain ceased by his accession to the throne. By a proclamation dated 23rd June 1603, he permits his subjects to keep such ships as had been captured by them before the 24th April, but orders all taken since to be restored to the owners. Rymer, xvi. 516. He had been used to call the Dutch rebels, and was probably kept with difficulty by Cecil from displaying his partiality still more outrageously. Carte, iii. 714. All the council, except this minister, are said to have been favourable to peace. _Id._ 938.

[515] Winwood, vol. ii. 100, 152, etc.; Birch's _Negotiations of Edmondes_. If we may believe Sir Charles Cornwallis, our ambassador at Madrid, "England never lost such an opportunity of winning honour and wealth, as by relinquishing the war." The Spaniards were astonished how peace could have been obtained on such advantageous conditions. Winwood, p. 75.

[516] Bacon, i. 663; Journals, p. 341. Carte says, on the authority of the French ambassador's despatches, that the ministry secretly put forward this petition of the Commons in order to frighten the Spanish court into making compensation to the merchants, wherein they succeeded. iii. 766. This is rendered very improbable by Salisbury's behaviour. It was Carte's mistake to rely too much on the despatches he was permitted to read in the Depot des Affaires Etrangeres; as if an ambassador were not liable to be deceived by rumours in a country of which he has in general too little knowledge to correct them.

[517] There was a duty on wool, woolfells, and leather, called magna, or sometimes antiqua custuma, which is said in Dyer to have been by prescription, and by the barons in Bates's case to have been imposed by the king's prerogative. As this existed before the 25th Edward I., it is not very material whether it were so imposed, or granted by parliament. During the discussion, however, which took place in 1610, a record was discovered of 3 Edw. I. proving it to have been granted par tous les grauntz del realme, par la priere des comunes des marchants de tout Engleterre. Hale, 146. The prisage of wines, or duty of two tons from every vessel, is considerably more ancient; but how the Crown came by this right does not appear.

[518] Dyer, fol. 165. An argument of the great lawyer Plowden in this case of the queen's increasing the duty on cloths is in the British Museum, Hargrave MSS. 32, and seems, as far as the difficult handwriting permitted me to judge, adverse to the prerogative.

[519] This case I have had the good fortune to discover in one of Mr. Hargrave's MSS. in the Museum, 132, fol. 66. It is in the handwriting of Chief Justice Hyde (temp. Car. I.), who has written in the margin: "This is the report of a case in my lord Dyer's written original, but is not in the printed books." The reader will judge for himself why it was omitted, and why the entry of the former case breaks off so abruptly. "Philip and Mary granted to the town of Southampton that all malmsy wines should be landed at that port under penalty of paying treble custom. Some merchants of Venice having landed wines elsewhere, an information was brought against them in the exchequer (1 Eliz.), and argued several times in the presence of all the judges. Eight were of opinion against the letters patent, among whom Dyer and Catlin, chief justices, as well for the principal matter of restraint in the landing of malmsies at the will and pleasure of the merchants, for that it was against the laws, statutes, and customs of the realm (Magna Charta, c. 30; 9 E. 3; 14 E. 3; 25 E. 3, c. 2; 27 E. 3; 28 E. 3; 2 R. 2, c. 1, and others), as also in the assessment of treble custom, _which is merely against the law_; also the prohibition above said was held to be private, and not public. But Baron Lake _e contra_, and Browne J. _censuit deliberandum_. And after, at an after meeting the same Easter term at Serjeants' Inn, it was resolved as above. And after by parliament (5 Eliz.) the patent was confirmed and affirmed against aliens."

[520] Bacon, i. 521.

[521] Hale's _Treatise on the Customs_, part 3; in Hargrave's _Collection of Law Tracts_. See also the preface by Hargrave to Bates's case, in the _State Trials_, where this most important question is learnedly argued.

[522] He had previously published letters patent, setting a duty of six shillings and eight-pence a pound, in addition to two-pence already payable, on tobacco; intended no doubt to operate as a prohibition of a drug he so much hated. Rymer, xvi. 602.

[523] _State Trials_, ii. 371.

[524] Hale's _Treatise on the Customs_. These were perpetual, "to be for ever hereafter paid to the king and his successors, on pain of his displeasure." _State Trials_, 481.

[525] Journals, 295, 297.

[526] Mr. Hakewill's speech, though long, will repay the diligent reader's trouble, as being a very luminous and masterly statement of this great argument. _State Trials_, ii. 407. The extreme inferiority of Bacon, who sustained the cause of prerogative, must be apparent to every one. _Id._ 345. Sir John Davis makes somewhat a better defence; his argument is, that the king may lay an embargo on trade, so as to prevent it entirely, and consequently may annex conditions to it. _Id._ 399. But to this it was answered, that the king can only lay a temporary embargo, for the sake of some public good, not prohibit foreign trade altogether.

As to the king's prerogative of restraining foreign trade, see extracts from Hale's MS. Treatise de Jure Coronae, in Hargrave's Preface to _Collection of Law Tracts_, p. xxx. etc. It seems to have been chiefly as to exportation of corn.

[527] Aikin's _Memoirs of James I._ i. 350. This speech justly gave offence. "The 21st of this present (May 1610)," says a correspondent of Sir Ralph Winwood, "he made another speech to both the houses, but so little to their satisfaction that I hear it bred generally much discomfort to see our monarchical power and royal prerogative strained so high, and made so transcendent every way, that if the practice should follow the positions, we are not likely to leave to our successors that freedom we received from our forefathers; nor make account of anything we have, longer than they list that govern." Winwood, iii. 175. The traces of this discontent appear in short notes of the debate. Journals, p. 430.

[528] Journals, 431.

[529] _Somers Tracts_, vol. ii. 159; in the Journals much shorter.

[530] These canons were published in 1690 from a copy belonging to Bishop Overall, with Sancroft's imprimatur. The title-page runs in an odd expression: "Bishop Overall's Convocation-Book concerning the Government of God's Catholic Church and the Kingdoms of the whole World." The second canon is as follows: "If any man shall affirm that men at the first ran up and down in woods and fields, etc., until they were taught by experience the necessity of government; and that therefore they chose some among themselves to order and rule the rest, giving them power and authority so to do; and that consequently all civil power, jurisdiction, and authority, was first derived from the people and disordered multitude, or either is originally still in them, or else is deduced by their consent naturally from them, and is not God's ordinance, originally descending from him and depending upon him, he doth greatly err."--P. 3.

[531] Coke's 2nd Institute, 601; Collier, 688; _State Trials_, ii. 131. See too an angry letter of Bancroft, written about 1611 (Strype's _Life of Whitgift_, Append. 227), wherein he inveighs against the common lawyers and the parliament.

[532] Cowell's _Interpreter, or Law Dictionary_; edit. 1607. These passages are expunged in the later editions of this useful book. What the author says of the writ of prohibition, and the statutes of praemunire, under these words, was very invidious towards the common lawyers, treating such restraints upon the ecclesiastical jurisdiction as necessary in former ages, but now become useless since the annexation of the supremacy of the Crown.

[533] Commons' Journals, 339, and afterwards to 415. The authors of the _Parliamentary History_ say there is no further mention of the business after the conference, overlooking the most important circumstance, the king's proclamation suppressing the book, which yet is mentioned by Rapin and Carte, though the latter makes a false and disingenuous excuse for Cowell. Vol. iii. p. 798. Several passages concerning this affair occur in Winwood's _Memorials_, to which I refer the curious reader. Vol. iii. p. 125, 129, 131, 136, 137, 145.

[534] Winwood, iii. 123.

[535] _Somers Tracts_, ii. 162; _State Trials_, ii. 519.

[536] The court of the council of Wales was erected by statute 34 H. 8, c. 26, for that principality and its marches, with authority to determine such causes and matters as should be assigned to them by the king, "as heretofore hath been accustomed and used;" which implies a previous existence of some such jurisdiction. It was pretended, that the four counties of Hereford, Worcester, Gloucester, and Salop were included within their authority, as marches of Wales. This was controverted in the reign of James by the inhabitants of these counties, and on reference to the twelve judges, according to Lord Coke, it was resolved that they were ancient English shires, and not within the jurisdiction of the council of Wales; "and yet," he subjoins, "the commission was not after reformed in all points as it ought to have been." Fourth Inst. 242. An elaborate argument in defence of the jurisdiction may be found in Bacon, ii. 122. And there are many papers on this subject in Cotton MSS. Vitellius, C. i. The complaints of this enactment had begun in the time of Elizabeth. It was alleged that the four counties had been reduced from a very disorderly state to tranquillity by means of the council's jurisdiction. But, if this were true, it did not furnish a reason for continuing to exclude them from the general privileges of the common law, after the necessity had ceased. The king, however, was determined not to concede this point. Carte, iii. 794.

[537] Commons' Journals for 1610, _passim_; Lords' Journals, 7th May, _et post_; _Parl. Hist._ 1124, _et post_; Bacon, i. 676; Winwood, iii. 119, _et post_.

[538] It appears by a letter of the king, in Murden's _State Papers_, p. 813, that some indecent allusions to himself in the House of Commons had irritated him. "Wherein we have misbehaved ourselves, we know not, nor we can never yet learn; but sure we are, we may say with Bellarmin in his book, that in all the lower houses these seven years past, especially these two last sessions, Ego pungor, ego carpor. Our fame and actions have been tossed like tennis-balls among them, and all that spite and malice durst do to disgrace and inflame us hath been used. To be short, this lower house by their behaviour have perilled and annoyed our health, wounded our reputation, emboldened all ill-natured people, encroached upon many of our privileges, and plagued our people with their delays. It only resteth now, that you labour all you can to do that you think best to the repairing of our estate."

[539] "Your queen," says Lord Thos. Howard, in a letter, "did talk of her subjects' love and good affection, and in good truth she aimed well; our king talketh of his subjects' fear and subjection, and herein I think he doth well too, as long as it holdeth good." _Nugae Antiquae_, i. 395.

[540] The court of James I. was incomparably the most disgraceful scene of profligacy which this country has ever witnessed; equal to that of Charles II. in the laxity of female virtue, and without any sort of parallel in some other respects. Gross drunkenness is imputed even to some of the ladies who acted in the court pageants (_Nugae Antiquae_, i. 348), which Mr. Gifford, who seems absolutely enraptured with this age and its manners, might as well have remembered. _Life of Ben Jonson_, p. 231, etc. The king's prodigality is notorious.

[541] "It is atheism and blasphemy," he says in a speech made in the star-chamber, 1616, "to dispute what God can do; good Christians content themselves with his will revealed in his word; so it is presumption and high contempt in a subject to dispute what a king can do, or say that a king cannot do this or that." King James's works, p. 557.

It is probable that his familiar conversation was full of this rodomontade, disgusting and contemptible from so wretched a pedant, as well as offensive to the indignant ears of those who knew and valued their liberties. The story of Bishops Neile and Andrews is far too trite for repetition.

[542] Carte, iii. 747; Birch's _Life of P. Henry_, 405. Rochester, three days after, directed Sir Thomas Edmondes at Paris to commence a negotiation for a marriage between Prince Charles and the second daughter of the late King of France. But the ambassador had more sense of decency, and declined to enter on such an affair at that moment.

[543] Winwood, vol. ii.; Carte, iii. 749; Watson's _Hist. of Philip III._ Appendix. In some passages of this negotiation Cecil may appear not wholly to have deserved the character I have given him for adhering to Elizabeth's principles of policy. But he was placed in a difficult position, not feeling himself secure of the king's favour, which, notwithstanding his great previous services, that capricious prince, for the first year after his accession, rather sparingly afforded; as appears from the _Memoirs of Sully_, l. 14, and _Nugae. Antiquae_, i. 345. It may be said that Cecil was as little Spanish, just as Walpole was as little Hanoverian, as the partialities of their respective sovereigns would permit for their own reputation. It is hardly necessary to observe, that James and the kingdom were chiefly indebted to Cecil for the tranquillity that attended the accession of the former to the throne. I will take this opportunity of noticing that the learned and worthy compiler of the catalogue of the Lansdowne manuscripts in the Museum has thought fit not only to charge Sir Michael Hicks with venality, but to add: "It is certain that articles among these papers contribute to justify very strong suspicions, that neither of the secretary's masters [Lord Burleigh and Lord Salisbury] was altogether innocent on the score of corruption." _Lands. Cat._ vol. xci. p. 45. This is much too strong an accusation to be brought forward without more proof than appears. It is absurd to mention presents of fat bucks to men in power, as bribes; and rather more so to charge a man with being corrupted because an attempt is made to corrupt him, as the catalogue-maker has done in this place. I would not offend this respectable gentleman; but by referring to many of the Lansdowne manuscripts I am enabled to say that he has travelled frequently out of his province, and substituted his conjectures for an analysis or abstract of the document before him.

[544] A great part of Winwood's third volume relates to this business, which, as is well known, attracted a prodigious degree of attention throughout Europe. The question, as Winwood wrote to Salisbury, was "not of the succession of Cleves and Juliers, but whether the house of Austria and the church of Rome, both now on the wane, shall recover their lustre and greatness in these parts of Europe."--P. 378. James wished to have the right referred to his arbitration, and would have decided in favour of the Elector of Brandenburg, the chief protestant competitor.

[545] Winwood, vols. ii. and iii. _passim_. Birch, that accurate master of this part of English history, has done justice to Salisbury's character. _Negotiations of Edmondes_, p. 347. Miss Aikin, looking to his want of constitutional principle, is more unfavourable, and perhaps on the whole justly; but what statesman of that age was ready to admit the new creed of parliamentary control over the executive government? _Memoirs of James_, i. 395.

[546] "On Sunday, before the king's going to Newmarket (which was Sunday last was a se'nnight), my Lord Coke and all the judges of the common law were before his majesty to answer some complaints made by the civil lawyers for the general granting of prohibitions. I heard that the Lord Coke, amongst other offensive speech, should say to his majesty that his highness was defended by his laws. At which saying, with other speech then used by the Lord Coke, his majesty was very much offended, and told him he spoke foolishly, and said that he was not defended by his laws, but by God, and so gave the Lord Coke, in other words, a very sharp reprehension, both for that and other things; and withal told him that Sir Thomas Crompton (judge of the admiralty) was as good a man as Coke; my Lord Coke having then, by way of exception, used some speech against Sir Thomas Crompton. Had not my lord treasurer, most humbly on his knee, used many good words to pacify his majesty and to excuse that which had been spoken, it was thought his highness would have been much more offended. In the conclusion, his majesty, by the means of my lord treasurer, was well pacified, and gave a gracious countenance to all the other judges, and said he would maintain the common law." Lodge, iii. 364. The letter is dated 25th November 1608, which shows how early Coke had begun to give offence by his zeal for the law.

[547] 12 Reports. In his second Institute, p. 57, written a good deal later, he speaks in a very different manner of Bates's case, and declares the judgment of the court of exchequer to be contrary to law.

[548] 12 Reports. There were, however, several proclamations afterwards to forbid building within two miles of London, except on old foundations, and in that case only with brick or stone, under penalty of being proceeded against by the attorney-general in the star-chamber. Rymer, xvii. 107 (1618), 144 (1619), 607 (1624). London nevertheless increased rapidly, which was by means of licences to build; the prohibition being in this, as in many other cases enacted chiefly for the sake of the dispensations.

James made use of proclamations to infringe personal liberty in another respect. He disliked to see any country-gentleman come up to London, where, it must be confessed, if we trust to what those proclamations assert and the memoirs of the age confirm, neither their own behaviour, nor that of their wives and daughters, who took the worst means of repairing the ruin their extravagance had caused, redounded to their honour. The king's comparison of them to ships in a river and in the sea is well known. Still, in a constitutional point of view, we may be startled at proclamations commanding them to return to their country-houses and maintain hospitality, on pain of condign punishment. Rymer, xvi. 517 (1604); xvii. 417 (1622), 632 (1624).

I neglected, in the first chapter, the reference I had made to an important dictum of the judges in the reign of Mary, which is decisive as to the legal character of proclamations even in the midst of the Tudor period. "The king, it is said, may make a proclamation quoad terrorem populi, to put them in fear of his displeasure, but not to impose any fine, forefeiture, or imprisonment; for no proclamation can make a new law, but only confirm and ratify an ancient one." Dalison's Reports, 20.

[549] Winwood, iii. 193.

[550] Carte, iii. 805.

[551] The number of these was intended to be two hundred, but only ninety-three patents were sold in the first six years. Lingard, ix. 203, from _Somers Tracts_. In the first part of his reign he had availed himself of an old feudal resource, calling on all who held L40 a year in chivalry (whether of the crown or not, as it seems) to receive knighthood, or to pay a composition. Rymer, xvi. 530. The object of this was of course to raise money from those who thought the honour troublesome and expensive, but such as chose to appear could not be refused; and this accounts for his having made many hundred knights in the first year of his reign. Harris's _Life of James_, 69.

[552] MS. penes autorem.

[553] Carte, iv. 17.

[554] Wilson, in Kennet, ii. 696.

[555] This act (34 H. 8, c. 26) was repealed a few years afterwards. 21 J. 1, c. 10.

[556] Commons' Journals, 466, 472, 481, 486. Sir Henry Wotton at length muttered something in favour of the prerogative of laying impositions, as belonging to hereditary though not to elective princes. _Id._ 493. This silly argument is only worth notice, as a proof what erroneous notions of government were sometimes imbibed from an intercourse with foreign nations. Dudley Digges and Sandys answered him very properly.

[557] The judges having been called upon by the House of Lords to deliver their opinions on the subject of impositions, previous to the intended conference, requested, by the mouth of Chief Justice Coke, to be excused. This was probably a disappointment to Lord Chancellor Egerton, who had moved to consult them, and proceeded from Coke's dislike to him and to the court. It induced the house to decline the conference. Lords' Journals, 23rd May.

[558] Lords' Journals, May 31; Commons' Journals, 496, 498.

[559] Carte, iv. 23. Neville's memorial above mentioned was read in the house, May 14.

[560] Carte, iv. 19, 20; Bacon, i. 695; C. J. 462.

[561] C. J. 506; Carte, 23. This writer absurdly defends the prerogative of laying impositions on merchandise as part of the _law of nations_.

[562] It is said that, previously to taking this step, the king sent for the Commons, and tore all their bills before their faces in the banqueting-house at Whitehall. D'Israeli's _Character of James_, p. 158, on the authority of an unpublished letter.

[563] Carte; Wilson; Camden's _Annals of James I._ (in Kennet, ii. 643).

[564] Carte, iv. p. 56.

[565] 12 Reports, 119.

[566] _State Trials_, ii. 889.

[567] There had, however, been instances of it, as in Sir Walter Raleigh's case (Lodge, iii. 172, 173); and I have found proofs of it in the queen's reign; though I cannot at present quote my authority. In a former age, the judges had refused to give an extra-judicial answer to the king. Lingard, v. 382, from the year-book, Pasch. 1 H. 7, 15, Trin. 1.