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BISTORy 



OF THi: 



BRITISH EMPIRE, 

FBOM THE ACCESSION OF 

CHARLES I. TO THE RESTORATION ; 
WITH AN INTRODUCTION, 

T&ACIir& THE PaOORESS OF SOCIETY, AKD OF THE CONSTITUTION, FBOtf 
TH£ FEUDAL TIMES TO THE OPENING OF THE HISTOEY; 

AND INCLUDING A 

PARTICULAR EXAMINATION OF MR. HUME's STATEMENTS 

BBLATIVB TO TBS 
CHABACTEB OF THE ENGLISH GOYEBNMENT. 



BY GEQBX|i& MQl?il^:i .^SQ. 



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IN FOtm'VOLUMEff. ' 



VOL. I. 



EDINBURGH : 

PRINTED FOR BELL & BRA0FUTE, EDINBURGH i 

AND LONGMAN, HURST, REES^ ORMS, de 3R0WN, 

LONDON. 



1822. 



\^\Sv.. . 



[thenewyor , 

PUBLIC UB.UKY 

163G63 

A8T0R, LtNOX AND 
T1L0EN FOUNDATIONS. 

1899. 









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Friated by Ballbur and Churke^ 
Edinbui^h. 



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PREFACE. 



From the oelebrity of Mr. Hume's Work, it 
may be thought to have been equally pre- 
sumptuous and hopeless to enter the field 
which he i, supposed to have «, ftJIy p«. 
occupied. The portion of British History, 
however, embraced by the following volumes, 
is so important — ^the picture there presented 
so different from the one drawn by that ele- 
gant writer, that, if it shall be found to be 
sufficiently supported, by authority, I flatter 
myself that I shall be absolved from the 
charge of either presumption or rashness. 

For the task of an historian, Mr. Hume 
was, in many respects, most eminently quali- 
fied ; but, having embarked in his undertak- 
ing with a pre-disposition unfavourable to a 



ITHEI^EWYOW 

JPUBLIC LlBIiARY] 



ASTOfl, LENOX AND 
T<tOtN FOUNDATIONS. 

1899« 



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AriQted by Balftnir and Clarke, 
sdinburgh. 






PREFACE. 



From the oelebrity of Mr. Hume's Work, it 
may be thought to have been equally pre- 
sumptuous and hopeless to enter the field 
which he is supposed to have so fully pre- 
occupied. ■n.e%ion of BriUA HL!;,y. 
however, embraced by the following volumes, 
is so important — the picture there presented 
so different from the one drawn by that ele- 
gant writer, that, if it shall be found to be 
sufficiently supported, by authority, I flatter 
myself that I shall be absolved from the 
charge of either presumption or rashness. 

For the task of an historian, Mr. Hume 
was, in many respects, most eminently quali- 
fied ; but, having embarked in his undertak- 
ing with a pre-disposition unfavourable to a 



IV PREFACE. 

calm inquiry after truth, and being impatient 
of that unwearied research which,— .never sa- 
tisfied while any source of mformation re- 
mains unexplored, or probabiHty not duly 
weighed,-^Uiun,^ttiBgmdustrysiftsand 
collates authorities, he allowed his narrative 
to be directed by his predilections, and over- 
looked the materials from which it ought to 
have been constructed. Many documents of 
essentiirii consequence have^ since his time, 
enriched the public stock ; but it may appear, 
from the £:>lIowing pages, that he either did 
n^t avaa himself, or make the proper use, of 
those open to his inspection. From the short 
period, indeed, devoted by him to that por-* 
tion of British History, I conceive it to have 
been morally impossible for him to have be- 
come master of the necessary materials. 

The Work which I now submit to the 
Public has occupied my leisure hours for 
many years ; and though, to my regret, I per- 
ceive that in scmie respects^ particularly in 
certain expressions which had escaped me, it 
might still be improved, I trust that it will 
be foimd deficient neither in research nor ac- 



PBEFACE. 



curacy. Not oonteltited with merely glancing 
thiou^ or dipping inlo^ {he nu]neritiii& pnb^ 
Ucations refarri^d to^ I have, by a collation of 
the vanoiiB parts, e^deavosored to aaoertain 
the truth, The maiiuscrijits relative to my 
sulgecty-^iithether in the Advocates' Library 
at Edinbixrgh, the British Museum^ the Arch- 
bishop of Ganterbury^B Library, at Lambeth, 
(and here I must acknowledge my obligations 
to Mr. Todd for his kind attention,) or the 
BodleiaA Library, — I hive carisfully examin- 
ed. FroHi a manuscript copy of Bailiie's Let- 
tars shewn to me by nqr valuable friend, Dr, 
MCrie, I have, to illustrate my text, ex- 
tracted scno? passages which the Editors have 
omitted to publish. 

As it is impossible to und^r^tand eVenti^ 
without a thorough knowledge of all the cir- 
cumstances out of which they emerged ; and 
as Mr. Hume's view of the government, and 
of public opinion — on which is founded his 
defence of the unfortunate Charles I. and his 
minister Strafforde — appears to me altogether 
erroneous, I have devoted a whole volume to 
introduction) From the variety and import- 



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4 INTROD0CTIOK* 

ranks whom their habits taught them to tlei^ise 
Thus the revolution in manners daily acquired ac* 
celerated motion. 

The aristocracy were naturally both hated and 
dreaded by the monarch, as frustrating his ambi- 
tion and , controlling the regal authority ; but ba^ 
ronial power being likewise injurious and danger- 
ous to the peace and safety of the other independ- 
ent ranks, it was their interest to assist the Crown^ 
in reducing their common enemies under, subjec- 
tion to laws devised for the general good. Hence 
sprung the attachment of the people to the throne, 
and as it proceeded from a motive that must inva- 
riably actuate mankind, — ^the desire of security for 
4ei/ pe^o., and property-it fa strange. Jeed, 
that certain writers should have inferred from it 
that the people had imbibed the principles of pas- 
sive obedience. Attached as they were to mor 
narchy, they never comproioised the principles. of 
constitutional freedom, and the monarch himself 
appears to have been fully aware of the ground on 
which he was entitled to their support. Thus 
Henry HI. in order to gain the affections of th^ 
commons, when he was driven to extremities by 
the Barons, published a proclam9.tion, in which h§ 
assured the people of his readiness to protect them 
against the great Lords * ; and Bacon, ^ith a yiev^ 
to promote the popularity of Elizabeth's reign, 
makes it the boast of the English Government, that 

• Cotton's Short View of the long reign of Henry III. The pro* 
clamation is partly quoted. P. S7. 



INTRODUCTION. 5 

the lEUristocracy were brought under subjection to 
the Iaws» and no longer, as in ancient times, in a 
condition to t3rrannize over the rest of the com^ 
munity *i 

It is impossdble, owing to the scantmess of ma- 
terials, to determine precisely at what period the 
c6nmions were first permitted to have a voice in 
the government ; but they appear to have been 
summoned to Paiiiament even in the reign of 
King John, and early in that of his successor; the 
writs for their election, in the 49th of Hen- 
ry III. are extant t, and, from the reign of Ed- 
ward L they formed a distinct branch of the Le- 
gislature. Writei^ who have espoused the cause 

* Biich's Edition of Bacon's Works, Vol. II. p. 39 and 41. The 
paper from which this is extracted^ is entitled^ ^^ Observations on a 
Libel published this present year^ 1592.'' 

t Cottoni Posthum. p. 1 5. Prynne^ who thinks that the writs to the 
commons first b^an in 49th Henry III. says^ " The writs of Rot. 
Glaus. 15 Job. pars 2. M. 7. dorso. Patents 8* H. 3. pars 3. M. 4. 
Dors, et Claus. 38 H. 3. dors. 13 — which seem somewhat like a 
summons of knights to Parliament — ^being conceived by some^ upon 
good grounds^ not to be a direct summons of any commoners or 
knights of abiies to Parliament^ as members, but in another kind; 
whenas, we find writs of summons to Parliament directed to Bishops, 
the temporal Lords, and Barons, before 49 H. III. without any such 
writs for knights and burgesses." Preface to Cotton's Abridgment of 
the Records, That the knights of shires were not directly summondl 
as members before that time, is likely enough : for nothing springs up 
to perfection all at once ; and I conceive it most probable that the first 
attempts were not of a decisive nature. Still these were approaches 
to the measure. The reason assigned for summoning burgesses is 
-— '' Ut quod omnes tangit, ab omnibus approbetur." Brad, on 
Burghs, p. 33. T^e burgesses are said to have been summoned for 
the iirst time, the year after the knights were called* 



6 IHTRODIfenOK. 

cf |Nref(Ogiiiive-*'*ftf if they deemed it a (Rifficient 
rea&pQ for comigmng Hie people to siavafyf that 
they eua j^ead tha preeedeots of former timei»  
have laboured to establish, that, in an early age, 
th^ Loimr Howe wu held in little estimation, 
imd thflt it alavishly adopted the views ^f the 
Crown{ but im dssoover no ^aces of tins, either 
im <^6 journals of Parliament, and other rati^entie 
ftovfc^ or in tb» laws whidi the Lower House 
pass^d^ or jJIm taxes it impofied. It was indeed the 
i^t^rest of the Gommona to assist the Crown in 
i309trolliiig the greater aristocracy, since it was 
wily by mch a union of strength that they could 
faope to counterpoise the pernicious power of that 
body, and their councils acted under the direc- 
tion of this p^icy — policy so obvious, that the 
monarch used his influence to have the repre3en- 
tMivm of the pi^plf^ QOQutituted into a branch of 
the Legislature; but it is to their honour that, 
evQO in the worst tinges, they maintained the grand 
principles of constitutional Ireedom* Irregularis 
tiea Wi^De, no doubt, sometimes committed by the 
priqQS*— which are, in a great measure, to be as- 
i?ribed to the iptate of societyr-^^but the leading 
prineiqples of the government were never forgot- 
ten by the people, who freiq^uently compiled the 
qpi^n^ph tQ recognise thena, and to swew n^^ver to 
violaM^ them more. They were consulted in all 
afiMrs of peace and war— regarding the marriages 
of the pdoces-^tbQ domeirtic government, ice. and 
they even occasionally pursued measures which. 



iNTROMJcrrev. 7 

in mddem tim^s, ifould be held as an InvAMon of 
the prerogatiiws^^Thug, m the 15th of Ed'vmffd 
UL thej iimisted upon the nomination of the 
Chancellor, and other great public officers, being 
osoimitted to Parlisonent *• Iheir grants of money 
vnom, fin* ages, generdly con<ytio^, and they 
often concurred with the Lords in the appointment 
of treasurers^ for the expenditure of the money 
upm the business for which it was voted; while 
they, not rarely, inserted a clause into their money 
biQs, that the grant should not be drawn into a 
preced^t, and that it proceeded from the free and 

¥ohmtary gift of the Lords and Commons f . By 

* 

* Cotton's Abridgment of the Kecords^ p. 32. 

f Cotton's Abridgment The same author^ in bis work entitled, 
'' A Dii^eourse of Foreign War^ witb an Account of the Taxation9 
iipon liie Kingdom to ^e end of the Reign of Queen Elizabeth;," 
tdls us, *' That as well in this reign," (Richard the Second's,) ** as 
some of bis predecessors and successors, t}ie Parliament was so tender 
in granting subsidies and odier taxes^ that they added into their ac^ 
mMx2 non trahatur in conseque7iitafmr^''&iBX It should be no example for the 
future, appointmg peculiar treasurers of their own to give account upon 
dath to tbe next Parliament. And such grants, which they professed 
to proceed ex libera et spontanea volunt^te dominorum et comita- 
taum--dErom lihe "bee and voluntary grant of ibe Lords and respective 
counties, to be void if conditions on the King's part were not per^ 
fisrmed.*^ P. 19. See generally in prpof of the text, both this treii^ 
lise and Cottoni Posthum. 

The Hmited extent of the prerogative in regard to the Barons 
!tt enrly times— fbr instance^ th^ time oi Henry III^—- appear 
from aU authentic history. See Mat. Paris, Daniel, Sec, In f 
remonstranee to the King, an. 1349, the' Sarons use 'these words: 
'* Tali, scilicet, conditione quod iHa exactio, vel ali^ precedentes 
aiBplius non traherentur in consequentlam." Mat, Par, p. 51 9. 
The Short View of the Long Reign of H^nry III. by $ir Robert 
Cotton, is not altogether correct, as the author ascribes some acts 



8 INTRODUCTION. 

the 28th of Edwatd L c. Bih and IStfa, the Ck)m^ 
tiK^^, in the counties^' were empowered to elect 
their own sheriffin-a privilege which was, how- 
ever, withdrawn by the 5th of Edward III. c. 17* 
'How erroneous; therefore, is the esticaate taken 

l>y.the accomplished Mr. Hume^ of English lilierty 

..■,.. , • •• . 

to the Commons which were done by the Barone — ^but in otli» 
respects it is very faithful. This was first published in 1640— 
and has l^n transcribed into Somers' Tracts. On its publication, 
fiopie. deductions from it^ in relation to the cir^ujnstaBocs of the toneB^ 
were, attempted by some publisher, who, it would appear, had said that 
it liad been presieiited ^^to King James, of blessed memory ;" and the late 
Bditor has questioned its authentidty-^as a hock of such a kind 
qould not be presented to a monarch so attached to his prerogRtiY& 
But this fact, of its having been presented to James, does not ap* 
pear from the edition of 1642, which I have met with,* published along 
with Hayward's Henry IV.; and it is unfortunate that this very 
ingenious gentleman had not seen some copy of the oiiginal 
publication, before he hazarded that opinion. None of the refe^ 
rences are given in the copy inserted into the tracts; but these 
are so numerous, and display such erudition, as to leave no doubt 
on my mind of its authenticity. It required the learning of Cotton 
to compose it, and is quite in his style, while it contains the very 
errors which pervade his other works. Indeed it is inconceivable that 
any politician of the year 1642 could have devoted himself to a history 
so dry — ^by way of parallel— to the passing events. As for the libe- 
rality of ^e sentiments, they are such as Cotton uttered elsewhere— 
and they do not exceed, but rather fall short of, those of Daniel in 
his history, who yet held a place at Court in the reign of James the 
First, being groom of the privy chamber to the Queen. In the 
year 1626, Charles threatened to take Cotton's books from him — 
because he was accused of imjparting ancient precedents to the Lower 
House. Brit. Mus. Ays. 4161, Vol. 2d of a Collection of Letters. 
Letter, dated 28th August 1626. This threat was afterwards put 
in execution, and the circumstance was allied to have broken that 
great antiquary's heart. Same Col. No. 53. Letter dated 12th May, 
1631. There is an old manuscript copy of Cotton's fii^ry in the 
British Museum. Harl. 2245. 



INTRODUCTIO!*. 9 

in fofmer times ! He inculcates the notion that the 
EngUsh enjoyed no more freedom than the inhabi- 
tants of France and other continental states ; and 
that they were not themselves sensible of any su^ 
perior privileges. But, had he investigated ther 
matter more deeply, he would have discovered ^ 
miarked distinction in the respective goveminents, 
as well as that it was acknowledged in the strong-^ 
est terms by foreigners, and AiUy appreciated by 
the people themselves. Sir John Hay ward, a writ* 
er of Elizabeth's reigUj in treating of the illegal 
and oppressive government of Bicbard II. says, 
^ All men were well acquainted with what tributes 
and taxations the Frenchmen were charged, hav- 
ing in every country lieutenants and treasurers 
assigned-^the one to draw the blood, the other the 
substance, of the slavish subjects. * " Sir John 
Fortescue, who presided for many years as - Chief 
Justice, and was afterwards nominated chancellor 
to Henry VI. in his celebrated book, De Laudibus 
kgimJngUee, and in his other work, which is com- 
posed in English, commonly entitled. The Dif- 
ference between Absolute and Limited Monar- 
chy, thotigh by himself styled The Difference be- 
tween Dominium Regale^ et Domnium Politicum 
et Regale if describes the constitution and pri- 
vileges of England in terms which must elicit 
the approbation of the most liberal in our own 
times, while he depicts the despotism and mi- 

* Life and reign of Henry IV. p. 250. 

t This 18 the title whidi the Treatise bears in the MS. in the 
British Museum and in the Archbishop's Library at Lambeth. 



10 INTROmiCTtOH* 

sery of France^ of which he was an eyo^^witQeai^ 
having retired thither with the wife mid son of 
the unfortunate Henry, in cdlours that inqnie 
us with horror. Accordii^ to hit deseription, 
the English lived under the protection of laws 
enacted by themselves; in Franoe, the '^ prinoi* 
pie of the civil code prevaUedf<-^-*that the will 
of the monarch is law : die EngUsdi paid taxes of 
their own imposing ; the French^ with die excep* 
tion of the nobility» to whom die king granted an 
immunity frc»n taxation, lest he should drive them 
into rebellion^ were plundered at the discretion of 
their prince: the ^iglisbf upon any charge of 
crime^ had the benefit of a trial by a jury of their 
peers :«^n France, confession was extorted by the 
rack '< a custom,'' remarks the author, '< which is 
not to be accounted law, but rather the high road 
to the devil«" In England, there was an indepeir 
dent middle class of society ;-^n France, all was 
noblesse or wretched peasantry. In England, the 
people lived in security and in comfortable circumr 
stances : in France, they were in the most de«- 
plorable misery ( for every ramification ofgovent- 
ment was corrupt ; those who began to accumulate 
a little capital were directly plundered by the mo^ 
n«rcb# of the first reward of their industry ; this 
despotic system required the support of an army, 
and these, all foreigners^ were sent to live at free 
quartera on the inhabitants, whom they pillaged 
and abused without mercy, only shifting their quar- 
ters when they had completely exhausted the sub- 
stance of their boptst Somewhat of Fortescue-s 



iKVlOAUCflOH. 11 

deseHption might be ascribed to the pwtudlty of 
aa Engltsbmai^ were not im testimony ftolly con- 
firmed by the evidence of a contemporary iVenoh 
author, I%ilip de Commines^ who paints the des- 
potiam of France, and the wretchedness of the peo- 
ple, in equally glowing colours, heightening the 
picture in regard to the soldiery, for their brutal 
licentiousness towards the wives and daughters of 
their hosts, while he declares England to be the 
best governed country he had ever known *. 

Thus it appears, from incontestible evidence, 
that Englanci^ at an early period, was distinguisii* 
ed for her freedom, and the ccHnparative happiness 
of her people : But every thing is comparative, 
and, in speaking of the people, we ought never to 
overlook the number who are included under the 
appellation : as, in ancient times, the slaves, tar 
more numerous than their masters, were ranked 
amongst things, so, infinitely the greater part of 
the former inhabitants of England neither enjoyed 
the privileges, nor were included under the name 
of the peofjie. The population of the towns bore 
a limited proportion to that of the country ; and 
though England was happy beyond her neighbours 
in a class of smaller proprietors, copy-holders, and 
lease-holders, the bulk of the inhabitants directly 

very striUog .» ]^Qm% «f mw, tbftt I bftve t(»»8cribed some piimg^f^ 
Vid iliroifn thcsn u^to tfaue fonn of a notQ «t tbe end of th? Toluaiff^ 
They will be found very oppoiitc^ to thed^acnption of Sngliidi lib^y 
given \y Mr. Huiaiey 9»d a» I ign afrijd I liave fcar^y done juMm 
to them in the teo^ta I earn^edy rf (mm^d th(Bni tp 4^ i w^ei^'fl ffi* 
rusaL Note (A.) 



IS INTRODQCTIiON. 

ifepetlded on the .ai!i8tocracy« Yet these depeii' 
dents were far happier than the French peasantry ; 
for they were the soldiery of the kingdom^ and, he- 
sides that they were necessarily imbued with some- 
what of the pride and spirit of men in arms— and it 
wsMs the interest, of their superior to. preserve ;them 
in a certain degree of comfort-^they had oppres- 
sion to apprehend from one quarter only, while 
the French were neither entrusted with arms, and, 
consequently, neglected by the propriety, ncM: 
protected against the brutal licentiousness and ra- 
pacity of foreign military ♦. 

The revolution in manners which the towns had 
been gradually introducing, was rapidly advanced 
by the bloody wars between the houses of York 
and Lancaster. From that contest, which wa^ 
merely a struggle for superiority between opposite 
factions of the aristocracy, the people, who were 
jealous of the nobility and gentry, stood aloof, pro- 
bably not displeased to observe the factions mutu- 
ally wasting their strength ; and, as they did not 
engage in the quarrel, they were exempt from the 
calamities of the war, which fell wholly upon the 
aristocracy and the men in arms, but particularly 
the first. There were no burnings, plunderings, 
nor devastations ; the common affairs of the king- 

* Harrison^ who published in 1577^ tells us^ that there are no 
filftves in England; that the instant one sets his foot on English 
ground he is free as his master ; and that every par^cular man is 
supposed to be present in parliament^ either by himself or his attor- 
ney : — ^yet says, that the fourth class in the community, including 
copy-holders, &c. " have neither voice nor authcwity in the common- 
wealth, but are to be ruled and not to rule." P. 163, 173. 



mTAODtTCTrOlfr. IS 

dom proceeded as in a profound peace. But the 
aristocracy suffered dreadfully : many noble fanii*- 
lies became extinct, and none altogether avoided 
the consequences incident to such a struggle, while 
newsmen necessarily rose on their ruins or misfor- 
tunes. The practice of the contending parties, 
particularly of Edward IV. till his victory over 
Warwick at Bamet, where there was an indiscri- 
minate slaughter, was to , call out to spare the 
soldiers, but to slay the nobles and gentry — 
and few of them escaped*. The safety of 
each party, as it prevailed, demanded rigorous 
measures for the depression of its adversaries'' 
power ; and the vanquished would, to remove sus- 
picion, rather plunge into expense than cultivate 
the means of recruiting their strength. Henry 
VII. owed his elevation to the smaller faction ; 
and the York party, who were hostile to his ad- 
vancement, being by far the most numerous, were 
eager to dethrone him, in order to recover the in* 
fluence and property of which bis rise had depriv- 
ed them. His followers, on the other hand, whom 
the exaltation of their chief had restored to their 
properties, or whose sufferings and devotion to the 
house of Lancaster it had recompensed out of for- 
feitures from their enemies— had one common in- 



* C0i]iinine8^ a co-temporary^ I. iii. c. 4^ S, 6, 7. See also 1. v. 
e. 18. Edit. 1634^ a Rouen^ p. 471. Stow^ in detailing the battle of 
Northampton^ 38^ H. 6, eay^, *^ The tenth day of July^ at two of the 
docke^ aftemoone^ the Earles of Marche and Warwecke let cry^ 
liiorow the fields that no man should lay hand upon the king^ ne on 
the common people^ but on the lords^ knights^ and esipiires." P.40l^v 



14 IKTBfWVCTKm. 

ttfest with their loader : While^ iA consequeoei 
of the repeated insutrectionii he Could ccmfiriii 
their fidelity by fresh grants from tiew forfetturM^ 
Henry was too politic a prince to act without tibe 
intervention Of th^ legislature i but the posture of 
affidrs enabled him to procure parliaments com* 
posed of his adherently who were conle^uefttly 
ready to promote his views, as they accorded witJi 
their own. In the first flush of siicoess, when 
their enemies were dejected, the Ijancastrian fac* 
tion were not likely to be greatly <^po$ed in elec* 
tions for parliament ; and Henry exerted the in-* 
fluence of the Crown in favour of his own parti^ 
zans*. From the attainders and deaths of' the 
temporal peers^ their number was dimini^edi and 
those attached to the York party would be intimi-^ 
dated from opposition, while the successful faction 
knew it ta be their interest to improve their ad« 
vantage. The spiritual peers^ at that time« form* 
ed a large proportion of the upper House, and 
were inclined to support the government, in order 
to obtain the favour of the monarclr, who even 
employed them chiefly in secular afl&irS| and con-* 

* Grafton^ speaking of the second Parliament summoned by Hen^* 
ry^ flay»«— ^' He dietefore summoned againe hys great court of pnr-t 
linaent, whereto he woulde that there dioulde bee elected the mxMtt 
prudent and grauous persons of euery countie^ citie^ port^ and bo« 
rough ; and in especiall such as he in al his daungers^ calamities, mi- 
Boriesy tod tumulteoua affiiires, used, trusted, and fauoured, as partak- 
to, oouBcelers, and oompanicnul, both of hia wo and aduerdtie, and 
also of his triumph and glorious vktory, whose mindes and studiM ^ 
he perfitly knewe to bee fixed and aet in the politique regiment and 
prudent £;<memaunce of the publique welth of his reahne and 
nioft." P.Sdr. 



Hived $1 tlBAcBl uturpatioa *« The indflectudl at« 
tempts of iim Yorkists to dethrone Heniy^ taij^ht 
his adfaerdnts the necetisity of Btreogthening the 
foysl power, Ibr the common bendit of the paity^ 
sod of feeiisiiig the critical moment for weakening 
the aristocracy, from whom they piincipaUy ap 
prehended danger* 

The king and the parliament having thus the 
same interest^ calculated their measures for de** 
pressing the aristocracy as the grand objects <^ 
fear* Tlie old laws against armed retainers wetie 
strengthened by additionad enactments ; and m it 
was by tlie number of their retainers that the 
Torkiets could hope to iiegain the ascendancy, the 
{HTOvisions of the legislature were rigorousdy en« 
forced. But the (ordinary courts were unable to 
cany the laws into effect against powerful famU 
liesy who either influenced or overawed juries-*- 
amongst w^om» at this time, , from the pteponder** 
aiice of the Yorkists in number, they must have 
bad unusual favour--*^nd not unfrequently intimi- 
dated the judges themselves* The very beiqg of 
the triumphant party, however, required the exe- 
cution of the statutes against armed retainer^; 
and therefwe a new court*^that of the Star Gharn^ 
ber-*--was created t, for the trial of offences against 
those statutes-^according to an arbitrary course, 
alien to the equitable jurisprudence of England^ 

* See Bacon's Hist, in regard to Henry's employment of Church- 
men. P. 589 of White Ken. Col. Vol. I. This Monarch first in-r 
sfitctted yeomen of the guard. ffaUe, foL lit. 

t In ^t next Chapter I tarost ttm point will be found fHroved. 



16 nrrRODUcTioK. 

During this reign, its powers were limitefd ; but 
they were greatly extended in the next ; yet, as 
that court reached potent families/who, from their 
influence over juries, were above the c(Hitroul ox 
ordinary jurisdiction, it does not appear to have 
been displeasing to the people. But it exceeding- 
ly invigorated the prerogative ; and from its ser- 
vices in that respect, its powers were surbitrarily 
enlarged, after the pretext for such an irregular 
institution had ceased, till it threatened to absorb 
all other jurisdiction, and was abolished as a nui- 
sance intolerable to every rank. 

During the reign of Edward L, the aristo- 
cracy, then very powerful, had, in order to pre- 
serve the greatness of their families, procured a 
statute, commonly called De Donis, to autho- 
rize entails ; and, though the people complained 
of its impolicy, the nobility would not consent to 
its repeal. The clergy, whose ambition of ac- 
quiring lands stimulated them to many ingenious 
arts, or finesses, for defeating the laws, had de- 
vised one, called a common recaoery^ for evad- 
ing this ; and courts of law had, so early as the 
rfeign of Edward III., thrown out hints of its 
validity. But it was only in the time of Edward IV. 
that what is denominated a common recovery was 
decided to be a legal conveyance which removed 
an entail \ and it must be confessed that the season 
was most fit for such a judgment. Edward was 
no less anxious to punish his adversaries, than to 
reward his hungry followers j and it is unnecies- 
sary to add, that his partisans participated in Iits 



jnthobuctiok* 17 

iedings; but, a« the law of entail often saved 
estates from forfeiture, bis judges removed the ob« 
staclet hy deciding that a camrnqn recovery was a 
valid conveyance-— a decision which, while it proe 
^moted the .views of their roaster and his faction, gra- 
tified the people, especially the active and intelli- 
gent, who had industriously accumulated the mean^ 
f^ pucchasei, ai^d w^ doubtless not displeasing to 
inany oid families themselves, who laboured under 
a load of debt, and were debarred from sales;. 
This decision, by defeating the statute de dams, 
:yirtually repealed it i and the legislature, in the 
^eign of Henry VIL, which was qs much under 
the dominion of feelings ffsivojurable to such policy 
as the partisans of Edward bad been, though it did 
not abrogate the statute, indirectly authorised the 
finesse which rendered it nugatory. The device 
became a comnion conveyance; and, that there 
might be no pretpxt for impugning it, receiyed, 
indirectly, additional confirmation by Parliaipent, 
both in tiie next reigp, ^nd in that of Elizabeth*. 
The law ii^ regard to fines upon alienation, was 
not only hostile to transferences pf land, but b^id 
been productive pf great insecurity to purchasers, 
and a statute was devised as a remedy for the 
evilt ; but it is alleged tb^t IJenry had farther a 
covert intention of defeating entails, hy fines ; 
and such a construction was put upon the star 
tute by 32 Henry \IIL c. SQ. " which," to usf 

* Blackst voL iu p. 115^ e/ teq^ 
t Coke's 2d Inst. p. 518. 

\0U J. (r 



J8 fNTRODUCTIOX. 

Blackston^'s trords, " declares a jSrte duly levied 
by tenant in taR to be a complete bar to him and 
Ills heirs, and all other persons daiming under such 
entail •/' Restrictions on tiie transference of 
land being thus removed, great tracts, Which were 
entailed on old iamiliesy passed into othef hands*^ 
carrjring the influence from the old ptoprietwsi 
and confening a different kind upon the new, who 
vrete not in a condition to aspire at baronid 
power. 

The great aristocracy thus weakened, and pre- 
cluded their former field of ambition by the severi- 
ty of the laws against armed retainers, gratified 
their desire of distinction daily more and more, by 
indulging in expensive habits of luxury. The 
kingfs conduct, in another respect, must have con- 
tributed to these habits, while it straitened many 
in the means. Under the colour of the penal laws, 
he wrung large sums from the subject, to gratify 
his mean, yet predominant, passion of tivarice f ; 
and, as he was too politic a prince to provoke his 
adherents by extortions from them, the Yorkists 
would naturally endeavour to avert the evil, by re- 
moving any cause of fear in the monarch, which 
could be best accomplished by habits of expense^ 
incompatible with the idea^ of mustering strength 
to overturn the government. To increase their 
revenue, the aristocracy were obliged not only to 
diminish, in an unprecedented manner, the number 

* VoL ii. p. lir. t See Bac. Hisf. 



INTRODUCTION.' 19 

of th^r idfe jfbllowers ; but to pursue, on a ffiii*^ 
more extensive scale thim formerly, a «yi»tem, whieh 
had been long creeping in, of dismissing a nu* 
merous petty tenantry^ wl^o contributed much to 
the pomet, but littie to die profit <^ttepn^ietor$' 
and of letting their lands in Ikrge tracts to indivi^ 
4ualst who undertook to pay considierable rents. 
Tfaodgh this system was Necessarily mtu^ '^ncou*^ 
raged hy the policy of Henry and his faction, it 
was opposed by them, — a statute for keeping up 
£urm<-house8, m conformity with previously exist* 
ing laws against depopulation, having been passed 
during this reign * ; but nothing could n^ore efficas- 

* It %pptasB, As well from the Scatttte Book^ see 4 H. 4 cap^ 1% as from 
die dedamatioii of John Rovn^ the antiquary of Warwiek^ who die^ ai 
|n adTKDced^e in 149}^ tiiat the system of paatoiaga a^ 
bnii going «ai to a consiclsniUe tkae. i.RokdMut. pw^te^^-^H, lSS*«a 
M, 114^lS7. This author p^iiita ihe evil in the atengtet eoloHva, 
dwells upon the inhumanity of expelling the inhabitants ftwh their 
posse miinai, and praphedes gel^eral desolation ; while he denouieel 
eternal damnation npoh ^ depcfvlatDnk Hi» tcabonSn^ has som^ 
plaufflhility i— '^ Isli Til^nitit et e^ojManim parMhtaliitm dinrtoM^ 
deo o&ndmit, homilies ratiomdes a ^illia cjidentes et bastias pro 
aia itrationalos siduoentes. Ecdesiie ^ei oflSsndunt^ ecdesiaa deo d» 
diortas dMtni<ntefl> dedmlui antf^uaa miliuentes, et sidius ahlationoi 
lamfhiiantes, Re^am crifdtiidiiiem liedunt^ eo quod ubi priua hotni4 
tteB> ad Iregis et tegtd d^Dsionem eorpore robustos et fortitodine ha-^ 
Woa hahele solebat^ modo tantnm Imita animalia remanent Pattd* 
Hfett elittn iMto vant modo u1^ h«e pestis r^nat vifle^ et ex cotuie^ 
j^inenti pa^eioi^ hrnnines^ et nuUie alie yills per hoe (^rescunt^ sedpo^ 
tins^ Uediftiftur^ quia in aSoci^tioiie per r^iam miserieordfam taxatieC, 
! num domini villarum dirutarum de ipsa idlocatione pro carentia te»- 

nentium magnam partem ejusdem ^ocationls eismet appropriant^ et 
lotam onnaauper villaa non dirutas apponunt. Oitendunt etiam civlta- 
tibus et yillis mercatis multiplidter^ turn qniacausant caristiam : NaKi 
ld)i defidunt colonic defidunt etiam grana^ et per viUarttm destrao^ 
tionem, multi paudores sunt colonic e$ sotttn cultoraredadtulrin iber* 



20 INTRdDUCTION/ 

ciously isweep from the apstocracy the prospect of 
recovering their influence in the compdunity^ 

bagioni. Sequitur eigo necessario ex hoc major parcitas granonun^ et 
ex consequenti oritur et augetur caristia^ et mtOtimode minoratur ha- 
buBduntia qna dvitates bmge et yiXim nfcercate pn»per|Eb«iitiir ; tmn 
^uia, villis dirutis, est minor populi aflluentia TenientU ad nimdinas 
et mercatus^ et per hoc minuitur emptio et vendition unde mercatbrea 
ceterique mechanici depauperantur, quorum depauperatio minatur 
ruinam dvitatum, burgorum et villanmi^ ubi miyorpopuUQOiiflQfliitia 
ad^se solebat^ et si coutiuuaretur^ te^ totius de&oUttiDnem procura- 
ret^ quod absit." P. 4.0 — 1. 

The aristocracy, while they pursued this system, were a&aid 6f los- 
kig the population, and therefore got laws* to xiestraiii the' poorer 
country people from going to trades* Such is the selfishness of man. 
But it is not singular. It is well known upon what principle the emi- 
gration from the Highlands of Scotland was so keenly opposed. See 
Selkirk on that subject. — Dr. Henry's observations upon the depopu- 
lating system of England are notable enough. Vol. x. b. y. ch. 5, § i. 
He conceive that there must have been an immense loss of liyes by the 
wars in France, and afterwards by the civil wars : thfft proprieton 
oould not easily procure hands to labour their grounds;, imd therefore 
banished the inhabitants, and substituted brutes for men ! The' loss 
in the French wars must have been soon supplied ; and though his- 
torians have mentioned great losses in the dvil wars, if we may credit 
Commines, the loss of lives> except amongst the nobility and gentry, 
was not great But a loss of this kind is never felt 

The aristocracy lost their villains or slaves by the change of 
manners, as they fled to the towns, and were enfrandused. Thia 
galled that body exceedingly ; and in the 1st R« ii. it was oampkined 
of that villains would join the king's enemies to be revenged of their 
lords, and had subscribed large sums for mutual support In s, few 
years afterwards, the nobility pomplfuned that their villains fled from 
them to towns, where the burgesses, under colour of their firanchisesi^ 
detained them ; and that the jrest behaved so insolently, that their 
masteni were afraid to exercise their authority for fear of losing them* 
See Sden's Hist of the Poor, vol. i, p. 30^ 

« $t. It. R. :;, 7 H. 4, c 17; seealao 2 H. ^, c, 4; 4. H. 5, g. 4; 8 H. 

IL c 18; 32 H. 6, c 12 ; by 8 H. 6. c. 9. the custom of London about ap- 
.pventlees is oonfinned in spite of 7 H. 4 ; and a dispensation is gnmted to the 
.dty Of Norwich by 12 H. 7, c. 1. 



mTRODUCTION* Si 

The faction that raised Hefiry, insisted, for their 
own secutity» upon his marriage with Elizabeth, 
the eldest daughter of Edward IV. whose, title to 
the crown by descent wis allowed to be best found* 
ed. The marriage was humiliating to him, as it 
implied the defectiveness of his own title, and con« 
sequently made him a king by courtesy rather thaa 
by right ; but, as it united the opposite pretensions 
to the throne in the periion (^ his son, it had the e& 
feet of closing the contest. Though, however, the 
cause of dissension was thus withdrawn, 'so fierce^ 
BO bioody, ahd so protracted a contest must have 
left bitter animosities behind, which, while thej 
weakened the ai^stocracy in regard to the. crown^ 
as the monarch could have opposed one faction to 
the . other,' nedessarily : promoted die change in 
manners. Both parties courted the monarch, anid 
Henry VIII» rendered hiinself popular with both» 
by an equal dispensation of his favours. He, at 
•the same time, set an example of a different course 
of life, .by his taste for learning, and profuse expeup 
4iture on elegancies and luxuries ; and, from the 
anxiety of each faction to gain the royal favour, 
as well as from the commanding influence which 
he derived from his personal qualities in such an 
age, he could not fail to lead the fashion. 

The young king possessed far more learning 
than generally falls to the share of princes, a cir- 
cumstance which has been variously accounted for, 
— ^from the intention of his father during the life of 
prince Arthur, the eldest son, to qualify Henry for 



2S ijrraoDucTiON. 

the A*ch(W3hopric of Ctoterbwy* (though, as 
Arthur died bef<H*e Hmvy hud cqmplfft^d hift 
twelfth yewi the studies of th« latter qoiiild not 
have proceedied far with that view, a»d Arthur is 
said to liave been equalljr leajrued t)^-^and fr^^tn the 
jealousy that tbe fathei* ente^aii^ed ot' hjs sons' $u^ 
perior titte to the throne, wh^ch made hii& anxious 
to employ their miada in studyt th^ th^ey mi^t 
he divertad i from thougbta of government ; but 
sk oqght most, probably .to be ^r^^tly «ttribut^d to 
the good sense of Henry VIL . who, thoilgb pcor 
nounoed illiteraike by Burnet, appeais^to have made 
no dei^icable progress in literature t* The era at 
pbich' the young king mounted the throne was a 
most important one ; for the human mind^ awak^ii- 
ed from a slumber of centuries^ enteiied < u|»ni the 
Btudy of polite literature with the ardour ofyouid!^ 
4Uid the art of printings then brought to some fei£ac- 
tton, had the efifect of communieating a sim^fehaneQiis 
impulse throughout Europe. His kn^wie^e m^ur- 
-ed veneration, and his patronage oftleamed^meni ob- 
tained for him the zealous voice of a body that be- 



* Herbert in White Ken. Col. p. 1. 

T Burnet's Hist, of Refbrmation, vol. i. p. 18. 

X At this time the aristocrftcy weie utteilj lUitemte. ^ee U0ii^*» 
Hist. Vd. XII. B. 6. C. 4. § 1. But the nuxit «onmcing. proof is^ 
that so late as Edward VI's. reign^ a statute was passed to extend the 
benefit of clergy on conviction of crimes^ to peer8> though they could 
neither write nor read* Now Heioy VII. kept a jouvhtf with his Mtn 
hand^ was intimately acquainted With Fi^neh, and iind^nito9d La- 
tin — a great deal for the age in which he lived — ^the atandard by 
\fYnch his pretensions ought unquestionably to be tried. See Bae. 
p. 637. 



gan to be 6ver3nirhereres|iectedy and ta possess con- 
siderable influence over public opinion. Though 
iaccofx^lishedf Henry was no pedant* His nian- 
ners were frank and perfectly in unison with the 
gaiiids ^ the age. He wa9 skiU'i^l in muMc» and 
exodiled in aH the manly exercises to which in that 
age the higher classes were devoted. The effect 
<£ thete qualities was heightened fay the advan- 
iaj;e of a good exterior: His ruddy complexion 
and pordy figure were particularly calculated to 
make an impredsion oa tibe iair sex as well as the 
nmltitHde^. The very first measures of his go- 
vernment heightened all these advantages. He 
withdrew the royal proteeticm from Empscfeo and 
TkiSeyt twc^ of his fathw^ii legal engines of oppres- 
sion, who suflered the punishment due to all who 
are inatrumental in promoting tyranny under the 
form dT law. He restored part of his father*s ilf- 
acquired property, and profusely squandered the 
fiioids wUeb had been so induatnousLy iifoarded f« 

• Heitort^ p. 1. et seq, HnUe, first year of Henry VIII. Hoi. 
TW, et seq, 

1" HaHe^ first year of Henry^s reign. Hoi. 799, ei seq. Herbert, 
p. 1. et seq, 

' Empson's defence before the council, previous to bis commitment to 
llie Tower, is remarkably good. It appears to me to be superior to 
the fiff-finned peroration of Strafford. But he fell a sacrifice to the 
a ri st ocracy, and with the king^s consent ; and he is reported to have 
been the son of a sieve-maker ; therefore his eloquence passes unheed- 
ed. I cannot forbear transcribing it : *^I have remarked," says he, '* two 
csoaea in gaieral that move attention ; one is the greatness, the other is 
the strangeness and novelty of argument. Bodi these concur so mani* 
festly in the afildrs now questioned, that I will not mu«h implore your 
patience. Though, on the other side, considering my violent persecu- 



24 tNTRODUCTIOff • 

Such a character was quite calculated to lead the 
fashion in a new course of life for which so many 
other circumstances had prepared the highest 

tioD, I cannot but think it a fkrcf&r that I may a^edc tcft myaelf ; ImC 
alas ! to wlunn } The king, ^y fiiaata*^ to whom I aheuld appeal, as 
to my supreme judge and protector^ abandons me to my enemies 
without other cause than that I obeyed his father's conunands^ anil 
upheld the regal authority. The pe^ple^ eii whose equal trial I diould 
put my ]ff€^ s^k ray .destruction, ^ only because I endeavou^ to exe- 
cute those laws whereof themselves were authors. What would have 
^happened to me if I had disobeyed my king^ or broke my country's 
' laws ? Surely, if I hxve any ways trataigressed, it is- in precunng that 
these p^nal stat|itea might be. observed whUh yoursdtes in <ipen 
Parliament decreed^ and to which you then submitted, both your 
pefsons, estates, and posterity : and if this be a crime, why do you 
not first repeal ydur proper acts? Ot if, which is truth, they stand 
still infull force and virtue, why doyou not vindicate fsam all imputation 
both yourselves and me ! For^ who ever yet saw any man condemned 
'for doing justice, especially when, by the chief dispenser thereof^ which 
k the king, the whole feame of the proceeding bath been confirmeA 
and warranted ? Nay^ who ever saw man on these terms not reward- 
ed? And must that which is the life and strength of all other ac- 
tions, be the subversion and overthrow of mine ? Havte you read or 
heard in any well governed country, that the infractors of laws made 
by public vote and consent, escaped without punishment, and they 
only punished who laboured to sustain them ? Or when, you had not 
read or heard any such thing, could you imagine a more certain sign 
of ruin in that conunonwealth ? And will you alone hope to decline 
this heavy judgment ? When, contrary to all equity and example^ you 
not only make precedents for ii\justice and impunity, -but, togethei* 
with defaming, would inflict a. cruel death on those who would main* 
tain them/ as if this might be a fit guerdon for thos«^ who, I must 
tell you, everywhere else would have been thought the best patEiots^ 
what can we expect then but a fatal period to us all? But let God 
turn this away, though I be the sacrifice. Only, if I must die, let m^ 
desire that my indictment may be entered on no record, nor divul-^ 
ged to foreign nations, kst, if they hear, in my condenmation, all 
that may argue a final dissolution in Government, they invade and 
overcome you." Herbert, p. 3. Empson perhaps deserved his fate; 
but of all state ofienders in modem times who have canted about thdt 



INTRODUCTIOW^. lk5 

ranks ; and, as the lower independent ranks were 
inclined^ for their own security and respectability, 
to support the monarch, in repressing the insolence 
and dangerous power of tbeii' superiors, it is not 
wonderful that the change of manners advanced 
with unprecedented rapidity. 

This grand revolution in manners, how benefi- 
cial soever to towns, to the smaller proprietors, and 
to such as could undertake extensive agricultural 
concerns on lease, came fraujght with the' most de- 
plorable consequences to the numerous depend- 
ents of the aristocracy. Had the importation of 
manufactures been prohibited, had there been per- 
fect liberty allowed in the choice of trades and 
professions, and had a free trade in grain been per- 
mitted', the evil would have been greatly mitiga- 
ted^ as much of the superfluous population dismiss- 
ed from estates might have found employment in 
a more independent way than' formerly, stock 
might have been quickly accumulated^ and the 
whole country enriched*. But, unfortunately, the 



iriitaej ke eppke to tlie greatest purpose. In passiiig, we may remark 
a curious fact in r^ard to the advocates for the antiquity of the Star* 
Chamber: This individual^ who had been a member of Coimdl during 
the preceding reign^ was first attacked there^ and committed by it to the 
Tower, that he might meet the justice of hia country ; and they have 
argued that this proves, that as the Star-Chamber and Coundl woe 
the same, it acted as a court of law. 

* The view taken in the text is so opposite to that of Dr. Adam 
Smith, and now generally adopted, that I have conceived it necessary 
ta discuss the snl^ect at considerable length in Note B. at the end of 
the volume. I have, therefore, earnestly to request that the readei:;; 



S6 iNTftOBUCTiay^ 

selfishness of tlie different brafochea of the JUegis^ 
lature led to the adoption of very ojqposite pdyUgr. 
The interests of- the people were so far neglected, 
that the population^ dismissed from estates, were 
pre<?luded the towns> and prevenited by severe laws 
from earning subsistence by the coarsest manufac* 
tHjres,— poHcy that bereft them of every medium 
through which they could acquire the means of 
life ; andt strange it is» that this did not proceed 
entirely from, the influence of the towns^ ishich 
were naturally actuated by the principle of mono- 
poly^ but from the mem selfishness of the owners 
of land» wbo» while they mercilessly dismissed their 
dependents, \^ere yet afraid that the infl^ux of in* 
habitants into towns might raise the wages of coun- 
try labour *♦ The same spirit of selfishness, or at 
least folly> in the aristocracy,, made them keep the 
ports open for foreign wrought goods^ that they 
might purchase manufactures from the cheapest 
market, and, as Antwerp and other continental 
towns had accumulated more capital^ and made 
greater improvements in machinery, they could 
furnish the goods of so superior a fabric, and on so 
comparatively moderate terms, as to pre-occupy the 
English market and retard the prosperity of that 

li#to« he (suNqim «(vy Friiicip]«t, mU^i»/»tlMi|i>«t3ce Wgm te 
oote a cacifol perusal. 

* It is almost unnecessary to q\iote a«tbonti«a 4»n a point m w^H 
Iqwmnj, X shall, dieretoe, lelerj generally^ to A^dersoa'a Hust. of C«m. 
to £den oa the Poor^ and ^ Dawson's Inquiry. P. 1^ Also t9 tbf 
statutes quoted in a precedUkg note, and to 4 and^ JEM. VI. q. S. 4 and 
4 Ph. and M. & &. i( £]iz. c 4. 



&7t]U>I>t7CTiOK« 27 

country K Absurd Qottona about fo^eytaili&g, aad 
the coafiaed views of the monarch in T^9fA to po« 
puUtion, prevented i^l truding in grain, a eircunhr 
stance necessarily productive of baneful conse« 
qaences* For the canmimptton of ptodnee o«l 
estates being by the dismissal of dependents so 
gres^tly diminished, and the exportation of^ and 
evem detlkig in com, being prohibited by abiiffd 
and iniquitous laws, — whence one province m^ht 
be exposed to all the mi^ry of famini^ though 
another at a sroaU dwtance was ovefstoclml 
with grain,-^while wool, for which there was 4 
great demand fjrom abroad, was a free article q£ 
eommetC0f pro}nietors of land foood ^aisturage 
inore pfpfitabte than tUlage, and quickly Uid down 
tb^if land^ . This greatly augmented the mdsery 
t£ the lower rmiks ; for, as pasturage does not re- 
quire a third of the hands necessary for tillage, 
the supejcfluoMS populati(m wa^i dUmi«9ed, and ev^ 
larged the number of the destitute t. Without 

* l%e mFOoBeii mannfactores of Bngkn j had been greatly filtered 
and protected by laws, (the importation of ft)reign cloths was even 
prohibited by &e 2d of Edward 3. c. 3.) and flourished so much^ that 
tiiere was a considerable export annually ; bnt almost every other spe- 
des of mannfacture was imported. Anderson's Hist, of Commerce, 
V. tL 4to. ed. A law^ passed in the time of Henry VII. to protect the 
home mann&cture of small silks — prohibited the importation of thefe 
articles^ which, says Bacon, ^ touched ^t a true principle." HisV 
p. 081. In the same reign, we trace in one act the principle which 
Hrf i er w ar ds formed the basis of the navigation laws. Wines and woads 
from Gascony and Langnedoc, were ordered to be imported in £ng-< 
iish bottoms only. Baoon, p, 597. 

f We have seen what John Rons says upon d^opuladon-Hind 
ikaHH now quote ihe obserrations of the famous Sir Thomas More. 
'*^ Oves, inquam, yestre qus tam mites esse, tamque exiguo solent aU, 
nunc tam edacea atque indoiuitc esse coeperunt, ut tioqaines doverent 



2S iNTRODUCrtOKi 

country labour— precluded the townSj fiiid pre* 
vented from deriving a subsistence by any species 
of fiiaihifkctures — a great part of the people were 

Ipoosy agtQ8> 4oinoil> oppida vaitent ac depoptilentus. Nempe qvi* 
pnacujaqjoe regni pfurt^l^us nasdtur lana tenuior, atque ideo pretio- 
sior, ibi nobiles et generosi^ atque adeo abbates aliquot sancti viri, hon 
ins contenti reditibus fhictibusque annuls^ qui majoribtis suis sole-* 
hmt ex proediis.cretcere^ nee habaUes satis^ quod otioee ac laute vi^rqo^ 
te8> ziibil in publicum prosint^ nisi etiam obsint^ atro nihil relinquunt, 
omnia claudunt pascuis^ demoliuntur domos^ diruunt oppida> templb 
cluntaxat stabulandis ovibug i^Hcto^ et tanquam parum soli perderent 
Itpud vo8^ ferarum siiJtiis^ac yiYatia> iUi boni yiri babitntiones omiH% 
et quicquid usquam est ciilti, mertunt in solitudinem. Bigp^. ut . unua 
.helluo inexplebilia ac dira pestis patriffi,continuatis agns^alliquot mlHia 
jugerum unb drcumdet 6epto^ ejiciuntur coloni^uidam suis^ etiam aiit 
clrcl^Qscripti fiaude^ aut vi oppresii exuuntur^ aut f^^^ti iiQunis^ 
adiguntur ad venditionem."— :3q Sir Giles Orerreaeb waa> then> no 
ideal monster. It was not the right of ownership alone that was ex- 
ercised ; small proprietors were either circumvented^ tjppressej with 
actual farce> or wearied out of their pofisessions hj iqjunes." Itaqoe 
quoquo paqto emigrant miserly vin, mulieres^ mariti^ uxorea^ orbi> vi- 
dwB, parentes cum parvis liberis^ et numerosa magis quam divite fa« 
miHa^ ut multis opus habet manibus res rusticat : emigrant^ inquam^ e 
notis atque assvietis laribas^ nee inreniunt quo se reciptant^ anpeOeiD^ 
tilem omnem baud magno vendibilem^ etiam si manere posdt empto« 
remj, quum extrudi necesse est^ minimo venundant: idquumbrevi 
errando insumpserint^ quid restat aliud denique, quam uti furentur et 
pendeant juste scilicet^ aut vagentur atque mendioentj quamquam turn 
quoque velut errones conjidimtur in carcerem^quod otiosi obambulent, 
quonmi opera nemo est qui conducat^ quum iUi cupidissime offerant. 
Nam rustics rei^ cui assueverunt, nihil est quod agatur^ubi nihil seritur* 
Siquidem unus opilio atque bubulcus sufficit ei terrs depascendse pe« 
coribus^ in cujuscultum^utsementifaGiends sufficeret^ multae posce- 
bantur manus. Atque hac ratione fit^ ut multis in locis annona mul- 
to sit carior. Quin lanarum quoque adeo inerevit pretium^ ut a te* 
nuoribusj qui pannos inde solent apud vos conficere^ prorsus emi nou 
possint^ atque ea ratione plures ab opere ablegantur in otium." Mor. 
Utop. L. 1. 

Lord Bacon^ in his History of Henry VII.^ says« that '^ endoeurea 
at that time" (1489^ when the law of Henry VII. about farm-liouseB 



INTRODUOTIOH# SQ 

reduced to the last resoit-*-of beggiiig/tlieft, and 
robbery^ and daily perished of hunger, br'suffisred 
for the irregularities into which they were driven; 
The evil might not be altogether instantaneous r 
I vanity, shame, fear, compassion, might i^strain 
I many landlords from at once: dismissing d^>end^ 
ents, when they ceased to be necessary for pomp 
or power, ' and clogged liieir own views of a silly 
ambition ; the difficulty of procuring tenants. with 
capital, must have operated to a qertain e!Ktent on 
others ; but the Revolution, when it had reached 
a certain point, daily advanced with increasing 
celerity^ Residence in town naturally ttreakened the 
sympathy between land owner and tenant : Each 
succeeding generation, educated in a new school^ 
were imbued with different feelings*; and, bet 
rides that the opportunity afforded by leases of 
large tracts, to accumulate capitaJ, encreased the 
number of tenants who were in a condition to 
embark in extensive undertakings t, proprietors 

was passed) " hegsm to be more frequent^ whereby arable land^ which 
could not be manured without people and famihesj, was turned into 
pasture^ which was easily rid by a few herdsmep ; and tenancies foi; 
yearsj lives, and at will^ whereupon mu^h of t^e yeomjinry lived, wet^ 
turned into demesnes." P. 596. 

» 

* We learn from J. Rous^ that^ even in his time> the son always 
improved upon the father in this respect. '' Avari patres cupidiotes 
^ generant filios : ubi forte, pater pro cupiditate unam destruxit villam^ 
ejus moribus avarus fihus destruit plures villas." Hist. Her. Ang^ 
P. 89. It appears from a proclamation quoted by Stow, in 1521 — ^a 
proclamation founded upon statute — tfiat the evil had been proceeding 
rapidly for fifty years previously. Stow, p. 513. 

f Leases to tenants were common at a very early period- In the 
"Award between Henry III. and the Commons, in the 5l8t of his reig« 



so IHTRODUCTIDK^^ 

theau^Ivte* induced by tlie fwoSdty df tntoaghig 
hnmrnse /&ock$ by herdsmm^ and b}^ means of 
endoskir^ ieU into tbe practice of retaming die 
naturai posaasaion of the soil *. EtidSk^ faoGs be* 
iog i^w rendered niigiM^ocjr, great transfecencea of 
ptcfperty took place ; and the purcbaaeta^ feeling: 
none of the aympatbies that mi^ht be Bnpposed 
to exist between their predecessors: and .tbeir de^ 
pendents on the sotl^ would pot coilc^ive tfaem^ 
selves under any obligation to retain or suppiut 
them* 

Of the unrelenting barbarity with which this 
new system was pursued, we have unhappily the 
amplest testimony. ^< Now, the robbei^ies, eztoni 
tion% ^nd open oppressions/^ said an tiidignani 
preacher hefcwe Edwintl VI, ^* of ttovetous cor-? 
morantSy have nd eikl, nor litmts» no btnks to keep 
in their vileness. As for turning poor men put of 



—afto some anrangcnoeiit ItlMmt tlie rantam of pg^w i gi on win liM 
been robbers— « proo£ of the barbarity of the times — it is proyided^ § 
Si^ that " Fermors that were against the king; shall leise their iermes, 
saving tlie right tf£ their lotds to whom they pay their yearly rent ; 
and they that l^bdl have the fkrms after the terms expired^ shall ren^ 
der them to the true lord." St. Marlb. c. 16»— 23, provides, that f' aQ 
teTttkan, duHng their terms, shall not make any waste, sale, not exOij^ 
of house, woods, men, nor of any thing belonging to the tenements 
that they have to farm, without special licence had by writing or co^ 
Tenant, making mention that they may do it ; which thing if they 
do, and thereof be convict, they shall yield full damage, and shall be 
punished by aiAercement grievously." 

* This is established by the passages already quoted from More 
and Bacon : but, from St. 25, Henry VIII. c. 13. to limit a flock to 
2000, the practice appears to have reached an astonishing height. It 
is said in the preamble that some had 24,000. 



^nAj^ 



U\A 



4imt hiMs, they taice it for no otkhce; but^dy, 
tlMi laod is their o^, Mid so they tam them ont 
of Umt shtofwAi Ufoe miee. Tliotmnds in Engw 
land, through such, beg now from door to door, 
who have kept honest houses ^^' Jt would be vaui 

* Bernard Gilpui^ Strype's Ecclecdastical Meroorials^ vol. ii« |». Ul. 
'The language of these great and mighty men, eays Gilpin, j% " that 
the commonalty lived too well at ease. They grew every day to be 
gentlemen^ and knew not themsdves. Their hems must be em 
shorter, by nusing their rents, and by fines, and by pluoking away 
their pastures.'* Jb. The style of these pveachers is so extraordina- 
ry^ especially when we consider the chief auditor, that another sen« 
tence may not be unacceptable. '^ Oh Lord, what a number of such 
oppressors, worse than Ahab^ are in England, which sell the poor for 
a pair of shoes^ Amos ii* of whom, if Ood should serve but three o^ four 
of ihem as he did Ahab, to make the dogs lap the blood of them, their 
wives and posterity, I think it would cause a great number to beware 
of extortion. An4 yet escaping temporal ptmishments, tihey are sure^ 
by Ood's word, their blood is reserved for hell hounds. England 
hath had alate some terrible examples of God's wrath, in sudden 
and strange deaths of such as join field to field, and house to hoifte. 
Great pity they were not chronicled to the terror of others.*^ 

The famous Latimer also inveighed so bitterly before the Ismg on 
the same subject, that the l^gher classes, as he himself observes, 
charged him with sedition. He says, p. 39, that where there had 
been *' a great many householders and inhabitantes, there is now but 
a sheapheaid and his dog"* — he charges the aristocracy with intending 
'' to make jhe yeomandry slauery, and the clergy slauery.*' fie gives 
likewise a curious picture of his father's family, to prove the diange 
of times. 

** My father,** says he, ^^ was a yeemon, and had no lands of his. 
own, onely he had a faime of 3 or 4 poimd by year at the uttermost, 
and hereupon he tilled so much as kq»t halfe a dozen men. He had 
walke for an hundred sheepe; and my mother milked thirty kine. He 
was able, and did find Che king a hames, with himselfe and his hor8e> 
vrtale he came to the place that he should receiue the king's wages. 
I can remember, that I buckled his hames, when he went to Black* 
heath fielde. He kept me to schoole, or else I had not been able to 



14 INTRiWVCTKm. 

ttf est with their iQadet : While» lA consequeiiM 
of the repeated insutrdckicmii he Could confirm 
theii* fidelity by fresh gnults from new forfdturesi 
Henry was too politic a prioce to act without the 
intervention of th& legislature i but the posture of 
affiurs enabled him to prociure pfurllametits com* 
posed of his adherent^ who were consequently 
ready to promote his viewd^ as they accorded with 
their own. In the first flush o£ success, when 
their enemies were dejected, the Lancastrian fac- 
tion were not likely to be greatly opposed ui elec* 
tions for parliament ; and Henry exerted the in-' 
fluence of the Crown iti favour of hift own parti* 
zim*i From the attainders and deaths <^' the 
tempoTsd peers, their number was diminished^ and 
those attached to the York party would be intimi-» 
dated from opposition, while the successful faction 
knew it ta be their interest to improve their ad- 
vantage. The spiritual peers, at that tirne^ form* 
ed a large proportion of the upper House, and 
were inclined to support the government^ in order 
to obtain the favour of the monarchy who even 
employed them chiefly in secular affiurs, and con-* 

* Orafton^ speaking of the second Parliament summoned by Hen-i 
ry^ {iay»^^' He tlietefore summoned againe hys great court of jpas* 
liament, whereto he woulde that there thoulde bee elected the motit 
prudent and grauous persons of euery countie^ citie> port^ and bo« 
rough ; and in especiall such as he in al his daungers^ cakmities; mi- 
series, And tmnulteous afiaires^ iised> trusted^ and fauouredj as panak- 
drs^ cxmncelersy and compaiii(»ui^ both of hia wo and aduersitie^ and 
alio of hit triumph and gbrious victory^ whose miades and studiea 
he perfitly knewe to bee fixed and sat in the pditique r^ment and 
prudent gduemaunce of the pubhqufe welth of hia reah&e and 
nion." P. Sdr, 



IMTROlWGTIOir, m 

Hived lit ttetical usurpatioa *« The ineffactutfl afc* 
tem^ of tfae Yoifcists to dethrone Heniy^ teiight 
his adhtt^nts the necessity of strengthening the 
royftl power^ fi>r the common benefit of the paitjr^ 
and of Seising the critical moment for weakening 
the aristocracy, from whom tiiey principally ap^ 
prehended danger. 

The king and the pariiAment having thus the 
same interest, calculated their measures for de» 
pressing the aristocracy as the grand objects of 
fear* Hie old laws against armed retaihers vrete 
strengthened by additionad enactments ; and m it 
was by the number of their detainers that the 
Torkiets could hope to iiegain the ascendancy, the 
jHTOvisions of the legislature were ngorousdy en« 
farced. But the ordinary courts were unable to 
carry the laws into effect against powerful fsmU 
liesy who either influenced or overawed juries-^ 
amoi^t whonit at this timei , from the pf eponder** 
mee of the Yorkists in number, they must have 
had unusual favour-^and not unfrequently intimi-> 
dated the judges themselves* Ttie very beiqg of 
the tiiunq>bant party, however, required the exe» 
cution c£ the statutes against armed retainers; 
and therefwe a new court*^that of the Star Gham'^ 
ber-^^was created t, for the trial of offences against 
those statutes-^^according to an arbitrary course^ 
alien to the equitable jurisprudence of England^ 

* See Bacon's Hist, in regard to Henry's employmoit of Church- 
men. P. 582 of WTiite Ken. Col. Vol. I. This Monarch first in-r 
sfitttted yeomen of the guarcK Halle, fol. III. 

t In die next Chapter I larost thni point will be found proved* 



54 IKTRODUCTIOM. 

The meJancholj state of the kingdom early at- 
tracted the atteotipn of tiie Legislature, but its 
enactments were not cdculated to meet the evil 



Ans. Vri. IV. from 29ir to 995. The ttftti<m mm hgmtet plftguid 
mllb worse xqs(«Mtllalltkeie« JiulicMof peaeeivmiiejeQdiiieMaie 
oormy t " The«e/' m^ » rocmber Af the Lower HoDse in ISJiur 
beth's time — '^ be the Basket justices, of whom the tale may be verified 
ofa>Ju8<jo&l(bftt Iknow, t» whom one of his poor neighboun comiixg, 
flMd> StTi I iwn very hif^y rated: 19 Hhe^sqhiidyayMkr I kaeech yxL 
to help me. To whom he answered* I know thee not. Not me^ 9kf 
quoth the countryman — ^Why, your wordiip had my team and my 
Qxenstioh »day, and I- have ever been at your wordiip's aervioe. 
Have you so. Sir P quoth the justice — I never remembei:ed Ihad anjr 
such matter, no not a sheep's tail. So unless yon offbr sacrifice to 
the idol-justices, of sheep and oxen, they know you not. If a war« 
rant come from the Lords of the Council to levy a hundred men, 
he will levy two hundred, and what with chopping m and chooging 
out, he'll.gain a hundred by the baigain." The same member de- 
clares that a justice of peace, '' for half a dozen of chickens, will dis- 
pense with a whole dozen of penal statutes." t>'£wes' Joum. p. 
661. 

*' Another way," says Strype, speaking of £dward Vl.'s time*— in 
1553— (in Vol. II. of Ec. Mem. p. 439.) " they (the gentry) had of 
oppressing their inferiours, was when these were forced to sue them 
at the law for some wrong they had done them, or for some means 
which they violently detained from them. For either they threatened 
the judges or bribed them, that they commonly favoured the rich 
against the poor,, delayed their causes, and made tHe charges therebj 
more than they could bear. Oftentimes they went home with tearSf 
after having waited long at the court, their causes unheard. And 
they had a common saying then. Money is heard every where." The 
author gives some instances of gross corruption in the judge»— prinoi* 
pally taken from Latimer's Sermon before the King. That worthy 
prelate wished " a Tyburn-tippet for such as took bribes or perverted 
judgment, if it were the Judge of the King's Bench, the Lord Chief 
Justice of England; yea, if he be my Lord Chancdlor himself— to 
Tyburn with him." Lat. Sermons. This preacher had suitors at all 
times praying him to intercede in their favour for justice; and he ad- 
vised the King, the Protector, &c. to hear causes themselves. Even 



-^wben it W6I9 the imbe^esir of thi lawgi^srer to elude 
iJiem** "the BtatultQ of 1489, for keispifag up hrm^ 
houses^ thcagh pnpiKHu^eed by B«((ioh a steifcute of 
singular p<^y^ and s^s ^Hitciogc atkniraUe wilsdom 
in the iCing aii^ Parliatnetft and wbJch therefore 
BacoDy w bis time^ . 0nde»vomted to strengthea by 
additional kw8***-was mevely a riepetilion of fcHmer 
esiaQtment3> . and |Afdves> ebmgp of system in the 
couatFy, but did dot rdieve; the mttiei^y of th\e peo« 
plef. Tber liaW provided itbit all hou^ of bus*" 
bandry^ ua^d wHb twenty acresland Upwards^ should 
be maintained and kept up;ior ever, with a com- 
petent proportion of land, : attached^ to therii*— 
unde? the petaJty of sisizure of half the profits by 
the Ki9g off'lihe Lord of the fee,, till the statute 

Hmrders by men of note escaped unpunished^ through the base- 
ness of the ministers of the law. Strype's Mem. Vol. II. p. 442. 
But the most incontrovertible proof is th» fdUowing eKtHSM frdm 
Sk N. Bacon's speeeh as Lord Keq^ to Pariismfeni^ ih 1672, 
a» epeniag^ ibte Session. ^ Iv it not, trdw you;, a ti»mflilrt>U6 din- 
gokoikg; to hmre li jtaiMiee a midiitatner^ td have him that shoilddby* 
Mi oa& and d^y set foith justice and rigbt-^'Migi^ndt his eath> o^ 
f6r iigvry and i^rtmg?— to have^ him that is spedttlly chosen 
amtegbt a mimbe^ by a prince^ to appesse all brawlings and con- 
tibTcnsa^ to be a sower itfid nudntainer of stlife and sedition-^by 
sirayilig and leading of juries according to his ^vdll— -aoqtdtting some 
for gain^ indictuig othen for maUce> bearing with them as his servants 
or friendsy dverditowing oth^s as his enemies^— pi^ocuring die quest- 
ibonger to b« of his Uvexj, or otherwise-in his danger^ that his winks^ 
fiowningB^ and oountenances-may direct all inquests } Surely^ sure- 
ly^ these be iSkey ib&t be subverters of aU good laws and orders, yea, 
that make daily the laws, which of their nature be good, to be- 
come instruments of all injuries and mischiefs." ITEweet JourUt 
pbl5d. 

* Strype's JSc. Mem. Vol. il. p. 94^ et seq. 171 and 175i» 

t 3 Inst. p. 204; 



36 INTRODUCTION. 

were cdmplied with •. Bacon was not prevented, 
by the evident futility of this law for ages, from 
deducing mi^ty aidvantages from its supposed 
efiect of fearing up a middle rank of society t. But 
the consolidation of f^Emiis was not retarded by 
these enactments, however individuals might be 
harassed by them ; and, as thfe country population 
was so greatly diminished, while intercourse with 
the cities and large towns daily increased, provin- 
cial towns,— which had owed their importance to 
the demands of such a numerous body of country 
inhabitants for coarse articles of manufacture, &c. 
and could not compete in productions of an equal 
fabric with those furnished by the large towns — 
fell into decay t. But, as the laws about appren- 
ticeships did not apply to them, part probably. 



* Bacon's Hist. p. &9&. 

t In 1597^ this great philosopher brought that important topic be- 
fore the Lower House— and his speech was to this purpose : '^ Indosure 
of grounds brings depopulation^ which brings^ 1st, Idleness. 3e%, Decay 
of tillage. Sdltf, Subversion of houses^ and decay of charity^ and 
charges to the poor, idhly, Impoyerishing the state of the reafan." 
'' I would be sorry^" says he^ ^^ to see within this kingdom that piece 
of Ovid's verse prove true— jam S^es ubi Trqja fuit^ so in England, 
instead of a whole town full of people, noi^ht but green fields, but a 
shepherd and his dog." D'£wes' Joum* p. Ml. 

X It appears from a passage quoted already from More's Utopia, that 
the lower classes used to manufacture some of their own articles of 
dress. Yet a psurt of the manufacture only — as the spinning— could 
be accomplished by them. See also Eden. p. 121, as to this. Mory- 
son too, in his travels, published in the b^lnning of the seventeenth 
century, says, " Husbandmen wear garments of coarse doth, made 
at hornet, and their wives wear gowns of the same cloth." P. 178. . Both 
Hume and Eden — see the last at p. 109, haye attempted to account 
for the decay of provindal town^i but, in my opinion, unsatisfactorily. 



IMTRODUCTIOll* S7 

by removing into 4he large towns, where their 
industry would be rewarded, escaped the misery 
of their former customers; a large portion must, 
however, have lAared the common calamity-^as 
their labour jcould no longer be required. 

WhilJe the kingdom gnoaned under such wretched- 
ness, theReformiition was effected; an.event whicli, 
though it proved, ultimately, productive of the hap- 
piest consequences, in the outset greatly augqfiented 
the misery of the lower orders. By th,e dissolution 
of religious houses, the deyotees of the old religion, 
Vith their attendants, paupers, &c. to ^n immense 
number, were thrown loose upon the world ; and, 
though some regulations were devised, to afford 
part of them relief, the great body were obliged to 
j(^n the common herd of rogues and beggars, or 
perish of hunger *. Nothing indeed, casts a greats 



• The monks/' says Eden, '' to tiie number of fifty thousand, were 
converted mto miserable pensioners, and, unaccustomed to the active 
exertions of industry, were thrown among the busy crowd, to whose 
manners and modes of life, a long seclusion from the world had ren- 
dered them indifibrept," p^ 94< That part of the monks got pensions, 
at the rate of four, six, and eyen eight pounds a year, is a point establish- 
ed by the clearest evidence. See Burnet's History of th^ B^ormationy 
vol. I. p. 487. B. III. and No. 3. of Col. there referred to, Strype, Ec. 
Mem, vol. I. p. 262. — ^but this extended to a v^ry small portion of the 
fifty thousand. Thus, in the case ^uded to by Burnet, where the 
highest pensions were allowed— -thirty monks had pensions assigned ; 
but then there were thirty eight individuals, denominated religious 
persons, who were dismissed with a sum of iponey distributed amongst 
them, amounting only to £80, 13s. 4d. or little more than two 
guineas a-piece— a sum that could not support them above a few weeks 
or months at most : Besides these, there were 144 servants who were 
merely paid up any arrears of wages. It was in fact only those who 
were in priest's orders that became stipendiaries. According to some ac^ 



58 INTBODUCTION. 

er stain u(N>n the Beformatkin, tfaaii tiie toeatment 
of tias unba{)py devotees of' the old religion, who 
were loot onjy divested of their lifv«iili0odSy but 
held up ih every form to public ^lotr^nce and 
scorn*, exposefl to the harshest and most inhu>- 
man pumshcaents by statutes directed particularly 
against themt ; ^iculed on the stage in stupid in** 



counts, no provision in the majority of cases was made for any. An- 
derson's History of Commerce, 4ta edit voL IL p. €9. And dieii 
the hospitals^ to the nu^aber of IIQ^ heing also disfolvedjr an immense 
addition of poor, formerly provided for, were thrown amongst the 
general mass of the indigent.-f-It is quite ridicnloos to suppos^^ 
that above a stiisJl propovtioli of the fifty thousand got peasiMia ; 
)b(a(?aufie t]\a annual fent of the religious houses was at the utmost 
only about £160,000, and even at four pounds a-piece, their aliment 
Vould have much exceeded the whde. It is true, that thia annual 
srent waa not a tenth of th^ value, because tiieae booaea had gmt^ 
ed leases at low rates for large fines : 9ut, in the mean time^ it stood 
thus. The b^ging friars, I presume, were never thought of, while 
their trade was interdicted ; and, it wotdd appear, that the pensioners 
had much difficulty in getting their annual pittance. Strype's J^e. 
Mem, vol. JI. p. 98. ' 

* See the libel against that class, entitled, the Petition of the B^- 
gars to Henry VIII. in the first volume of Somers' Tracts, by Scott. 
They are there accused of every crime. 

t Burnet's Hist, of Ref. Part II, B. I. P. 83. The act refer- 
red to by him passed in |543^ is a mojst inhuman one, adjudging 
vagabonds to be the slaves of any one who presented them to a jus- 
tice, for two years, and to have the letter Y imprinted on their breasts 
with a red'hot iron. The masters were permitted by the statute to 
treat these slaves in a manner utterly revolting to humanity ; and if 
any one ran from his master, and was absent for fourteen days, he was to 
become his slave for life, after being branded on the forehead or cheefc 
witji the letter S ; and if he ran away a third time, and was convicted 
by two witnesses, he was to be punished as a felon with the pains of 
death. *' A great many provisoes," says Burnet, '^ follow concerning 
clerks so convict ; which shew> that this act was chiefly levelled at the 
idle monks and friars^ who went about the coimtry, and would betake 



*NTHai>UCTTON; S9 

teiiwles and forces^ — ^for begging a little lyread of 
the diaritable, to the necessity of which thej had 
been neduced by an event which kiman foresight 
cduid iMt ^culate on. This too proceeded from 
men who had ^ot their lands^ or from ecclesoiastics 
G(f the new eatablishment, who were ready to ex- 
dahn gainst the sacrilege of touching the patri^ 
many of the church-^wbich, while Idiey merci^ 
lesidy divested their predecessors of it, they con^ 
eei^ed ought still to be applied to holy wes t* 
But the misery attending this event did not rest 
here. The lands attached to religious houses were 
immensely extensive, and as corporations are ever 
the best landlords, its tenants, though numerous 
and hotdmg <ronsequently small farms, may be pre^ 
sumed to have been the most independent and 
comforl^le of their diass ; but, now that the 
ground passed into other hands, where there 
could exist no sympathy with its occupiers, they, 



tiimuelvei to no employnmit; hat findii^ the pedfde ^t td Imre 
^ompasBioii on them^ oontuiaed in iSaftt eourae of life." The prelate 
irho could vixite Uxob, Is yet ready to ezelaim about tbeporerty of the 
efeigy. But these weate es^elics^ and a diferenoe in reUgion with 
smne men shofts up every avenue of oompassion. 

* See IstVoLof Bcmiety^ 576>asto€he8tagep]ayi. 

f 6trype's Mom, Vcd. II. p. (IMI.) A stmnge £irtaiity was alleged 
to attend lihoae who were ootpoenied in ]dundering the dmnh. WMu 
gift told Queen BBaabetih^ ^' that churdi lands added to an ancient 
inheritance had proved like a moth fretting a garment and seoretiy 
consamed both ; or like the eagle that stole a oqbI from the altar^ and 
thereby set her nest on fixe^ which oonsmned both her foang eagles 
and herself t^t stole It/' XAf^ of Hocicer pveflKed to his VTori^; 
p. 12. fol, ed, 



40 INTRODUCTION. 

exclusive of any security that part of them might de- 
rive from leases, (leases were confirmed by statute,) 
were forced either to quit their possessions, or to 
submit to such an enhancement of the terms as 
must have blasted all their prospects ^. 

The melancholy tone of the statutes, the declam- 
ations of the pulpit, and of cotemporary authors, 
against the cruel selfishness of proprietors,-— the 
general rage against large flocks of sheep, and 
against enclosures, the efiect of which was to con* 

* In a book entitled the Supplication of the Poor Commons^ pub- 
lished in 1546> from which Strype extracts some passages^ we have 
the amplest proof of this. Tenants of abbey lands were daily di&- 
miflied by the new proprietors ; and such was the rapacity of the last, 
that the former did not derive security from their leases^ though 
these were specially provided for in the statute. '' When they," (the 
new proprietors,) " stand once seized in such abbey lands, they make 
us, your poor commons, so in doubt of ^eir threatenings, that we 
dare do none other but bring into their courts our copies taken qf ^ 
convents and of the late dissolved monasteries, and confirmed by your 
High Court of Parliament They make us believe that, by virtue of 
your highness, all our former writings are void and of no effect : And 
th^it if we will not take new leases of them, we must then forthwith 
avoid the ground as having therein no interest. Moreover, when they 
can espy no commodious thing to be bought at your highness' hand, 
they labour for and obtain leases for 21 years in and upon such abbey 
lands as lie commodious for them. Then do they dash us out of. 
countenance, with your highness' audiority, making us believe that 
by virtue of your highness' lease, our copies are void : So that they 
compel us to surrender our former writings we ought to hold, some 
for two and some for three lives, and to take by indenture for twenty** 
one years, overing both with fines and rents beyond all reason and 
conscienoe." 

They state that such possessors as were heretofore able, and used to 
bring up their children to learning, were now obliged to set them to 
labour, while the poorer classes could not procure work for theirs, 
" though they profferred them for meat, drink, and poor clothes t* 
cover their bodies." Strype's Ec, Mem. Vol. I. p. 399. 



INTRODUCTION. 41 

^lidate many farms and abridge the number of 
labourers, — ^the repeated insuitections^ — the exe* 
cution of seventy-two thousand rogues; >great ^nd 
small, even during the reign of Henry VIII. a pe- 
riod of only thirty-^even years and ftine months, 
need not after this excite surprise ; they were the 
necessary consequence of the change of manners 
and of the policy pursued, The evil in time effect- 
ed its own partial cure j yet, even in the reign of 
Elizabeth, though some mitigation of the general 
misery was found in the poor's laws then devised*. 
•• Thieves," says Harrison, " were trussed up apace, 
and three hundred and * four hundred were com-f 
monly eaten up by the gallows every year.*' As 
for beggars, they were so numerous, that, observes 
he, though *« the punishment be verie sharpe, 
yet it cannot restrei^e them from their gadding, 
wherefore the end must needs be n^arfiall law t. 



* The poor's laws have "been productive of mvLck mischief; but^ at 
the time of their introduction^ they were absolutely necessary : for 
ibe poor must otherwise either have perished or destroyed the rich; 
and the consequences were beneficial to the whole community at the 
time. The provision for the poor enable4 them^ fo a pertain extent^ 
to purchase food> a^d being so much withdrawn from the rich^ which 
they would have ei^pended on foreign superfluities, obliged the latter 
to put more of their lands into tillage. This afforded employmeut to 
many; and as the labourers thus employed^ as well as those sup* 
ported by the assessments, required coarse garments manufactured a^ 
home, fresh hands would find work in supplying such articles; and 
these, being again in a condition to purchase food, would react iqpoi) 
agriculture. Some beneficial acts, to exclude foreign manufactures, 
and advance the home, were passed in £ilizabeth's reign. Ander, va, 
Canu voL ii. 120 ; but the monopolies were numerous on the othjs^ 
hand. 

t P. 184. 



4t mtRo)iuctioN. 

The g^ifieiral distiiess opened itien's tninds to ibt 
eH^ts (rf'over pqptdation. The towns, bj obtaining 
and enforcing exclumve privileges, and by at least 
concurring in general laws to prevent the influx of 
inhabitants f Ifotafi the country, and the lower ranks 
by their complaints of, and rage against, the employ- 
ment of foreigners, discovered sound knowledge 
on the subject *' : And we learn from Harrison ^^ 
rectly, that the prevalent opinion in his time-^e 
published in 1577— was, that the number of man* 
kind was excessive. " Certes,*' says he, « a great 
number complaine of the increase of pouertie, 
laieing the cause upon 6bd, as though he were in 
fault for sending such increase of people or want of 
wars that should consume them, affirming that the 
land was never so fullt." Again, « Some af* 
firme, tbat youthe by marrying too soon doo no? 
thing jMTofit the countrie ; but fill it fiill of beg- 
gars, to the hurte and utter undooing, they say, 
of the cominonweadth t/' In anothi^ place, where 



* A^denon'fl Hist, of Com, vci. ii. The greiit riot in London on 
May dny, in the reign of Henry VIII. was directed against the fb^ 
r^dgnert^ who were accused hy the people of engrosaii^ the trade and 
manufiietures of the nation^ Halle, p, 69, et seq. By 14 and 1$ Hen« 
ry Tin. c. S, aliens were prohilnt^ from tricing aliens as appren^^ 
tiees ; and no alien was allowed to have more ihan two aliens as jofus 
neymen at one time. 

t P. 19S. The whole page pi^esents a pictiue of <lte tttmost wretch- 
edness* 

% Harrison, p. S05. He says, ** That the twentieth part of the 
jeahn is emplded on deer and conies ;" and justly remarlcs, *^ Hiat 
priTfleges and faculties are also another great cause of the ruins 
of a commonwealth, and diminution of mankind: For wliereas law 



WT&ojyvcijou. 43 

h^ tce^to ol'tbe (miisesof laegging^jaiidfittrilntte&k 
fi^rtly to tbe griping avarioe of great ^tnilies, Mrho 
ibund pretetcte '^ for wiping mmk out of Iteur a(> 
jeupi^gfc** he says, Mtbe i)ettcar miaded cbo /«- 
«Ak? th« r^UniB for altogether, and sedt to live in 
4>ther (emiiHriJeSt as Fraoce, Germanie, Barbaric, 
J»4iai Mo^couia, iMd verie Calecut^, conplaimng 
of no room to be left for them ait iioroe/^ ^* Yet 
the greater part comtnoi^e having nothiog to irtaie 
vpoo, ar vnifvdh and thereupon doo either prooue 
idle beggerSy or else continue etarka dieeues, till 
the gaUowes doo eat them up ♦.'* 

Having shown how the Revolution in mannens 
aflfected the people, it remains to trace its conse- 
quences upon the government. During the ple- 
nitude of aristocratic power, the lower country 
population, possessed of independent means of 
eubsistence, must, for their own security against 
aggression from great &milies, have sought the al- 
liance of potent neighbours. These would gencr 
rally be of the gentry, as their jealousy of the 
peerage would induce them to desire the support 
of numerous allies, that they might be enabled to 
withstand the influence of that body, and buoy 
up their own class ; and they \yould retain the at« 
tachment of the lower ranks by procuring laws 
beneficial to them* But men of independent cir^ 

and nature doN>th permit aXL men to liue in tbar bMt manner, ancl , 
whatsoeuer trade they be exercised in^ tber^ eommeth some prwUefe or 
other in the waie^ which cutteth them off from this or that trade^ 
whereby they must needs shift ^ile and seeke mito other countries.'* 
/A. * P. 183. 



4Af iNTBODUCTION. 

cumstanees w<mld submit no longer to the degra- 
dation of such patronage than was requisite for 
their own security against injury and insult. Corn- 
mines, in his time, remarked that the English peo- 
ple were jealous of the aristocracy y and when the 
change of manners had abridged the power of the 
higher ranks, the lower would be ready to sup- 
port the throne in extending its authority, that it 
might fi^lly reach a class whose influence in the 
community was equally hurtful to the preroga- 
tive, and subversive of the public happiness. The 
extensive transferences of land afterwards increased 
the influence of the inferior gentry, as they dimi- 
nished that of the higher, as well as of the nobili- 
ty : For new men, as they are most obnoxious to 
aristocratic pride, are commonly the most spirited 
in resenting insult, and the ablest to improve the 
natural influence of their station. Power, that 
threatens all alike, is not so much an object of ap- 
prehension with any particular class, as that which 
proceeds from a body but a little removed from 
itself; and the inferior country ranks, therefore, 
would, without calculating upon the distant pro- 
blematical .consequences of an undue preponder- 
ance in the crown, throw all their influence into 
its scale, that it might reduce the still formidable 
power of the great aristocracy, and raise their 
own respectability, by depressing those above 
them. The Star Climber was the most arbitrary 
institution ever known in England ; yet the illegal 
extension of its authority, dupng the reign of 
Ilenry VIII., must have gratified the lower ran^^ 



fiJTROBUCTIOl^. 45 

ad its avowed object was to bring within the sphere 
of justice men whose situation raised them above 
the reach of ordinary jurisdiction, arid to teslch 
them that their inf6ri&r neighbours should not be 
aggrieved without the hope of remedy. ' 

Large towns cdnimonly give the tone to public 
(pinion ; and these had daily obtained a great ac- 
cession of strengtiii both by the improvements in 
the mode of life,' and -by the decay of provincial 
towns-t-wbile the increasing wealth of the coun- 
try, and the transferences of land, rendered the 
citizens less dependent on^ any particular class of 
customers. If they were not, in fbrmer times, 
proae to support the aristocracy, who envied their 
prosperity, and : despised their habits, they would 
be less so now that the change of manners made 
great fimiflies more sensible of any approach to 
rivalry in expenditure, and the citizens more apt 
to aftect it from their increasing wealth. While, 
therefore, the prerogative was likely to come into 
contact chiefly with the aristocracy, towns would 
be, in most cases, disposed to support it. The 
literary men, too, in that age, being patronized by 
the crown, inclined to direct the current of public 
opinion in its favour. 

The advantages which Henry derived, at his ac- 
cession, from the state of the aristocracy, and his 
own personal qualities, have already been detail- 
ed ; but it remains to be stated, that the disorder, 
ed frame of civil society, in consequence of the 
dismission of dependents from estates, naturally in- 
duced the higher ranks to desire measures which. 



46 INtrRODlJK^tlO^ 

howevecinnocuQU^ tbey mig]ht appeslt ^ the time, 
formed precedents dan^rous to puWc liberty: 
For m^kind seldom reflect upoll tJie pfoblemati<* 
C2|l ccmB($q^6ficea of measur^a. whicb liberalie tbem 
from present calamities $ 4nd neither person nor 
property: bemg safe from the numerous banditti 
that infest^ed the: kingdom^ i/irbile repeated iimir* 
rectiona tl^r^atened^ the yery ei^istence of aoeid 
institutions^ the people ndither weighed the: An* 
tant conBequencea .of itnpresameaifes wbioh. swept 
off the idle^ xknt; of a rmott to marl&al law« 
which promised reljief frem: 9iteb barrassing evibu 
Tboogb^ th^efore^ specufartiye p(^tician» enter-* 
ed their protest against the use of maatktl kw^ 
when it could pdasibly be avoided; tbe bodies of 
men» who posseissed ii^uence,. fre^ently solfaJtedl 
Qommissions to mithorise it. But it oi^it n^er 
to be fprgott^d, that these cobofnisfiioas Were 
never executed, except in cases of actual iHsunreo 
tion } nay, the greatest legal authcrritiets held that 
the execution of them under other circumdtanceflp 
would have been murder in the agents*: and 
that the aristocracy themselves generally rmsed 
the armies, while the prince was often di^cnsed^ 
even in cases of actual insurrection,, to adopt 
milder proceedings towardi^ a chs» whose misery he 
deplored. Tt was chiefly his clemency to thepoer^ 
and his resistance of sanguinary measures, winch 
raised such a host of enemies^ against the Duke of 

* See this subject discussed in the next Clnpter, under the heal 
of Martial Law. 



Som^Tsei, protector to,£4wftfd VL ^ in spite of 
the Fegal power with wbicb> be. was inyest^d^ 
broug][it bitn to the seaffi)ld *• . 

From «^ mmy curcumstances> the jQujxent set iu 
staoBgly in favpur of the parerog^ve^ and Henry 
knew how to avaU bifn|3^ of bis; situatioor^ << It 
wasr hie ttianoer always/' says Herbertv '< with 
great AMliiatry to p9ocur« meaiibers' ,o£ Pasrlia- 
mexit weH alfeeted tp^ bis service* t" J^e . gene^ 
faHy kept up a good qorrespondeoeef with both 
Houses^ Md wasi seldom disappoiofted in bis ev- 
pectafiods but m re^d to 9«q^Uest wbiclh, smi 
they in those times d<s^y affected the members 
themaehtes^ wjere g;tanted with reluctance t . He 
had allowed hiiBsetf^ a^^me period^ biDwever; t9 be 
deeetrefl by js^pearan^es, or to be misled by his 
coHnaeUom^ into the errcmeous belief! of a predia* 
po«tk« m th^ peopk to submit to any measures 
of tbe eoiirt : For he ventured tcv violate the fun* 
dament^l pdneiple of the consAitutioni by an at* 
tempt tO" impose a tax without the assent of the 
Legjslatujre ; but the attempt raised such a spirit 
of comiztotian, that he perceived the propriety of 

* StiQrpe's £c. Mem. Vok II. p. 153^ 167> 169^ 171^ and 18% 
Burnet^ VoL V. p. 327. It would appear tbat some foreign troops 
had beiefii entertained ; but it disgastcd the people, lb. The nobil- 
ity and gentry^ however^ seem to have been employed against the 
^eo^e, and they desired sanguinary measure^. S^Tpe's £c Mem. 
VoL IL c 21. 

t V^ SJIS. In 1614> Sir Roger Owen» member of the lower house^ 
ascribed the fall of Cromwell (Henry's minister) to his having un- 
duly interfered with- elections. Joum. Sd May> p. 470. 

X Burnet, Vol. I. p. 16. 



48 INtfeODUCTIOK, 

recalling the witrrants, and disavowing the mea-^ 
sure \ It was in religious matters, after the com« 
mencement of the Reformation, that Parliaments, 
during this reign and the three following, shew- 
ed themselves inclined slavishly to adopt sugges- 
tions from the throne, and the conduct of Henry 
and his successors was chiefly distinguished by an 
arbitrary character; but when we examine the 
causes of that acquiescence^ we discover them in 
the circumstances and feelings which attcsnded the 
Refotmation itself* As this is, however, a subject 
which deserves investigation, it will not be impro^ 
per to enter into some detail. 

Even in tlie darkest ages, there were instances 
of individuals- who impugned the authority of the 
Popish yoke, and gained a few proselytes ; but it 
was reserved for Englishmen to disclaim the do- 
minion of the papal see, with the first proq)ect of 
success t. Popular movements have commonly 
been ascribed to the principal actors in them, as 
to their authors ; but the utmost that can be ac«- 
complished by individuals, in such cases, is mere- 
ly to avail themselves of a happy predisposition in 
the public mind, to give form and consistency to 
loose opinions, and to bring to the aid of an infant 
sect or party, the weight of talent, learning, and 

 Holinsbed^ Vol. II. p. 891. Halle^ 137, et seq. Herbert, p. 06 
and 67. Burnet's History of Ref. Vol. V. p. 36 and 37, Burleig^'^ 
Paper to Elizabeth. Wolsey afterwards pretended that he merely 
wanted a benevolence, but he was answered with law. 

t See Fox's Martyrs, Vol. I. for an account of reformers long be« 
fore Wicklifie's time. 



. INTRODUCTION. 49 

character, or station. They may thiis strengthen 
.and direct the current j but, if they be wi^e be^ 
yond their age, they must expect the just appre^ 
ciation of their views from an enlightened poste- 
rity. Thus it happened with John WickliffCj to 
whom the first grand attempt at reformation has 
been attributed. Previous attempts, as we have 
observed, had proved abortive — ^because the times 
were not ripe for a change; but the merit of 
Wickliflfe lay in seising the favourable moment for 
disseminating his doctrine. In most of his princi- 
ples he had been, in a great measure, anticipated, 
even by writers whose names are forgotten  ; but 
the profoundness of his learning, and greatness of 
his abilities, enabled him at once to take the lead, 
and thus gave to the sect the name of its cham« 
pion. This eminent individual was reader of di-^ 
vinity at Oxford, and began to broach his opin* 
ions about the year 1371* His inost inveterate 
enemies, while they endeavour to blacken his me* 
mory with the imputation of vices, and of many 
profane as well as ridiculous tenets, do ample jus- 
tice to his great endowments ; and it may be re- 
marked, that the slander of Pol. Vergil t— that be 

• 

* Fox, p. ^21, et seq. 

t Pol. Vei^. L. xix. p. 399 & 400. After having said, that, at 
that tune, there existed many learned and hraye men, he ohservea— 
Extitere et aliqid insigni infamia, quorum caput et prineeps fuit Joan* 
nes Wythclifius: is, ut fama est, k primo indignatus, quod hon po« 
tuifiset ad snmmos sacerdotalis ordinis aspirare honores, factus inde 
sacerdotibus cunctis inimidor, coepit divina scripta perverse interpre-* 
tan, atque novam instituere sectam, &c. The character of Wick-* 
liffe, for talents and attainments, is thus given by a cotemporaiy 

VOL. I. S 



50 INTJJOPVCTIQN. 

^ctad from diflappmntmetit in htfi ambitious hape» 
of reaching the highest hoQoura in the Cfaurdi he. 
abimdoned^s really a tribute to his character for 
talent and learning. Instead of the timidity for 
which* at a more enlightened period, the Saxon 
reformer was remarkable, Wickliflfe and his party 
at pnce struck at the root of the evil, disclaiming 
alike the supremacy of the Pope, and the tenets 
and practices— such as purgatory, the real pre* 
^mQ^ in the eucharist, the tutelar protection of 
siuut^: the adoration of images, auricular confess 
9{o^, pilgrimages, the effect of baptism, the coe« 
)ib$cy of the clergy, &c,f~which peculiarly distin* 
guish the Catholic superstition, and boldly ap* 
pealed to the Scriptures as the only rule of &ith. 
Qualified equally by nature and by his uncommon 
aittainments to be the leader of the sect, he did 
not permit his talents to rust in inactivity ; for, 
besides translating the Scriptures into English, he 
is said to have written about two hundred books, 
ihe majority of which were preserved till the six- 
teesith century against all the efforts of the clergy 
to destroy them *. That body were particularly 
oftended at the translation of the Scriptures, by 
which, they alleged, the evangelical pearl was cast 



historian of great credit, and who, being a monk, and an inveterate 
enemy, is in this respect the more to be trusted : "In philosophia 
nuUi reputabatur secundus, in" scholasticis dispiplinis incomparabilis. 
Hie maxime nitebatur aliorum ingenia, subtilitate scientiae, et pro- 
funditate ingenii sui transcendere, et ab opinionibus egrura v^iare. 
Knigfiton^ p. 2644. 

* Henry's Hist. Vol. VIII. p. 234. 

2 



*> 



abroad* and trodd^ under feet of awine« ^^ Siq 
eva^gelica margarita spargitur et a porcds eoocaU 
catur *.*' Hi« followers weat about praaching the 
gospel^ barefooted, and ploathed in tuaset } and^ 
as the aiiafiplicity of their dress made a. de$p imt 
pres^ian on the eominoo people* th^ enemies 
likened them to the false prophets^^raveAous 
wolves in sheep's clothing — of whom Christ fbrot 
warned his disciples. Their doctrine* hf^ymvts, 
attracted mmy amongst th& high elassea, mi even 
amongst the people, from a mqre impure cause : for 
tbey declaimed virulently against the monafltic instit 
ttttious and the property of tlie church i and weal 
so far as te assert, that it was not only lawful &a 
the temporal lords and gentry* but uicuallMmt on 
them* under pain of damnation* to seize the pos* 
seaaions of any delinquent church ; and that tithes 
were purely eleemosynary, and might l^e withheld 
by the people upon a delinquency in the pastor^ 
and transferred to another at pleasure t» Great 

* E^nighton^ p. 2644. Principales pseudo LoUardi^ primi intinM 
ductione higus secto nephands^ vestibus de nisseto tttebantur pro 
majore parte^ illorum quasi aimplicitatem oordia oitetdeate^ eatimoB, 
ttt sic mentes intuentium se subtHiter tibi attnihex^B^ et hhontem io^ 
cendi atque seminandi insanam doetnsam^ aecfoiioB ^ggredsxetttvat* De 
talibus^ enim^ loquitur dominuB in evaxq^elio deoans ofuos cxfere ab 
d% ait^ enim^ attendite a falsis propbetis, qui ad vos T^unt in vest!*' 
mentis ovium^ intrinsecus autem sunt hipi rapaces^ p. 86SS^ See also 
Wakingbam, Hist. p. 191. 

t Walfiingbam, Hist. p. 191* Ypodig* Neust. p« ^S2. Knight 
ton gives the particular charges of heresy against Wieklifi^; and 
by these he is accused of having gone a little £ff&er than ifdkat 
is stated in our text*— '^ quod domini temporides possunt ad arbitrium 
auferre bona temporalia sibi ab ecclesii habituaUter delinquente^ vet 
quod populares possunt ad eorum arhHrvum dominog delmquenies corri* 
fere" P. 2648. 



52 mTRODtJCtlON* 

prospects thus encouraged the higher classes to 
advance the infant creed; and to that motive 
Walsingham attributes the success of the new 
sect in obtaining so many high proselytes. " Eo 
nempe maximo, quia potestatem tribuerunt laicis^ 
suis assertionibus, ad auferendum temporalia a vi« 
ris ecclesiasticis et religiosis *.** It is not so won- 
derful, therefore, that a cotemporary monkish his- 
torian should endeavour to blast the credit of the 
reformer, by alleging that he had John Balle, the 
friend of Wat Tyler, as his precursor, who pre- 
pared the way for him by similar opinions. « Hie 
habuit praecursorem Johannem Balle, veluti Chris- 
tus Johannem Babtistam, qui vias suas in talibus 
cfpiiliombus prasparavit, et plurimos quoque, doc- 
trinS. sud, ut dicitur, perturbavit t." Amongst 
Ae favourers and patrons of WicklifTe, were John 
6f Ga4int, (on whom the government chiefly de- 
volved in the old age of Edward III.,) and the 
Lords Percy, Latimer, Montague, &c. t who are 



* Wals. Hist p. 191- 

t Knighton^ p. 2644. See also p. 2666, 

X Knighton, p. 2661. Wals. Hist. p. 328. Knighton, after men' 
tioning that these great men patronized the sect, proceeds thus : '^ Isti 
erant hujus sects promotores strenuissimi, et propugnatores fortissimi ; 
erantque defensatores validissami et invincihiles protractatores. Qui,, 
militari cingulo ambiebant ne a recU credentibus aliquid opprobrii aut 
damni propter eorum prophanam doctrinam sortirerdur; nam zelum 
dei hahuenmt, sed non secundmn sdentiam: Crediderunt namque 
▼era fuisse quae ^pseudo-doctoribus audiehant, et sic vani facti sunt in 
cogitationibus suis, et eis similes in voluntatibus sids, factique sunt 
dves et domestici eorum. Cumque aUquis pseudo-prsdicator ad par- 
tes aHciyus istorum militum se diverteret prsedicationis causa, incon- 
tinent!, cum omni piomptitudine populum patriae convocare et ad cer- 



INTRODUCTION* 53 

accused^ by a cotemporary historian, of having 
served the cause wiUi other w^eapons than the 
s^irituaL When a preacher arrived at any parti- 

tnm locum vel ecclesiam cum ingenti solidtundine congr^are satage- 
bat ad audiendum voces eorum licet invitos, resistere tamen vd con- 
tradicere non audentes, acsi cum prophet^ damaret et diceret, si eum 
audire nolueritis, etme ad iracundiam provocaveritis, giadiits devorct* 
bit vos. Nam assistere solent juxta sic inepte praedicantes^ gladio etpelta 
sHpati ad eorum defensionem^ ne quis contra eos aut eorum doctrinam 
Uasphemam aliquid temptare vel contradicere quandoque auderet. £t 
sic dcjecto humilitatis flore^ quos non potuerunt ratione^ gladii timore 
scepisdme acquisierunt O Christi doctrina mitis^ humilis^ et man« 
sueta ! O repugnans nephandorum disdplina superba^ gladiata^ in« 
vidis^ et detractionis plena / Christi namque doctrina est^ si quis vos 
non audierit^ exeuntes excutite pulverem pedum vestrorum in testi* 
monium illis. Istorum Lollardorum sive Wyclyvianorum disdplina 
Jonge alitor se habet. Si quis vos non audiet^ vel contra vos aliquid 
dixerit, eximite gladium et eum percutite^ aut lingud mofdagifqmqm 
tjuB vulnerate. Nam solent isti nepbandi bigus sectae doctores di« 
cere^ quod null! eis contradicunt^ nisi solmn peccatores et maligni seu 
vitiatL P. S661 and 2. See also p. 2664u How many are the ways 
of self-deception ? £very sect proclaims the impiety^ injustice^ and 
cruelty of persecution; yet most are too ready to think it proper 
against all that oppose their particular views; and the author, who 
could write thus was amongst the number. Wickliffe's enemies are 
abused by protestant writers for defaming him ; yet he himself set 
the example. Knighton tells us^ that invective and detraction were 
the means his sect took to advance their doctrine. See p. ^664. He 
is alleged to have said — ^^ Nullus sacerdos in aliquam domum intrat, 
nisi ad male tractandam uxorem> fiHam^ autandllam^ et ideo ro« 
gabat ut mariti caveant ne sacerdotem aliquem in domum suam in« 
trare permittant." P. 2670. But far more flagitious crimes were 
imputed to the established dergy^ (See Fox's Martyrol. vol. L p. 662 
-—book of conclusions exhibited to Parliament;) though the im-« 
putadons were advanced rather as inferences from their celibacy,' 
than as well known facts. Hence^ however^ we ought to distrust the 
stories so industriously circulated against tiie religious houses at their 
suppression in the time of Henry VIII. VHien men are determined 
to plunder an establishment^ they pever fail in a pretext to justify 
their rapadty. 



S% IKTRODtJCTIOK. 

edbr plabe, they assembied the people even against 
tiudir wills, and ohiiged them patiently to listen to 
the doctrine, under the tiireat of instant ^xecu- 
tion. The same author tells us, that by the inde- 
liitigviMe industry of the sectaries and their pa- 
flfbtas, hibirfe than half the kingdom were drawn to 
their party *• 

Eni^and had long been tame in submitting to 
ecclesiastical tyranny. Livings were presented to 
foreigners who nev^ entered the kingdom, whence 
annates^ first fruits, &c. ; and, by appeals to Rome^ 
justice was obstructed, and the common law 
threatened with subversion t. To remedy these 

* Ki^tott> p, Se64. Tlie B&me author tells iib^ tlmt the natini 
PM MtttidKNl irith «ohism> end all the charities of life deattoyedU 
Palthen Wste indited against their children ; children against 1}ieit 
{METents, hrothen and nd^boim against each other^ and senranta 
iga£|iit ^Mii* suMtin. Jth, Pat a partieular acoooftt of Wieklifie, his 
IbHbwers^ and doctrine^ Bee Knighton^ p. 9644^ et ^e^.-— Walatng* 
ham^ iBsti p. 191, et ^g.— Ypodig. Nenst. p. 531, et #ej.— PbL Verg; 
At$. Hii^ L. 19, p. d99 and 400.— Fox's Martyr, y^. i. p. 654, et 
>^.'^*rfli6iinshed, voL 11. p. 41 li et *tf^.— Speed, p. 589.--Fuller'« 
Chiirdi Hist book 4th.«^Daniei's Hist, hi White Keimet p. 982, 
yt teq. This author, who was a cotirtier under James I., satiricaUy 
t«m^ui:s, that Widdi^'s '' doctrine was very pleasing to great men, 
who embrace sects either through ambition to get, or fear of losings 
or through hatred, ihat they may revenge themselves." K^. C^. 
t^Sgiisof H. 4 and R. 5. 

t Stee Blackstone's Com. v. 4. p. 106, ff seq* Fox gives us ** hotes 
of ihis parliament holden in the 20th yeere of King Edward III." 
when alien cardinals, and oth^ strai^rs who held Uvings in the £ng* 
lidi church, were ordered to depart out of the kingdom ; and this ia 
^ paragraph of these notes-^^' That such aliens enemies as be ad^ 
tanced to liTiugs heere in England (being in their own counizies^ 
shoemakers, taihms, or chamberlains unto cardinals) should depait 
heAsre Michaelmas, and their livings be disposed of to poor English 
jscholars, vol. 1. p. 551 ; see Halle, p. 11. 



INTBODUCTIOH. ^* 

«vaa, several laws had been early enacted j. but as 
they had been always evaded, the statutes of pro* 
ymtSi feremunire, &c. were paasfcd in the reigns &k 
Edward in. and Richard II. * Thd latter mo- 
B«r€h> however, arrested the current agaibit the 
church. When it proceeded to overturn the establish* 
ment, instead of correcting some of its abuses. In. 
tent on infringing popular rights, he was fiiUy sensi. 
bte «f the utaity of the alliance betwixt Church 
and State j arid well knew that, as he had aheady 
loat the affections of the people, the hostUity of the 
cleigy must prove fatal to him. He assisted the 
priesthood, therefore^ in maintaining their ground ; 
and published in their favour, as an act of the Ifc 
gislature, an ordinance of the lords merely, or ra. 
Aer of the spiritual part of them, against the nam 
sect t. He was greatly enraged, too, at the book 
of conclusions, as it was called, exhibited to Par- 
liament against the clergy, for a refomaUon, m 
the year 1395. during his absence in Ireland ; and, 
on his return, compelled some leading men, by 
threats, to abjure their tenets t 

As Henry IV. was raised to the throne by 

• The tot «t.g«n.t papal V«>^^''^ ^^ I'^^^Zs 

Ll^dAe paring rfi* «/«*«» '*'«y*-^'"«'- ^'^•^"•^ 

p. 148. Wh. Ke». ^^-^^l ^ j^ 1816. See CoBimi^ 
t B«nlet's Hist, rf »rf. VoL 1. p. «• «*"»• »"» 

ma ag»inrt tbe LoUards in Holinshad, p. 483. 
+ Hoi. p. 483. Wh. Ken. p. 273. 



v;^. 



66 INTRODUCTION. 

the popular voice, people were flattered with 
the hope of greater compliance with their wish- 
es ; and, besides that the conspicuous part which 
his father had taken in regard to Widdiflb, in- 
duced them to expect a similar predilection from 
him, he had been formerly heard to say, that 
princes had too little, and the clergy too much ♦. 
On that ground alone, an insurrection, instigat- 
ed by a favourite ecclesiastic of the late king, 
who circulated that Henry meant to attack the 
temporalities of the church, was raised against 
him at the beginning of his reign. But he had 
now, as monarch, a different interest, while his 
precarious tenure of the throne, and the state of 
parties, appear to have forced him into fluc- 
tuating policy. He had been greatly indebted 
to some eminent ecclesiastics for raising him to 
the throne t j and their active ascendancy at first 
iieems to have operated strongly in the elections of 

* Grafton^ p. 409. Halle^ fol. llth. Holinshed, Vol ii. p. 514« 
Hayward's Life of Henry IV. p. 254, Ken, p. 277. 

t Thomas Arun^el^ Archbishop of Canterbury^ who had been ba- 
nished by Richard^ was one of the principal conspirators for deposing 
that monarch and substitating Henry. Scroop^ Archbishop of York 
too, and other ecclesiastics of great note, were very instrumental. See 
Hayward^s Henry IV. Wals. p. 358. and 360. Fabian, 7th part, 
p. 153. Holinshed, p, 4d5. et seq. Ken. p. 282. et seq. Grafton, 
p. 398. Fuller^s Church Hist. B. iv. p. 153. This writer is, how- 
ever, a Htde satirical against the clergy, for he does not scruple to 
use these words : *^ Thus, in all state alterations, the pidpit will be 
of the same wood with the council board." All the prdates, &c. emi 
braced the side of the victorious Henry at the outset, except the Bi-& 
^op of Carlisle, who was attached of treason for his speedi against 
the deposing of Richard. See Ful. as to the cause of Henry's pero^s-^ 
cution of the Lollards, p. 155. 



INTRODUCTION* 57 

the Commons. Before the government had acquir- 
ed some stability, and while the deposed Richard 
was still alive, or believed to be so, they only would 
cbuse to stand forward as legislators who had decid- 
edly taken a part in the transactions, and union with 
the prelates was necessary for their safety. This 
accounts for the law which was passed in the 2d 
of Henry IV. agamst the Lollards, being the 
first that authorized the burning of . heretics ♦. 
But in the sixth of the same reign, the Lower 
House, in a parliament held at Coventry, shewed 
itself composed of such opposite materials, that it 
boldly projected the transference of the Church 
property to the crown. The kingdom was at this 
time threatened with war by the Scots and Welsh 
at home, and by the French, Flemings, and Bri- 
tains from abroad ; and though at a parliament 
which had been held this very year at Westmin- 
ster, so unusual a tax had been imposed that the 
two houses thought it expedient to destroy the re- 
cord of it, that it might not exist as a precedent 
against them t, a great supply was still required 
for the public exigencies i and the Commons seized 



* Bumet, Hist, of Ref. Vol. i. p. 45. 

t Wals. Hist. p. 369. " In hoc parliamento concessa fiiit r^^ taxa 
insolita^ et incoKs tricabilis et valde gravis. Cujus modnm presen- 
tibus inseniissem^ nisiconcessoresipsi^et authoresdicti tallagii^ in per- 
petuum lai/ere posteros maluissent : nempe sub elb tantum conditione 
concedebator^ne traberetur posterius in exeniplum> nee servarentur ejus 
evidendte in thesauria regia, nee in scaccario^ sed scripture vel recor- 
dationes ejusdem protinus post datum compotum cremarentur. Nee 
emitterentur brevia seu commissiones contra eollectores vel inquisito- 
res hujus negotii de melius inquirendo." See also Ypod. Neus. p. 561. 



5^ INTRODUCTION. . 

the favourable juncture for proposing a grand 
blow against the ecclesiastical property* 

Both houses had» by way of conference about tjKe 
posture of affitirs^as it would appear^ been assembled 
iOi the royal presence ; where the Commoils com* 
plained. that, while they not only supplied the king's 
necessities against all his enemies^ whether internal 
or external, but exposed their persons to the pti^ ' 
vations and dangers of war^ the clergy did notbim 
for the king» spending their revenues in idle^i^SB 
and sensuality at hontie ) and^ therefore, they pAi- 
posed that the property of the churcbi which wa$ 
a third of the kingdom^ and might affi)rd a revi^ilu^ 
amply sufficient for all the exigencite of govomf 
mevkt, should be approprmted to the Crown. A 
great altercation immediately endued vflth th^ 
spiritualty ; and the primate, in defence of the 
diurch, answered, that the clergy were unjustly Ao 
cused of not supporting the throne, for that tfai^ 
were more liberal in their grants than the laity^ 
frequently giving tenths when the other only gav^ 
fifteenths: that, though their calling prevented 
them from personally attending the king in hil 
wars, they as effectually served him even there, by 
means of their tenants, who took the field in greater 
numbers than those of the laity j and that them- 
selves were in the meantime day and night em-* 
ployed in his service by : imploring the divine fa- 
vour upon all his undertakings. The prolocutor 
of the Commons, Sir John Cheney, (who is said to 
have been once in deacon's orders, but to have 
deserted the church for the camp, and to have 



INTRODUCTION. 59 

been actuated by the feelings of an apostate,) made 
some contemptuous remarks upon the prayers of 
the clergy, which provoked a severe reprehension 
from the archbishop, who told the Commons, that 
no state could stand without religion ; but that 
i^nce piety could not restrain them from so sacri- 
l^ous a project, prudence ought, as they might 
find that the Church could make a powerful re- 
tdstance, and he warned them that, while Canter- 
bury lived, its patrimony should not be wrested 
from it without a struggle. Then approaching the 
king, who had appeared to assent to the proposal 
of the Commons, and falling on his knees, he re* 
minded the monarch of his oaths to preserve the 
church, and of his duty to that heavenly king by 
whom earthly ones reign. Henry desired the aich^ 
bishop to return to his seat, assuring him that he 
had no intention to plunder the church, but would 
leave it greater than he found it. Thus encouraged 
by the assurance of the royal favour and protetion, 
the primate again addressed the Commons, telling 
them that they in vain thought to deceive him by 
veiling their unprincipled cupidity under the doak 
of supplying the wants of the Crown, for that even 
pas* events had sufficiently evinced that it was not 
thepublicservice which they intended to promote by 
such a proposal : that they, and such as they, had, 
under the same pretext, advised the king and his 
predecessors to seize upon the property of the 
small religious houses of French and Norman frians 
within the kingdom ; but that the Crown had not 
been in the slightest degree enriched by such pro- 



60 INTRODUCTION. 

perlyf as these advisers had never ceased to beg 
or extort it till they had got it all : and that he 
woul4 predict, that, were the present sacrilegious 
proposal acceded to, the monarch would not be 
one farthing richer by the year's end. But, con- 
tinued he, ^< sooner will I part with this head from 
my shoulders than that the slighest encroachment 
shall be made upon the church's patrimony." The 
Commons made no reply y but on their return to 
their own house, they were not diverted, either by 
what had fallen from the throne, or by the threats 
of the archbishop, from a keen prosecution of 
their purpose. To oppose every barrier to ^such a 
scheme, the archbishop successfully courted the 
support of the temporal Peers, with whose alliance 
the clergy effectually resisted the project j and the 
Commons having granted two-fifteenths,- under 
condition of its being entrusted to Lord Fumival, 
&c. to be expended on .the particular service for 
which it was required, and having recalled some 
annuities which had been given to individuals 
by the king, affected regret for their sacrilegious 
attempt, and promised not to renew it *• 

In assisting the clergy to repress the schemes of 
the Commons, the Lords are said to have only 
made a return to the spiritualty for supporting 
them in the rejection of bills, both in this and pre- 

* Walsing. Hist p. 371. Ypod. Neus. p. 563. Holinshed^ Vol. II. 
p. 526. Ken. p. 990. Hayward's Hist. p. 354. Cob. PiarL Hist 
Vol. I. p. 295. 

We have in the present grant by the Commons^ a proof of the con- 
dition on which money was so often given. Walsingham states the 
fact without thinking it worth a remark. 



INTRODUCTION. 6l 

ceding parliaments, to resume for the Crown all its 
grants to the peerage, whether during the present 
reign or the two preceding ; but it is easy to per- 
ceive, that they were probably influenced by a 
nearer interest. They had originally patronized the 
WickliflBtes, from the hope of sharing liberally in the 
temporalities of the church ; but the ambition and 
boldness of the Commons, which not only disdained 
to act in concert with the peerage, but by attempt* 
ing the resumption of royal grants *, betrayed an 
indifference about offending them, were calculated 
to alarm that body, and, at all events, to alienate 
them irom any attempt upon church property. 
For, if the Commons were really actuated by the 
selfish motives imputed to them by the primate, it 
is quite evident that the same confidence in their 
own strength which, in attempting the measure, 
made them negligent of co-operation with the tem- 
poral peers, would lead them to anticipate all its 
fruits for themselves; and it cannot be denied 
that, had their confidence in the first been well- 
founded, they could scarcely have failed in the 
last. But the peerage had cause also to suspect 
that the monarch favoured the views of the Lower 
House, and consequently that he intended to dis- 
tribute the property amongst the Commons, which 

* It was quite a common practice for parliament to resume the 
royal grants ; (See Prynne's preface to Cotton's Abridgment of the Re- 
cords, where he gives many instances of it, and refers correctly to 
many authorities) but when the Commons Were grasping so greedily 
at the church property, it afforded no favourable augury of their in- 
tentions towards the Lords that they pretended to be so deeply affect- 
ed by the public interest as to recal the paltry grants from that body. 



6d INTRODUCTION* 

would give that body a preponderance in the state 
equally injurious and dangerous to the pre-eminence 
of the nobility *. 

Henry had the prospect of a grand game^ 
The popularity which raised him to the throne^ 
deserted him the instant it had seated him there ; 
and his government was daily threatened with 
plots and insurrections, which, if successful, would 
not merely have dethroned him, but, in all pro- 
bability proved fatal, alike to himself and his family. 
To prop this tottering dynasty, nothing could be 
more effectual than the distribution of vast pro* 
perty amongst such a numerous body as could 
muster a stren^h ready at all times to crush every 
attempt at rebeUion j for, owing their property to 
a particular family, they could not expect to re* 
tain it upon a change of dynasty, when the au- 
thors of this greatness were branded, and punished, 
as usurpers. The church, however, possessed 
about a third of the national territory; and that. 



* It may be asked by some unreflecting reader^ why Hairy did not 
desire the transference of church property to the crown^ that he might 
retain it ? But the answer is obvious : he knew that it was utterly 
impracticable. The church was not only powerful in itself^ but, ac- 
cording to the highest computation which appears to hare been made 
of the Lollards, had about half the kingdom to support it Its pro-, 
perty, therefore, could not have been taken without a violent shock ; 
and though the Commons were anxious to give it to the Crown in trust 
for themselves, that it might be distributed amongst them, they would 
have probably joined the ecclesiastical body in recalling it, had their 
hopes been disappointed ; at all events, the king never would have 
been supported in what, by giving such an overwhelming preponder- 
ance to the crown, threatened the whole community, and then inevitar 
ble ruin must have awaited so foolish a step. 



judiciously distributed, promised to establish t])0 
present dynasty beyond the fear of fall. Though 
this view has not been ascribed tp Henry, some 
parts of his conducti as well as the. proposals of* 
the Commons, vrhich were afterwards more syste- 
matically made, indicate that he bad entertained 
it, and only protected the church when he per- 
ceived the impracticability of plundering it« There 
had been a statute or ordinance passed in the 46th 
of Edward III. A. D. 1372*, to render lawyers 
ineligible to the Lower House, on the ground that 
<< they procured and caused to be brought into Par-* 
liament, many petitions in the name of theCommons, 
which in no wise related to them, but only to the 
private persons with whom they were engaged ;" 
but it does not appear to have been acted upon 
till Henry, upon summoning the parliament in 
question, directed the writs, with a clause of noUu^ 
mus, against the election of that class, alleging that, 
at the previous parliament, the lawyers had need* 
lessly protracted the business t. However the 

* See late Pub. of St. of the Realm. Prynne was at pains to prove 
that statutes and ordinances are synonimous. But it was unnecessary, 
18 both are acts of ^e legislature. 

f This parHament was styled in derision the Parliamenium Itidoc" 
iortan, Wals. Hist. p. 371. Ypod. Neus. 563. Walsingham men- 
tions only the shires in speaking of the clatise of nolkimus ; but Ho- 
lin&ed mentions cities and towns also. Vol. 9d. p. 596. Sir £d. 
Coke, 41ih Inst p. 10, alleges tiiat Walsingham was deceived, for 
that there is no such clause in the writs; and that the matter 
was accomplished by letters directed to sheriffs, &c. by pretext of 
an oidinance in the Lard's House, 46th Ed. III. But Prynne, 
by quoting the words of the writs, proves that Walsingham was 
correct ; and he properly shews, at the same time, that the 46th Ed. 
III. was not an ordinance of the Lords, but an act of the legislature. It 



64 INTRODUCTION. 

interests of the clergy, and of the legal profes- 
sion, might occasionally clash, there were many 
strong bonds of connection between thenu The 
extent of the church property, under the domi- 
nion of a body who were actuated by the spirit of 
a corps, gave the clergy great influence over the 
lawyers, in the way of employment, during an 
age in which there was so limited a field for ta- 
lent and enterprize. In more ancient times, many 
of the clergy not only acted as barristers *, but 

k curious^ however, to observe, that while Prynne is mercilessly cor- 
recting Coke^ he has fallen himself into a very strange blunder, for he 
ascribes the taxa insolita et tricabilis to the Parliamentmn Indocto- 
nmi; and,after citing Walsingham'swords about excluding the lawyen^, 
he proceeds thus, " to which he sulgoins in his Ypodigma Neustric^ 
this observation : In hoc parliamento conoessa fuit regi taxa insolita, 
&c." Now the passage in the Ypodigma is an exact transcript of one 
in the history upon that very subject ; and had Prynne done more 
than just turn up the book for this insulated point, it is inconceivable 
that he should not have observed this, and also that the unusual tax 
was granted by a parliament held at London or Westminster, while 
the tax by the lack-learned parliament (which was held at Coven- 
try) is quite an ordinary one, and distinctly specified. Prynne's error 
is the more strange, that Holinshed and other historians who tran- 
scribe fix)m Walsingham, do not fall into it. But it is curious that 
^ Whitelock had committed the same mistake in a speech which he has 
preserved in his Memorials, p. 431 : As his object was, however, by 
that speech to dissaude the long parliament from rendering lawyers 
ineligible, it is possible that the error was a voluntary one. He states 
that Henry adopted the measure because he knew that the lawyers 
would oppose any extraordinary grant of money ; but that class are 
not commonly so very patriotic I presume that Prynne derived his 
error from Whitelock ; or that, as Prynne's works are numberless, 
Whitelock may have scraped it from some of them. N. B. The part 
of Prynne's works alluded to is his preface to Cotton's Abridgment 
of the Records. 

* Henry, Vol. VIII. p. 189. This author ascribes the statute 4S £. 
III. which rendered lawyers ineligible to Parliament, to the disgrace into 



iWTRGDtJCTIOK. 65 

members of that profession were frequently pro^- 
moted to the various judicial, departments*, while 
the greatest legal office was still invariably bestow*^ 
ed upon an ecclesiastic f . Independently of these 
circumstances, it was, obviously, the interest of 
the lawyers to protect the church, in order that 
they might, by its assistance, occupy a respectable 
ground against the aristocracy — ^particularly, as 
from their own inability to serve the prince in a 
military capacity, they could not expect to derive 
any advantage from the ruin of the establishment. 
Hence a strong inference arises that Henry was 
anxious, on account of their predilection, to exclude 
them from a voice in the decision of so important 
a point. When, along with this, it is considered 
that he heard the proposals of the Commons with 
apparent assent, the idea acquires great confirma- 
tion. But, then, the church was powerful enough 
to make a desperate struggle, and the temporal 
peers having been alarmed into a junction with 
the spiritual, the measure could not have been at- 
tempted without the most tremendous convulsion, 
nor, as the upper house refused its assent^ without 
violence to the first principle of the government. 

With Henry's situation, half-measures were in- 
compatible, and having declared against a measure 

whidi the profession was brought by the chivahrous spirit of the age^ 
so that few men of probity and credit would enter into it^ Vol viii. 
p. 148. For this he quotes Cart. Vol. ii. p. 482. But a very differ-* 
ent reason is assigned for their exclusion in the statute itself; and the 
Tery circumstance of their having been so often elected^ is the moat 
irrefragable proof of their general respectability. 

* 2d Inst. p. 264. t Henry, Vol. x. p. 76. Vol. xii. p. 227, 

roi« I. F 



66 JJiTfWVCTWH. 

whjfcb appeared to have been visiomry, he eodfik 
veured to caneiUate the clefgy» m^ efl^ted to 
testify hm abhorrence at the projeot, by pefMr 
eutiog the Ii>Uard$ *• Bpt the faUwe of om %k^ 
tempt, and the aood^uct of the hmg, did not de« 
ter the Commons from a seconds in the eleventh 
of the same re^n» when the project was leduoed 
to a more regular form. Xn thejr hill, intro- 
dibeed by Sir John Oldpaatlei Lord Cobbami. a 
proceeding which created mch animosity against 
him. on the part of the. clergy as afterwJ^ds 
brought him to the atake fs the Commons ai^ 
Ibrth tbafe, while the laity sustained the burthens 
and dangers of the wars, the revenues of the 
church, were lewdly spent by bishops, abbots, and 
priors, &$g< bat that those revenues might be owr 
ve0^ to better purposes, and ought, therefore, 
ipitibk that view to be transferred to the king ; — that 
(^ Qf them fifteen earls, fifteen hundred knights^ 
and ^^ thousand two hundred esquires might be 
created w^th ainple revenues, while, from the same 
source fiile^ thousand parish priests,, who would 
m^re regulojrly perforni the duties of their sacred 
funetion than the present clergy, might be ad^ 
gjvat^y snpjported, aijid a. clear revenue besides of 
1^1^,000 per aunnm be reserved by the Crown. 
This attempt was equally unsuccessful with the 
former, afnd Henry is said to have gratified the 
clergy by checking the Commons for their sacri- 
k^gidu? pco^ect, and refusing a biUt for the abr<^ 
gatioB, or, at leaat, mitigation of the statute passed 

* Fox's Martyr. Vol. I. t Pari. Hist. Vol. i. p. 310. 



INTRODUCTION. &f 

in the 2d of his reign against heretics, declaring 
that be wished the law to be more severe j and also 
another to have clerks convicted erf' crimes com- 
mitted to the king's prison instead of the bishop's, 
from whence they were often allowed to escape ** 
In spite of this second failure, the Commons made 
a tliird and last attempt in the next reign, — only 
four years posterior to their former. Their perti- 
nacity, together with the suspicions which the clergy 
entertained of the young king's propensities, dread- 
folly alarmed that body : " the fat abbotes swet," 
says Halle, " the proude priors frouned, the poore 
friers cursed, the sely notines wept, and al together 
wer nothyng pleased nor yet content t." To di- 



• Wals. Hkt. p. 3T&. Ypod. Neirtt. 670. HoL Vol. ii. p. 53«. 
Fabian's Chron. 3d part. p. 189. Keftnet^ p. 99d. Pari. Hist. Vol. I. 
p^ 309. In t^is last^ aii error of Rapin is eorrected^ who says that 150 
instead of 15 earls were specified as capable of being created frdm that 
fond; and it is observed that Rapin quotes Walsingham fat his 
aatlMxrity^ who distinctly states fifteen^ and that the funds were to-' 
tally inadequate to 150 at the rate proposed. But the fact is^ that 
H^inshed fell into the same error^ and that Rapin had derived his 
information itora him instead of th^ original. In giving an account 
of tJie bill brought into parliament in the 2d Hen. V. however, Hol« 
indied correctly states fifteen. 

1* Halle, H. 5. fol. 4. This author is too severe upon the monkish 
ecclesiastics. ^' You must understande/' says he, " that these mo- 
nastieall persones, lemed and unliterate, better fed than taught, toke 
on them to wryte and regester in the boke of fame, the noble actes, 
the wyse doynges, and politike govemaunces of kynges and prynoes, 
in whiche cronographye, yf a kinge gaue to them possessions, or 
graunted them liberties, or exalted them to honor and worldly d^i- 
tie, he was called a saynct, he was praised without any desert aboue 
the moone, hys genealogie was written, and not one iote that might 
exalt his fame was ether forgotten or omitted. But if a Christian 
prince had touched their libertif^, or claimed any part justly of their 



V 



68 IKTRODUCTIOy. 

vert the country from such a plan, the archbishop 
advised the king in open parliament to assert his 
right to the French throne ; and the device, hap- 
pily according with the warlike bent of the mo- 
narch, as well as dazzling the people with the pros- 
pect of such an extensive foreign conquest, with- 
drew public attention from the project of plun- 
dering the church, and the measure was never agi- 
tated again *. 

possessions^ or wonlde haue intarmitted in their holy frandiesei^ or 
desired ayde of them against his and their common enemies ; then 
tongaes talked and pennes wrote that he was a tirant, a depressor oT 
holy religyon, an enemy to Christe's chnrche and his holy flocke^ and 
a dampned and accursed persone with Dathan and Ahiron to the depa 
pitte of HeL Whereof^ the proverhe hegan^ geue and he hlessed^ 
take away and he accursed." Hen. IV. fol. 11. Had the author 
looked a little ahroad into the conduct of other classes^ he would have 
had more charity for the poor monks, 

* Holinshed^ VoL ii. p. 545. et seq. Ken. p. 312. et seq. Pari. 
Hist. Vol. I. p. 324. et seq. See also Fox's Martyr, ahout taking 
the temporalities of the church. There had heen publications to that 
effect. Vol. i. p. 711. After the conviction of Sir John Oldcastle, 
(ccnnmonly called Lord Cohham by courtesy, in consequence of hi& 
having married the heiress of that family,) which took place in the 
1st H. 5., there was a slight insurrection in his favour, which gave* 
a great advantage to the ruling; party. Wals. Ypod. Neust. p. 576 & 
577. For an account of Oldcastle, see Fox's Martyr. Vol. I. See 
also Howel's State Trials, Vol. i. 

. The clergy laboured to alarm the prince, and also the nobility, intO' 
the belief that the Lollards would have aU things in common ; at all 
events, that the measures of that sect would disorganize society. This 
appears particularly from the charge against Wickliffe of his having 
had John Balle as a precursor, and from the ordinance of the Lords, 5 
R. II. which was obtruded upon the nation by that king and hia 
clergy as an act of the l^;islature ; wherein it is said of the Lollards> 
'' these persons do also preach divers matter of slander, to endanger 
discord and dissention betwixt divers estates of the realm, as well spi- 
ritual as temporal, in exciting the people to the great pearl of aU 



INTRODUCTION. 69 

We have been the more particular in relating 
this plan of seizing upon the temporalities of the 
church, both because it gives an insight into the 
springs of action under the most momentous circum- 
stances, and because it completely disproves the 
view taken by Mr. Hume, of the estimation in which 
the Lower House of Parliament was held at this 
period* That branch of the legislature which could 
have the boldness to conceive, and the spirit to per-r 
sist in such revolutionary schemes, was unquestion- 
ably not devoid of influence, or unimportant in the 
constitution. 

The doctrine of Wickliffe penetrated into other 
countries, particularly into Bohemia, where it dif- 
fused itself widely in spite of every effort to sup- 
press it, . even by the way of croisade at the insti- 
gation of the Pope ; but in England, as the aris- 
tocracy renounced all concern for it, when they 
despaired of obtaining the temporalities of the 
church, and as the new sect were exposed to se- 
vere laws and violent persecution, it declined till 
similar tenets were revived in a new form under 

the realm; — ^they maintain their errors by strong hand and by 
great rout." See late publication of statutes of the realm^ Vol. ii. p. 
25^ &c. But it is needless to multiply authorities. As Oldcastle, 
miio brought the bill into parliament against the clerical property in 
the 11th of Henry IV., sealed h^s faith with his blood, it may fairly lie 
concluded that he was actuated by pure principles ; and an inference 
may thence arise in favour of his coadjutors ; but they, far from giving 
a similar testimony in their own favour, deserted their creed when 
they could not carry their measures, and he, in all probability, acted 
as much from the conviction that he never could accomplish his ob- 
ject without holding out such a bribe to the laity, as &om enmity to 
the possessions of the church. 



70 INTRODUCTION. 

Henry VIIL The human mind is so moulded by 
the circumstances in which it is placed, and so 
readily imbibes the current opinions, ih^ if a 
change in religion do not proceed rapidly^ it com- 
monly fails. The doctrine becomes antiqtutted ; 
zealots meet with no encouragement from pubUc ap- 
plause ; and persecution, which in the biirst o£ en^ 
thusiasm, would have created proselytes by at- 
tracting a generous sympathy towards the martyrs, 
and consequently arming them with every senti- 
ment that inspires fortitude under su^ring, comes 
then accompanied with all the freezing feelings of 
general reprobation and despair of the cause* ! 
- Tlie powers with which the clergy were armed 
by the legislature^ for the suppression of heresy, 
enabled them to extend their authority, by con- 
founding legal exertions against their usurped pri- 
vileges, Mth attempts to disclaim the jurisdiction, 
and impugn the soundness of the church \ and 
their arrogance, rapacity, and oppression, seem 
to have been almost unlimited *• The charge of 
heresy was resorted to against every one who de- 
nied them the most profound reverence, or resisted 
their unjust demands ; while their pleas of sanc- 
tuary and of clergy obstructed the criminal jus- 
tice of the kingdom. Every reader of history 
knows, that the clergy tried to exempt, not only 
their own body, who were actually in orders, but 
all who could read^ and demand the privilege of 



* Halle; 188. Holinshed^ 911. One priest had often ten or twelve 
beneficeB. 



imnMWxrwK. 71 

that sacred chm, from the ordiiiafy juriadictioti ; 
and the alftritiing heigbt td which d»eir insoledce^ 
and the privilege pleaded by theto^ were carried^ 
are esett^piUfied in what occurred duraig the reigi^ 
ot Henfy VIII. In ike preceding reign^ a statute 
was devised to draw a distiikctimi faetweeii nser^ 
lay Boholws) or men who could read, and ctefkit 
adtuadly hi orders ; by which the first were slid)- 
jedt^ to a Blight pumsfament fo^ crimes^ ^Lnd pre* 
venteid ft&sa plea^ng the benefit of ^rgy a se^ 
cend tHue ; but t^ act did not pass widioitt cen* 
sute fibm th^ church. By the 4tfa Henry YIIL 
c. S. the heixti&t of clergy was denied t& murder^ 
ers and robbed who were not in hdy orders; bid; 
tiie law was ^o deeply resented by the priesthood, 
dtait fliey p^Miely branded it '< as an act oobtrary te^ 
Hie law ^God and to the liberties of tiiie holy 
ehwch ; and it was tnaintained tkioA all who had aa* 
sented to it> as well spiritnal as temporal persofis^ had 
locttrred the censures of the ehttreh*/' The case of 
Richard Hixnne, a mei^ch^nt taylor in Jjoodexa^ im* 
ivtg the same reign, aSbrds a melancholy proof of the 
use they made of the power with which thqr^ had 
beeii enftrtiMed for the e^^tirpating of herelsy. He 
had been questicHfied by a clerk of Middlesex for d 
mortuary pretended to be du& for a child of bis 
that had died at five weeks old ; and as he reseif- 
ed the demand, he was sued for the mm beibre the 
ecclesiastical court. In this predicament, he etmh 

* Burnet^ Hist, of Ref. vol. i. p. 21, efseq. Book I. 



72 ^ INTRODUCTION^' 

suited counsel, who advised him to prosecute th€ ' 
clerk in a premunire for bringing him' before a 
foreign court, which the spiritual court Uienwas^ 
as it sat by authority from the Pope's legate. A 
measure which struck so sensibly at the preten- 
sions of the priesthood, provoked them to such a 
degree, that they immediately attacked Hunne on 
a charge of heresy, and imprisoned him in the 
Lollards' tower. The poor man was soon found 
strangled in jail; and a jury having sat on the 
body, acquitted it of suicide, and charged the ser- 
vants of the clergy with murder j but the verdict 
did not restrain the clergy from showing their pi- 
tiful malice upon the corpse. They sat in judg- 
ment on it ; and having convicted it of heresy, 
delivered it over to the secular power to be burnt 
-^a ceremony which was performed with all so- 
lemnity in Smithfield ; and they, at the same time» 
abused the jury as false, perjured caitiffs, and in- 
terposed with the king to prevent an inquisition 
into the murder *. These proceedings, while they 
evince the extravagant pretensions and atrocity 
of the clergy, also, in the train of events, proved 
their folly. The Reformation by Luther soon 
began to convulse Europe ; and circumstances 
of so crying a nature roused the attention of 
Englishmen, while the nobility and gentry, who 
complained grievously of the extortions of ecclesi- 
astics t, were ready to embrace an opportunity to 

^ Burnet^ Hist, of Ref. p. 24, et seq. 

t Halle, p. 1880. Strype's Ecclesiastical Memorials, vol. h p* 189. 



INTRODUCTION. 73 

compensate their losses by a general plunder' of 
the establishment. 

Henry had early, by his polemical writings 
against Luther, distinguished himself as a cham- 
pion of the churchy and been complimented by 
his holiness with a rose, &c. and with wliat he va« 
lued more dearly, the title of Defender of the 
Faith *. But enraged afterwards at the shuffling 
policy of the Pope in regard to the lawfulness of 
his marriage with his brother's widow, he cast off 
the Romish yoke. The measure accorded with 
the views of a great part of the kingdom j but of 
these a large portion were as yet incapable of re- 
nouncing the tenets of that superstition which was 
entwined with all their dearest principles ; and 
even the wisest men were startled at the idea of 
any national change of religion,' on account of its 
political consequences, of which the previous his- 
tory' of mankind could not afford great assistance 
in predicting the issue, though it warned them 
against the attempt. Of the favourers of refor- 
mation at the outset, the larger portion were ra- 
ther actuated by an aversion to the clerical ascen- 
dancy and exactions, than by the fervour that soon 
took possession . of them ; and they followed the 
opinion of lawyers, who maintained that the king, 
in asserting his supremacy over the church, mere- 
ly resumed the ancient right of the crown. 

* Bumet was of opinion that this hook was not composed hy Hen- 
ry^ though he had the meanness to take the credit of it. See Part 
III, Book 3, vol. V. p. 295. Pope Leo wrote to that Monarch, " lihat. 
it appeared the Holy Ghost assisted him in writing it. P. SO, vol. r. 



74 INTBODUCTION* 

The fiulure of Wicklifie's attempt at reforma- 
tion had thrown such an odium upon his doctrine^ 
that, on ihe second dawn of a mote libend era, 
people were deterred from recurring to hk tenets, 
and therefore regarded the Saxon reforms, who 
followed his great precursor in England at a vast dis* 
tance, as the original apostle of true religion towhom 
they must look for instruction. Luther began with 
attacking the sale of indulgences, and, at that time, 
entertained no idea of impugntitg the papal aupre* 
macy. It was only after mUch ill treatment that 
he conceived the boldiless to inquire into the HA* 
ture and origin of a power which exacted sudi 
unlimited dominion over the human mind $ and, 
even then he proposed to submit all his dilutes 
to the decision of a general council *. When that 
was denied him, he indeed renounced the esta* 
blished church ; but he never abandoned the fQn<» 
damental points of doctrine in which he had been 
bred. The corporeal presence of Christ in the sa* 
erament, the efficacy of images, &c. were amongst 
his favourite tenets ; and the church which he 
jfounded retained the same principles. That por*- 
tion of the English people who considered Luther 
the genuine author of reformation, and still clung to 
the old doctrine, were alarmed at the idea of 
any spirit of inquiry going abroad^ and disposed 

* Moeheim gives the best account of Luther ; but he wishes it to 
appear that the reformer had a nice distinction about a council^ which 
should be (tf the universal^ and not of the Pyish church. But the 
Popish was then the only Christiaii church, except the Greek, which 
Luther surely never meant to appeal to. 



INTRODUCTION. 15 

to support the government in repressing it. In- 
deed such a result was the natural consequence of 
the intcderance of each sect in that age, however 
limited in number : for each, as it arose, conceiv- 
ed itself entitled to obtrude its creed, by every 
means, upon the rest of the community ; and they 
who were in power could not be greatly condemn- 
ed for acting under the dominion of principles 
whii^h they were daily taught by all parties. Those,* 
who regarded the first movements as merely intro- 
ductory to a purer system, would also be inclined, 
though ibr^a different reason, to adhere to the 
crown, lest Henry, as the head of the reformation, 
should, by ill-timed contradiction, be provoked in- 
to a relapse — ^when, from the larger number of the 
Catholics, he might, by joining with them, yet 
crush the attempt to depart from the corruptions 
oi former times. Even the prudent part of the 
Catholics themselves, whose zeal would make them 
conceive the present heresy to be temporary, would 
be cautious in offending the king, lest they should 
irritate him into throwing himself yet more up- 
on the adverse party, when, in all likelihood, 
greater changes would be contemplated, and a re- 
turn to the ancient faith, which was still held up 
to reverence by the retention of so much of its 
doctrine, and many of its ceremonies, might be 
rendered almost impracticable. 

But many circumstances connected with the 
former attempt at reformation, and the late effects of 
religious innovation on the Continent, had contribu- 
ted now to inspire fear and amazement. The opi- 



76 INTRODUCTION. 

nions of Wickliffe had penetrated into Bohemia 
about the close of the fourteenth century ; and un- 
der the auspices of John Huss, who was burned as 
a heretic in 1415*, had diffused themselves widely. 
The Hussites, for the new sect was known by 
that name, divided themselves ifato two parties, — 
the one called Calixtines, from their insisting upon 
the cup or chalice, in the celebration of the Eu- 
charist, — ^the other, Taborites, from the name of 
a well known mount in sacred writ f : The first 
are represented as having been gentle in their 
manners, and modest in their demands } the other, 
as the wildest enthusiasts, whose conduct threaten- 
ed the dismemberment of society. The Taborites 
expected that Christ would descend in person 
with fire and sword to extirpate heresy and purify 
the church. " It is," says Mosheim, " this enthu- 
siastic class of the Hussites alone that we are to 
look upon as accountable for all those abominable 
acts of violence, raping, desolation, and murder, 
which are too indiscriminately laid to the charge 
of the Hussites in general, and to their two 
leaders, Ziska and Procopius in particular. It 
must, indeed, be acknowledged, that a great part 
of the Hussites had imbibed the most barbarous 
sentiments with respect to the obligation of exe- 
cuting vengeance on their enemies, against whom 

* See Mosheiin^ toI. iii. p. 406^ et seq. Lond. edit. 1811^ for an ac- 
count of this reformer. He owed his deaths in a great measure^ to his 
having embraced the side of the Realists in their absurd disputes with 
the Nominalists^ which were carried to the most extravagant height* 

t Id. p. 448-9. 



INTRODUCTION. 77 

they breathed nothing but bloodshed and fury, 
without any mixture of humanity or compassion ♦. 
The emperor Sigismund, having succeeded to the 
throne of Bohemia, attempted to suppress them, 
and^n the year 1420, they flew to arms, when the 
acts of barbarity that were committed on both 
sides " were shocking and terrible beyond expres- 
sion ; for, notwithstanding the irreconcileable op- 
position that existed between the religious senti- 
ments of the contending parties, they both agreed 
in this one horrible point, that it was innocent 
and lawful to persecute and extirpate with fire and 
sword the enemies of the true religion ; and such 
they appeared to be in each others eyest/* Not to 
mention other insurrections in later times, we 
shall only advert to the wild and horrible commo- 
tions in various parts of Germany, where the pea- 



* Mosh. vol. iii. p. 450. The author has added a note to the 
text^ in which he says^ — '^ From the following opinions and maxims of 
the Taborites^ which may be seen in the Diarium 'Husstttcum of 
Byzinius^ we may forma just idea of their detestable barbarity: — 
' Omnes legis Christi adversarii debent puniri septem plagis novissi- 
mis^ ad quarum executionem fideles sunt provocandi. — In isto tempore 
ultionis^ Christus in sua humilitate et miseratione non est imitandus 
ad ipsos peccatores^ sed in zelo et furore et justa retributione.— In hoc 
tempore ultionis^ quilibet fidehs^ etiam presbyter^ quantumcunque 
spiritualise est maledictus^ qui gladium suum corporalem prohibet a 
sanguine adversariorum legis Christi^ sed debet manus suas lavare in 
eorum sanguine et sanctificare/ From men who adopted such hor- 
rid and detestable maxims^ what could be expected but the most 
abominable acts of injustice and cruelty?" 

+ Id. p. 447. A great number of other sects arose^ or still maintain- 
ed their principles about this time^ in different quarters of Europe. 
P. 461. et seq. 



78 INTRODUCTION. 

santa, rendered desperate by oppression and cruel- 
ty, rose in a body, declaring themselves unable 
longer to submit to their condition. But» as 
might have been expected of men whom oppres- 
sion had kept in ignorance, and cruelty made fe» 
rocious, they were incapable of adopting measures 
calculated to secure the rights of humanity in fu- 
ture, many of them vainly imagining that their 
safety depended on extinguishing the rights of 
prc^erty with all established institutions,*— a result 
to which they were led by deducing all their evils 
from these sources. To complete their misguided 
fury, religion mingled with their other passicms, 
and was carried to the highest pitch of fanaticism 
—- *a circumstance which cast obloquy on the cause 
of reform, and alarmed princes and the higher ranks 
throughout Europe *. Of this the Catholics did 
not fail to make a proper use, their cry, according 
to Bishop Jewel, who flourished in the beginning 
of Elizabeth's reign, being " these men,** meaning 
the reformers, " be rebels, they would have no 
' magistrates, they would have all things in com* 
mon. Behold what they have done in Helvetia ; 
behold what they have done in Germany. Look 
out your Chronicles ; you shall find all the up* 
roars and seditions which have been these forty 
years stirred up by some of them t." Under the 

* Mo8h. vol. iv. p. 64. et seq,; 423. et seq, 

t Jewel's Works, Ed. 1611. p. 178. Wolsey, in his kst moments^ 
b^n dn exhcnrtation to take heed of the Lutherans, by the example of 
these oi Bohemia, lest they should likewise subvert the secular power. 
Herbert, p. 148. Halle says, that 100,000 rose up in Germany, f. 
142. 



^ 



IMTKODUCnON. ^ 79 

ioflucnice cf such panics, and observing that new 
sects daily sprung up from the lower classes, while 
each teemed with mortal intolerance towards all 
others, as if it derived exclusive authority from 
beaven}~>the higher ranks, who were impatient 
at the papal yoke, were much disposed to trust 
the rcformatioi^ to the government, particularly to 
the king, a» its head as well aa leader of the refor* 
matioD, a»fd to strengthen the executive, that it 
might direct the current, lest the spirit of fanati* 
eism^ eixierging in a variety of shapes^ should, with 
the fuiy of a hurricane, sweep before it all the 
established orders of society ** 

The aristocracy mem^ at the outset* to have 
meditated the plunder of the church, and delu- 
sive hopes as to exeipaptions from tithes encouraged 
many in $dl classes to proceed with the great work 
of refwmation. The aristocracy were not disap- 
pointed : For the religiojus houses being dissolved, 
the larger portion of the immense territory be^ 
lofiging to them was either given away by the 
king to favourites, or sold at low rates to the no- 
bility md gentry of the several counties. This, 
at once, bound men of greatest influence to the 
inteiest of the crown, and obliged them to sup- 
port the measures proposed to them from the 
throne, lest, before their rights were confirmed by 
time, the sovereign should be provoked to throw 
himself back into the arms of the Catholics, and 



* The FitpistB allied that there were no fewer than 34ft sects in 
Genaany. JeweTs Works, p^ 4ML 



80 INTRODUCTION. 

with their assistance recover for the church th^ 
property of which she had been plundered. 

Opposition was to have been expected from the 
clergy; and from their numbers in the upper 
house of parliament, it might have retarded the 
grand change. But an advantage was taken of 
them, which reduced them to the necessity of ac- 
quiescing in the first movements ; and by such 
means, not only brought them more under the in- 
fluence of the crown in all subsequent measures, 
but taught them the folly of contending with the 
stream. Wolsey, as he had violated the statutes 
against purchasing bulls from Rome, by those for 
his legantine power, which he had exercised for 
years, had incurred a premunire, for which he 
was prosecuted ; and though he might have alleg- 
ed, with truth, that his royal master had instigat- 
ed him to that very proceeding which he now so 
severely visited in the form of law, he more pru- 
dently pleaded ignorance of the statute, and sub- 
mitted to the royal mercy. He was, by sentence 
of the court, declared to be out of the king's pro- 
tection, and to have forfeited his goods and chat- 
tels, and even his personal liberty. But Henry 
retained some kindness for his former favourite, 
and allowed him to retire with the means of sup- 
porting a splendid establishment*. The blow 

• Herbert^ p. 124, et seq. See in p. 124 an account of the Cardi- 
nal's splendid furniture. Burnet, vol. i. p. 146, et seq. Lord Burg- 
ley, in a State Paper to Queen Elizabeth about favourites, says of 
Wolsey, that he had a family equal to that of a great prince. There 
were in it one Earl, and nine Barons, and about a thousand Knights; 



INTBObUCTION* • 81 

against the cardinal was fbllowed up by anoth^ 
against the whole clergy^ as accessoryto his crime^ 
by submitting to his usurped power. Having- been 
regularly convicted, of this offence, they submitted 
to the king's mercy j and Henry availed himself 
of his situation to exact rigorous terms for sealing 
their pardon : 1. That the two provinces of Can- 
terbury and York should pay into the Exchequeif 
£118^840 — an immense sum in those days; and 
that the whole clergy should acknowledge him to 
be sole, and supreme, head of the church under 
Christ: The first condition was instantly complin 
ed with ; but . the * second was demurred to, the 
clergy contending that a layman could not be pro- 
perly styled the head of a spiritual establishment^ 
till the king told them that he claimed the title 
only in so far as it: was agreeable to the word of 
God ; and, with that qualification, they assented. 
In a year or two afterwards, however, he obtained 
a confirmation of his title, both in parliament and 
convocation, without the qualification *. The spi« 
ritual peers out-numbered the temporal ; but the 

and^ (Burnet^ vol. v. p. 36^) this is confirmed by his defence^ as pre- 
served by Godwin. Rer. Ang. Annal. lib. i. Ang. 1529. In perform- 
ii)g divine service be bad even dukes and earls to give him the water 
and the towel. Burnet, Hist, of Ref. vol. i. p. 35. The practice o£ 
great men having the sons of good, nay of the highest families as ser« 
vants,.wias quite common. Mr. Gait, in bis Life of Wolsey, p. 160. 
has fully shown the error of Mr. Hume on this subject For an 
account of Wolsey's fall, &c. see Strype's Ecclesiastical Memorials, * 
YoL i. c. 15^ and 16. What a fall to the cardinal; his household re* 
duced 80 low as to about 160 ! Herbert, p. 147. 
.' * Herbert, p. 151, et seq, Burnet, vol. i. p. 204«, et seq, Neal's 
Hist, of the Puritans, vol. i. c. i. ... 

VOL. L G 



9i INtUdDUtft^^. 

bi9h6|)S) d<!;cordittg to BurtiM, weti^ ^Itmys much 
$st Ih^ king's devotion, Md thmgh there wsite 
twenty-six parliament^ty dbbots, utid two priors^ 
they ^ald not alM<e uri^e^t. the current, while all 
thek hopes now depended ^n pleasing the king. 
Had, howev^er , the i^rpiritual peers remained united 
in ^f m opposition, the effect c^uld only have been 
t^i^rary ; ds, besides being probably molested 
with penal laws for ^Mortions> &e, ^hidk they 
jiistified by pi^gcription^ the creation of a few 
t&B^Tti peens would have ^ven a prepondemnce 
agciin^t theili> when their iH-judged and unavaiU 
ing attempts t^o contend with the other br^ches 
^ «1^ legislatut^ would h%iv^ been productive of 
a gr^Mier^ than they had any cau»e to anticipate. 
Wolsey) that he tnigbt render himself inemor- 
4ble tis a patron •of learning, and founder of bi- 
shoprics, ^s well as enlai^ the royal power over 
^1 ¥e]igiOu^ ^i^blishraents, used his great influ*** 
enfee ^t •btoe tin^e with the pope to obtain a bull 
ftfr suppressing a lew monasteries, on the condition 
rf still ^obVettii^ the property to pious uses ; and, 
as a pretext was necessary, he visited those en- 
dowments by virtue of his legantine power, said 
attaclied to them charges of immorality, whichi 
l^ened the road aflerwai^s to their total suppres- 
sion*. Some petty houses were by him suppressed, of 

' . * BarnA, f^Si» Hatot, lOd* This lau&or my^ ihat Uie car« 
dhial ^ko&w iMit wmdA fletsae ^e king, who b^n to diink that 
rdigioiu peraons might Mrve Qod as Well hy fightmgfor &e kkigdntt 
as pniyuig fdr it, '«o he assured himaelf Ihe autliority thereof would 
he denyed on hhn dueflj^ and the pope, in 4kt maantime, ohnoBioai^ 



INTBOnUCTIOK. 8S 

wbith the property was employed towards founding 
colleges. But^ when the Reformation had fairly be- 
gan, the plunder of the m<»ia6tio establidnmente 
wm fully determmed on : and as it was expedient 
to repeat the charge of immorality, visitors were 
appointed to inspect the morals of these houses. 
That the visitors deserved well of their country, 
for exposing the false miracles by which a credu- 
lous multitude had been deludeci, may readily be 
granted ; but we ought to hesitate in giving our 
assent to the report of the l>orrid crimes which 
men interested in the ruin of the^e endowments 
pretended to have -discovered within their walls. 

vbife be coi]]4 OQt l>at f#ar }iqw £»r these innoviUaoiiB nri^ht eft/^}\i/' 
^txjpe's £cdesia9tical IVlemorials^ VoL i. B. I* c 14. Gcdwin ascribes 
the oBrdinaFs fall to his sacrilege in dissolving these petty hoases, 
icnttj in owuber^^-Hia^nlofpe whidi vas alleged to have been a^rerely 
tinted on aU concerned iq it* The fbllowing i^ 4 curioui pafi8i||(e 
from that writer. " Negotium hoQ (ut non^v^li animadverterunt) 
tanquara aurum Tholosanum> omnibus qui iUnd attigisset, aut per- 
nidem aut sultem tnmimas calamitates attuliase credltar. De Papft et 
<^di]iidi post dicetw- V% mioistri^ auteni quinque qnonwo opera h|c 
usus est in tot piorum hominiim dpnariis interyerjtendis^ erenit postea 
nt duobus dneBo decertantibus alter alterum oecideret^ et homidda 
0i9spei]dJ« plecteretur, tertias in puleum ae dederit prteeepite^n ac 
spontanea morte subm^rsus perieidt: qnigrtus^ homo opulentos^ ad 
earn c^estatem devenerit^ ut victum ostiatim emendicare ante obitum 
cogeretur^ alius denique Doctor quidam Alanus ^ui authoritate inter 
e«gterDB prmpon polbbat> quo tempore archipiscopus Dublinensis }n 
Hibemia agebat, ab ininucis crudeliter confossus periit. Utinam his 
et simjlibus exemplis edocti^ discant homines^ res Deo semel conse- 
cratas timide attrectare. Si istos justitia divina tam severe puniit^ 
qui boDa ecclefue dicai» ud parumaanct^ administiata^ ad usus haud 
dubie meliores converteruntj hoc tamen non spectantes^ sed pravis 
ducti cupiditatibus quid ilJis putabimus e^unere^ qui rei ep^losias* 
ticas c|[uaeuuqtie dait4 eccasioue^ sine delectu diripiuut e^ eiq>i)iant} 
semet tan turn locupletandi gratia." Rer. Ang. An. 1. i. an 152$. 



S4t INTRODUCTIOK. 

The imputations were similar to those which, as 
inferences from the celibacy of the Romish clergy, 
the followers of Wickliffe had, in the fourteenth 
century, cast upon that class; and, it is not a little 
extraordinary, that the same individuals who took 
.the trouble to gain a character for sanctity in the 
.neighbourhood, and were generally beloved, should 
have unveiled their wickedness to men whose ob- 
ject in visiting them was to find an apology for 
their ruin *. 

The dissolution of monasteries having been de- 
termined on, proposals were made to Parliament 
.for devolving their property on the crown, and the 
reasons assigned were, that every king ought to 
have three things : 1. The means of properly sup- 
porting the state of royalty, and of defending his 
subjects. 2. Of aiding his confederates, who other- 
wise would not assist him ; and, lastly, of rewarding 
his servants : That, therefore, if the monastic pro- 
perty were granted to the sovereign, he could never 
have occasion again to apply to his subjects for 
pecuniary aid, but would be enabled to support 
40,000 well trained soldiers for the public defence, 
beyond the present military establishment — and to 
create temporal peers in the place of abbots and 
priors t. This plausible scheme, however, appears 
to have deceived nobody : The abbots and priors, 
imitating the conduct of their predecessors in the 
ParUamentum indoctorum, accused the laity of act- 

• Burnet^ v. i. p. 334, et seq. Eden, vol. i. c. 2. 
t Howe's preface to Stow's An. Btrype's Mem. v. 1. p. 345. 4 Inst, 
p. 44. 



INTRODUCTION. S5 

ing under the selfish and impious principle of ap- 
propriating the Church's patrimony to themselves*. 



* The following is the greater part of an admirable speech by Fisher,* 
Bishop of Roche&ter, in Nov. 1529, and folly establishes the state* 
ment in ihe text 

, •  

*' My Honoured Lords, 
" This is the place, where your glorious and noble progenitors have 
fraternized the kingdom from oppression* Here is the sanctuary where^ 
in all ages but this of ours, our mother Church found still a sound 
protection. I should be infinitely sorrowful, that from you, that are 
80 lovely branches of antiquity, and Catholic honbur, the CathoUc 
faith should be so deeply wounded. For God and your own good- 
ness' sake, leave not to posterity so great a blemish, that you were the 
first, and only those that gave it up to ruin. Where there is cause, 
you justly punish, and with justice ; but beware of infringing so long 
continued privil^es, or denying the members of t}ie Church the very 
parts of their advantage that is enjoyed by eyery private subject The 
Commons shoot their arrows at our livings, which are the motives that 
conceit us guilty, &c. My Lords, consider your actions, be advised. 
This cause seems ours ; it will be yours, if that the moth^ church do 
fed injustice. Your turns are next to feel the like oppressions. When 
faith b^ns to fail, then all must perish. Heretic fancies taint the 
' common people, whom novelties betray even to perdition : Let neigh- 
bour neighbours tell you your own story. Huss, Luther, and such 
like frantic teachers, cry out against the Church in all their sermons ; 
they do pretend nothing but reformation, when they themselves are 
devest dyed in mischief. What follows then — ^to wit, perdition — we 
may expect injustice. The Church's wealth occasioned this first mov- 
ing. If that were poor, omr vices wotdd be virtues, and none would 
be forward to accuse us. What can we look for then but desolation, 
where private ends are made a public grievance } Our lesser houses 
are desired from us, not that their value doth deserve the motion, but 
that the greater may succeed their fortune,' which soon will follow, if 
the gap be opened." Scott's Edit, of Som. Tracts, v. i. p. 40. See 
Halle, f. 188. The Commons resented the speech deeply. Now, it 
is remarkable, that the visitation of the monasteries to ascertain the 
state of th^ir morals, upon which the lesser houses were suppressed, 
took place six years posterior to this speech, that is, in 1535. Se^ 
Bumetj p. 3i7. Who then can believe the report of the visitoirfi ? 



86 IKTftOOVCTlO}!* 

while they preteiided the public good ( and rabse* 
quent events verified the charge. PariiaaieQt be« 

gan with granting the lesser monasteries, whose 
revenues were individually rated as not exceeding 
£ 200 per annum, and might possibly have paused 
at the proposal of proceeding farther, had not tlmr 
hopes been gratified. Of the smaller hquses^ there 
were three hundred and seventy-six suppressed 
under this statute, and though their revenues were 
rated so low as at, or under, £^(iQ each, many of 
them were in reality to the amount of thousands. 
The suppresion, by striking at the stability of pro- 
perty, and abridging the means of providing for 
daughters, &c* excited great discontent and open 
outcry amongst the higher classes, as tiie loss of 
the wonted charity and other consequences of the 
proceeding, did amongst the lower-^and in some 
places the people broke out into rebellion ; but the 
rebels were reduced, and the king soon conciliated 
the majority of the aristocracy by liberal gifts, and 
by following the advice of his confidential minister, 
Cromwell, to sell the lands at an under value to the 
nobility and gentry of the several counties — ^that 
so many might be interested in supporting the 
transference of property as should elBFectually op- 
pose the re<»esta^lishment of those institutions*. 

* Bimi49l^ ▼. i. p. 406. Some writers have imagined that Henry 
iright kave fendeied lunuelf absolute^ by retainii^ the ChuKh pro- 
perty : But it is quite evident from all the facts^ that the thing wbb 
utterly Impradicable. The discontent was exceedingly great a<t first, 
inaatfleflted itself fo insurreetions, and would have led to a Tevolution, 
had not this method been adopted. See Burnet, b. ni The nobility 
and gentry used to provide fox their younger children in the rdigious 



The fill of tha Iqsser houges, and such a disposal 
of their property, prepared the way for the sub- 
▼ersion of the greater : But, as parliament might 
not have been incliiied all at once to grant the lat^ 
ter to the king, he' accomplished his object by a 
most politic proceeding. The vacancies which had 
occurred, by the deaths of abbots and priors, since 
the renouncement of the papal yoke, were fflf- 
ed up by Henry with individuals nominated for the 
express purpose of resigning the foundations into 
his hands * i while new visitors were appointed to 
^ttct the seci'et crimes and impostures of the re- 
maining endowments, and threaten or seduce the 
heads of them into resignations t. The visitors 
charged some abbots and priors with abetting the 
late rebellion, others with great disorders in the& 
lives, many with having dilapidated the revenues and 
wealth entrusted to them, either by carrying off the 
plate, &c. or granting leases to their kindred at 
quit rents, when they perceived the ruin of the 
endowments to be inevitable ; others again with 

houses^ and eomplaiBed muA of tbe iojvapf they tnistained by tlie 
pain^r^siioorHiU tbey g9t 4^6 liu^ P* 404< It is cnvimis to pWib 
the language of Bumet> as applied to t)ie diffisrex^t cbsa^ Thfi 
lower ranks forsQOth " followed Christ for the loaves^ and wer^ viost 
concerned for the loss of a good dinner on a holiday. Their discon- 
lent Uy in tMr ftomaeh'" P* 406. wd yet he allows, that all the 
higher 'classes eagerly shared in the spoil, making their religion sab- 
sernent to their worldly ioteres^ This prelate thought t)ie rel^kma 
houses should haye been reformed to the nisw doctiin^* ^ad D0t4i«^ 
solyed- See bis P)ref • Latimer too wished the preserratjon of twQ ^ 
three in every shire. Bnmet, p« i9S« JMb* 1S§, 19^ 917. 

* Bvmet, T. L p. 430* 

t Burnet, y. i. p. 430, et 9^> 



S8 INTBODUCTION. ., 

having denied the king's supremacy ; — ^and as ajS 
.these, while threatened with prosecutions on. one 
side^ were flattered with promises and oiBfered toler- 
able terms on the other, they, for the most part, 
compromised matters by surrenders: Many, in the 
hope of advancement to bishoprics, or to be made 
sufiragan bishops, as the inferior abbots generally 
were, gladly recommended themselves . by ready 
and cheerful . resignations : And to some, the ho- 
,nour has been ascribed of acting from new sprung 
zeal for the Reformation. Some obstinately stood 
out and denied the king's supremacy, either join- 
ing a party in arms or abetting rebellion, and 
were attainted of treason— ^when, contrary to all 
law, the endowments over which they presided, 
were declared to be forfeited to the Crown *. The 
Ifurrenders were of themselves invalid, because the 
abbots and priors, being merely trustees, had no 
power to' alienate the property ; but, as the lands 
and revenues were for the most part disposed of 
like those of the lesser houses, there was no dif- 
ficulty in persuading parliament to supply the de- 
fect of tiUe, whether by resignation or forfeiture ; 
and all leases granted by the abbots, &c. within a 
year of the surrender, were reduced. 

The personal property that devolved on the 
Crown was immense, and the rated revenue of all the 

• Burnet^ p. 430. et seq. See vol. v. in proof of the violent means 
resorted to by the visitors. P. 226. et seq. Herbert says, that 
Cromwell, *' betwixt threats, gifts, persuasions, promises, and what* 
ever might make man obnoxious, obtained of the abbots, priors, ab- 
besses, &c. that their houses might be given up." P. 217. See also 
p. 218. 



INTRODUCTIOK. 89 

iiouses suppressed, was, according to QQe accouiM^ 
rfl31,607, 6s. .4d. to another, a^ 161,100, but the 
real value is said to have been at least ten times 
more J and though, six new.bisboprics were erected 
out of real property, and part was retained by the 
Crown, infinitely the greatest portion was either 
sold at an undervalue, or given away to the.lio- 
bility and gentry *. The influence conferred, by 
it was proportionally great, an4 the precari- 
ousness of their tenure, till their rights were 
confirmed by time, obliging the purchasers and 
grantees to throw their influence into the scale 
of the Crown, increased the authority of the mo« 
narch to a vast extent The state of factions, as we 
have observed, enabled Henry to occupy the proud 
place of arbiter in determining their fate. The ascen- 
dancy at once belonged to the side heembraced^ 
and the new proprietors were fully aware, — ^indeed 
the rebellions w^ich followed the suppression of 
the monasteries afibrded them a salutary lesson, 
by showing the strength that could be arrayed to 
restore the church patrimony t, — ^that, if by an ill- 
timed opposition they irritated the monarch to 
renew his alliance with the Catholics^ that body, 
thus united under a regular head, might succeed 
in recovering the patrimony of the church out 
of profane hands. The fluctuating principles of 
Henry, as well as those to which he always ad- 



* Btmiet^ T. i. 488. Herb. 818. Bur. 487. See Strype's £c. Mem. 
T. L p. 264. et seq. in proof of the keenness with which the houses 
were sued for. 

t See Herbert^ Burnet^ &c. 



90 tvTBOimomov* 

liered, were calculated equally to alarm the one 
faction and encourage the other : for, ^< iti the 
whole progress of the changes,** says Burnet, 
•^ his design seems to have been to terrify the 
court of Rome, and cudgel the Fbpe into a com- 
pliance with what he desired * ;^ and CiarendoQ 
justly observed, that he was ♦* not less a Catholic 
to the hour of his death, than when he writ against 
Luthert/' This then, was one of the grand sources 
of that influence in parliament, so much remarked, 
which Henry possessed in ecclesiastical ailkirs. 

At an after period, the pure and evangelical 
times of the first reformers, with their views, were 
appealed to as the criterion of the protestant creed, 
uad the zeal of Laud and his coadjutors is alleged 
to have been only directed towards restoring the 
church to that model o£ imputed perfection |. 
It will therefore be no less conducive to a correct 
idea of the schemes entertained during the reign 
<rf* Charles I. than to that of the government in 
the time of Henry VI H. to give a summary of 
ihe chief acts of the legislature, which conferred 
power upon the latter monarch in ecclesiastical af- 
fairs, and an account of the manner in which he 
carried them into effect. 

The same parliament which confirmed the sur- 
render of the greater monasteries, strengthened 
the cro¥m by an act in regard to proclamations. 
As Henry had proceeded to innovate in religious 

t Clarendon's Hist, of the Churchy p. 321. 
X Heylin's Introductioii tOy and life of Laud. 



IVT&ODUCnOK* 01 

matters, without the intervention of the legisla- 
tures great murmurs had arisen, and his injunc- 
tions were, with other proceedings, generally con- 
sidered as an invasion of public rights*. The 
act therefore sets forth in the preamble, ** the 
contempt and disobedience of the king's procla- 
mataoDs, by some who did not consider what a 
king by his royal power might do, which, if it 
continued, would tend to the disobedience of the 
kws of God, and the dishonour of the king's 
majesty, (who may full ill bear it) considering 
also that many occasions might require speedy 
remedies, and that delaying these till a parliament 
met, might occasion great prejudices to the realm, 
and that the king by his royal power, given c^ 
God, might do many things in such cases ; there* 
fore it is enacted, that the king for the time being, 
with advice of his council, might set forth procla- 
mations, with pains and penalties in them, which 
w»e to be obeyed as if they were made by an act 
of parliament. But this was not to be so extend- 
ed that any of the king's subjects should suffer m 
^eir estates, liberties, or persons by virtue of it : 
nor that by it any of tiie king's proclamationSj lenoSy 
or customs were to be broken and subverted.** Then 
follow clauses about publishing proclamations and 
prosecuting those who contemned or disobeyed 
them. 

Another act, commwily known by the name of 
the bloody statute, followed immediately, though 

* Hist, of Ref. vol. i. p. 477. 



92 INTRODUCTIOK. 

with much (q)position * ; and, it is curious to 
learn, that, as it countenanced the Romish faiths 
so it reconciled many of that party to the sup- 
pression of monasteries t. It is entitle^ an act 
for abolishing diversity of opinions in certain arti* 
des concerning. Christian religion ; and sets out in 
the preamble, with stating, ^* that the. king, con- 
sidering the blessed efiects of union, . and the mis- 
chiefs of discord, since there were many different 
opinions both among the clergy and laity, had 
called this parliament, and a synod at the same 
time, for removing these differences, when ^x ar- 
ticles were proposed and long debated by the 
clergy, and the king himself had come in person 
to parliament and council, and opened many 
things of high learning and great knowledge 
about them : and the six articles were, 1st, That, 
in thjB sacrament of the altar after consecration, 
there remains no substance of bread and wine, 
but under these forms the natural body and blood 
of Christ are present. 2d, That communion in 
both kinds is not necessary to salvation to all per- 
sons by the law of Gody biit that both the flesh 
and blood of Christ are together in each of the 
kinds. Sd, That priests may not marry by the 
law of God. 4th, Ihat vows of chastity ought to 
be observed by the law of God. 5th, That pri- 
vate masses ought to be observed, which as it is 
agreeable to God's laws, so men receive great be- 

* Strype's Eodeeiastical Memorials^ yoL i. b. 1. c. 47. Burnet, 
ToL i. p* 465, et seq. 
+ Id. p, 4T1. 



' INTRODUCTION. 93 

nefits by. them. 6th, That auricular confession 
is expedient and necessary, and ought to be re- 
tained in the church.'^ It was enacted also, that 
those who: spoke, preached, or wrote against the 
first article, should be adjudged heretics, and be 
burnt without any abjuration, as well as forfeit 
their real and personal estates to the king. That 
those who preached against, or obstinately disput- 
ed the other articles, should suffer death as felons^ 
without benefit of clergy, and that those who 
either in word or writing declared against them, 
should be imprisoned during the king's pleasure,* 
and forfeit their goods and chattels for the first 
offence, and for the second, suffer death. ^ All 
marriages of the clergy were annulled, ' and a se-^ 
vere clause against their incontinence was insertedi 
For carrying this law into effect the king was em- 
powered to issue commissions to the Archbishops 
Und Bishops, apd their commissaries, to hold ses^ 
sions quarterly, but to proceed upon presentments, 
and by a jury of twelve men according to law. 

The statute 32. Henry VIII. c. 20. sets out 
with stating, that the king, as supreme head of 
the Church, was taking much pains for a union 
timongst all his subjects in matters of religion; 
and for preventing the farther progress of he- 
resy, had appointed many of his bishops, and 
the most learned divines, to declare the principal 
articles of the Christian belief, with the ceremonies 
and mode of service to be observed : that, lest a 
matter of such consequence, instead of being 
done with requisite care> should be done rashly 



94 ZNTftODUCTION^ 

or hastaied through in this session of parliament,, 
it was enacted-*--^' that whatsoever was determined 
by the archbishops, bishops, and the other divines 
now commissionated for that office^ or by any 
others appointed by the king, or by the whofe 
clergy of England, and published by the king's 
authority, conciaming the Christian faith, or the 
ceremonies of the Church, should be believed 
and obeyed by all the king's subjects^, as well as 
i£ the particulars so set forth had been enume^ 
rated in this act, any custom or law to the coq-> 
trary notwithstanding/' But a proviso was added 
which destroyed the clause, ** that noticing should 
be done or determined by the authority <^ thia 
act, which was contrary to the laws and statutes 
of the kingdom/' 

Thus authorised by statute, the king and his 
bishi^ prepared a book of injunctions which 
contained the substantials of the Romish creed : 
the seven sacraments, the real presence, penance^ 
though modified, auricular confession, absolution, 
extreme unction, the worship of images^ invoca- 
tion of saints, &c. &c. formed the basis of the 
book ; and so eariy was the public attention called 
to the subject of free will and neces$ity--<^e 
e£&ct of baptism, &c. which afterwards proved 
such a fruitful source of schism. But the grand 
subject of dispute in this reign regarded the cor- 
poreal presence of Christ in the eucharist, and 
many suffered at the stake for denying it The 
missal was somewhat altered, but the greater 



fort ^f tibe ceremonies oi tiie old reUgion urere 
^retained "*« 

The statute S5. Henry VIIL a 1. allows the 
nse of the ^ble ia English to dl of a certain rank^ 
provided thef read it ijuietly ; but prohihiti any 
from expouadiog it in im open assembly, except 
endl as af e licensed by the king or his ordiaaiy**«- 
and l&ewise provides^ that artificers^ appreittaeeSt 
joumeymen^ m well as hnsbandmen^ &c. under tiie 
degoee of a'yeoman, shall not read the scrtptuMi iai 
&esr native tongue : it permits all classea te sead 
and teaisk in their houses the book published inifae 
year 1^40, with the psalter, primer, patemoidbei^ 
ilhe «Te^ and the creed, in English ; hut ppimdes» 
that all spiritoal persons who preached or. tanglit 
eontrary to the doctrine set forth in that bodc^ 
were to be admitted, ibr the first oonyaction^ to 
renounce their imrors; for the second» toafafntre 
and carry a laggot ; but if they refused, or if tibey 
fell into a t^ird o^nce, they were to be bar&L 
The laitj, however, for the third o&nce, were 
only to forfeit their goodhs and chattels, and be 
Uable to perpetual imprisonment. The statute osf 
mx articles was also declared to be in fwce, but it 
wais thoii^t to be onoderated by the authority 
which was given to the king to alter it, or any jof 
its provisions at pleasure. 

We have already had occasion to speak of the 
suj^emacy^-'-^nd it may not be improper to illus- 

* Burnet, W. L ^ 519. et seq, Ec Monorkla^ toL L See N^aTs 
Bte.<of tlie Pnritsnsy toL i e. 1. 

5 



96 INTRODUCTION. 

trate its nature by an act passed towards the con* 
elusion of this reign, which declares, that " ardhh 
bishops, bishops, and deacons, and other^ecclesias- 
tjcai persons, have no manner of jurisdiction ec- 
clesiastical, but by, under, arid from, his royal 
majesty, and that his majesty is the only supreme 
head of the Church of England and Ireland, to 
whom^^ by scripture, all authority and power is 
gi^en to hear and determine all manner of causes 
ecclesiastical, and to correct all manner of here- 
sies, errors, vices, and sins whatsoever, and to all 
such persons as his majesty shall appoint there- 
unto.** / 

. This summary of the principal legislative enact- 
ments regarding religion, evinces that, during the 
reign of Henry VIII., the Reformation, in respect 
to doctrine, made small advances ; and that parlia^ 
ment: devolved powers of an extraordinary nature 
upon the king. The causes of this have been al- 
ready explained ; yet the reader may be again 
reminded of the strange posture of affairs. It is 
easy to censure, and dwell upon the impolicy of, 
intolerance ; but, in the season of alarm and con<- 
fusion, it requires a rare perspicacity of judgment^ . 
and expansion of intellect, to look beyond the ter- 
rific gloom of the moment, and to remain calm 
and unruffled amid the jarring elements. Such 
was not to be expected in that age, when it is 
-considered that, after the Reformation had been 
tried by the test of experience, men of the greatest 
sagacity held, that different religions in a state 
were incompatible with public safety, v The into- 



ZKTRomrcfioK* 97 

lerance of Henry and his parliaments have been 
condemned as the, abstract of tyranny — not unfre- 
quently too by the devotees of sects ; but it 
should ever be remembered, that, of all the sects 
obnoxious to persecution, there was not one which 
did not thirst for an opportunity to exercise simi- 
lar dominion over all who refused. implicitly to 
adopt its doctrine. Nor had these religionists any 
difficulty in reconciling such an atrocious princi-. 
pie with their grievous complaints of the bloody 
intolerance to which they were themselves ex- 
posed: for they maintained, that as they drew; 
their creed from the genuine source, it could not be 
a matter of doubt ; and that, as others wandered 
in darkness, merely from the perverseness of their^ 
own hearts, — from unpardonable prejudices, and 
wilful blindness, it was no less an act of piety, 
than of mercy to the rest of mankind, to puni^, 
or cut off, as workers of iniquity, those who obsti- 
nately shut their eyes against the light. The par- 
ticular direction which intolerance took in the 
time of Henry VIII. was owing to the various 
sources of influence possessed by the crown ; but 
the same spirit, in a different form, might, and 
in all probability would, have disgraced socie- 
ty under the purest republic. In a free govern- 
ment, however, intolerance cannot exist long: 
Though, in a season of revolution, false notions 
and unfounded fears may inflame the great bo- 
dy of the people with a rage to persecute their 
brethren, yet it will commonly be found, that it 
is selfishness, disguised under the cloak of reli- 

VOL. I. H 



9% nfTRdOVOHOK. 

giotig fteling, which tdirtiriues to blacken the 
heart with xinhallolfred ieal to drown opposition 
in bfood. When ftien in power resgnt tlie injury 
done to, their pride, by sects who question their ex- 
clusive right of place, wh^n they dread being dis- 
possessed by those sects, or a|^reheod a loss of 
public respect— theh it is that they are a prey to 
furious, persecuting passions, encouraged by the 
common voice of th6 party, ahdcotiflirmed by the 
hostility of the opposing sects, hostility which 
their own breasts r6flfect, and all sanctified, even in 
their own eytes, by the bigotry which they indulge 
as a self excuse. But as the dergy are, under a 
good gbverriment, kept in their proper sphere, and 
consequently have riot the same motives to work 
upon the passions of the multitude, while no pir- 
ticuiar sect so exclusively occupies the road of pre- 
ferment and honour, as to have a direct interest in 
suppressing others — ^people soon begin to regard 
each other's opinions with the genuine spirit of 
Christianity and philosophy. 

Though the Reforniation, in regard to religion, 
had iidvanced little, mtich had, in reality, been 
done. The ^ower of Parliament to regulate the 
Church had been fully recogiiized, and the circum* 
stances which retarded change could not operate 
long. Great powers had ilndeed been triansferred 
lb the throne j tut, being derived frotn the legis- 
iature, they could, upon every jiist prfnciple, be 
resumed by the same authority ; khd, in one re- 
sjpect, they have been erroneously elxaggerated. If 
the cbrisiitutiotoal language were to te^litei'ally in* 



1WTROBUCTTOV. ^ 

teipreted, the sovereign is absolute proprietor of 
every man and thing vvithin the realm — the parlia- 
meot is his — the people are his, &c* But» it is su- 
perflifous to add, that this is not the principle of the 
Constitution — which gives the right of reigning, 
subject to the condition of his governing accord- 
ipg to l^w, and under direction of his great council 
the Parl^mei^t ; and that his will can only be sig- 
nified, and acted upon, through the legal channels. 
Had thb been duly weighed, certain writers would 
not have discovered such a fund of obloquy in the 
statuties which gave the king supremacy over the 
Church. The great object of those statutes was 
to rescue the kingdom from a foreign yoke, and 
to prevent the English clexgy from establishing 
independent authority in their own body; in a 
word, to bring ecclesiastical causes, like the civile 
under the controul of the sovereign, in his capacity 
of chief magistrate and fountain of justice : But 
the prerogative being bounded by the provisions 
of the legislature — ^provisions too ample indeed in 
that reign— the supremacy abstractly considered, 
implies no unreasonable power in the crown ; and 
does not in reality involve any question about the 
respective merits of ecclesiastical establishments, ex- 
cept in so far as the clergy maintain, that their order 
is a divine institution which ought to be independ- 
ent of civil government ' Wherever there is a reli- 
gion of the state, it ought, in the nature of things, to 
be erastian or subordinate to the civil constitution. 
If it be otherwise, there must necessarily either be 
such a clashing of interests between f^e church 



"1 C^''~^ T' -r* *^ 



t < ^ I 



lOO INTRODUCTIOlf. 

and state, as will prove destructive of pubHc peaed, 
and, in the common case, end in the ruin of the 
religious establishment, or the monarch will form 
a junction with the priesthood prejudicial to the 
rest of the community, since each will, from their 
mutual interest, assist the other in usurpations upon 
public rights. The last had occurred under the Ro- 
mish yoke, and still continued in Catholic mo- 
narchies; the former was strikingly exemplified in 
Scotland by the Presbyterian system, while it 
flourished in primitive vigour. It is true that Pres- 
byterianism has since proved itself in that coun- 
try perfectly compatible with monarchy; but it 
should always be remembered, that it only ac- 
quired that character after its powers were so 
abridged, that it had virtually become eras-- 
tian*. It is the patronage of the crown, and 
not the supremacy, which gives it influence: 
Henry's great authority was derived from the other 
statutes as well as from his patronage, and not from 
those which conferred upon him the supremacy. 

On the death of Henry VIII. the succession 
opened to his son Edward VI. then a boy of nine 
years and four months old. By Henry's will, 
which he had been empowered by statute to make, 
sixteen persons had been nominated his executors 
and regents of the kingdom till his son should 

* Those who have attentively perused BaiUie's Letters^ will be sa- 
tisfied that the gentlest disposition in an ecclesiastic — and I quote 
Baillie^ because he was naturally remarkably mild— does not secure 
him against a desire to establish a church government inconsistent 
idllk the civil. 



l^ooiplete his. eighteenth year ; and of these the 
young king's uncle, the Earl of Hartford, after- 
wards created, Duke of Somerset, was chosen pro- 
tector of the realm and governor of Edward's 
person. To these, twelve were added as a privy 
council, to assist them in public aflPairs. The re- 
gents differed upon the important subject of reli- 
gion, some being for the old, and the, rest for the 
new; but the. majority, with the protector at 
tiieir head, haying declared for the Reformation, 
carried measures for promoting it, in spite of op- 
position, from the minority, joined by the greater 
part of the bishops and inferior clergy, who still 
adhered to the principles of the Romish creed. 
Persecution upon the bloody statute was stopt; 
the prison doors . were thrown open to those who 
suffered under it; and exiles, of whom several 
were afterwards preferred to great benefices,: re- 
turned in safety and honour to their native coun- 
try : Images, souUmasses, &c.. were treated as su- 
perstitions ; a book of homilies, more freely com- 
posed, was published by authority as a substitute 
for preaching ministers, of whom there was a great 
deficiency ; a royal visitation was appointed,, and 
new inj unctions, likewise of a more liberal kind, were 
delivered by the visitors along with the homilies, 
to the clergy throughout the kingdom. The first 
measures were adopted without the intervention 
of the legislature, in virtue of the powers confer- 
red upon the crown by the statutes about procla- 
mations, and by that which authorised the recal of 
the ^statute of. six articles: But parliament soon 



lOS iNTjIODtJCTioX. 

met, and formally repealed, not 6n\y all la'vi^ 
which made any thing treason that was not speci- 
fied in the 25 of Edward III., but two statutes 
against LoIIardies, the bloody statute with the acts 
which followed in explanation tbf it, all laws in the 
late reign declaring any thing to be felony that 
had not been so before, together with the statute 
which made royal proclamations, in certain respects, 
of equal authority with acts of the legislature. It 
Was particularly enacted too, that all processes fh 
the spiritual courts should run in the king's name*. 
Some deanries and chauntries had been given 
to Henry, and the remaining chauntry lands, 
with legacies for obits, &c. were now granted to 
the Crown, under the pretext of maintaining gram- 
mar-schools out of the revenue J but the hungry 
courtiers, of whom several were gratified with ne^ 
titles or peerages, engrossed all, either in the form 
ttf gifts, or of purchases at low rates t. 

It would be inconsistent with our plan to spe- 
cify particularly the alterations in the public 
creed and worship during this short reign ; suf- 
'fice it to say, that the altar was turned into a cora- 
mtirtion table, and the idolatry of the mass con- 
verted into a common sacrament, the real pre- 
sence having, latterly, ceased to be longer a!n 
article of faith j that images Were pulled doWn, 
theiuVdcation of saints prohibited, and the mlass 
books called in; that the marriage of the cler- 

* Burnet^ Part II. b.i. Strype's Ecclesiastical Mtoorials^ vol. ii. b^L 
Neal's History of the Puritans, vol. i. c. ii* . 

t Strype's Ecclesiastical M^orials, vol. iL p. 63i 362. Bux^et^ 
ToL JiL p. 84« l^S. Nea]» toL Lp. 61. 



INTRPPUCTIQH. ]C)S 

gjTWiaus allovtred, imd At«riC]i;ilar confession k£t 
iniiierent 9 thf(tf articlei; of fgith aiipilar to the 
39 fti^ic)^ "iiFeiie agreed upoi^ and tH% alituFgy 
(Vfi^ch idiSfora liUle ^om th? one npTf in use buying 
feeeni iframedi 9^.a9 aanctiPl^ by tl^e legi^latujre. 
The liturgy ,w*ft first p^ibUshed ffif^rejy l?y royal 
Mth^urity, ^d a gw^ »iwrfls«ir w^^ excited by. so 
ibpld an iny^isiwi pf public privHeges j but, though 
4be OMiniati^rsf /Qf th^ crpw^ ^fi^^qted tQ defend it 
fim ibe piriaeipt^ ^* its ^ling \vi|;hin the scope of 
itiie ku}g- 8. auprem^cy« they prudently lost little 
time ib sucnmpning a parliament jtp ,give ^t the 
aMthonity of law^ Fa;i?th€ir ^ter^tipns w^jce niedi- 
tated^ jajad, in paiticujar, it was at p^pe time in agi- 
.tation to discontinue the yestinepts pf the cler^, 
afterwards a gre^ caupe pf achi^j biit 1;be pcg- 
matur6 death of £!dwa:(d g^ye p. ryei^ different di- 
rection to public affair^;. .Of this ypp^g prioqe, 
to whom other writers ftscrib0 the i^opt ;amia)>le 
qualities, Heylip, chapla^ tP GbiiHea I* aad ^the 
confident of Laud, saya, thi^t f} hp waa iU-princ9- 
pled, that rhia reign w4f^ ui^o^tunate, and that 
his death was not an infelicity jtp.the .qhuTch.*/' , 
The conduct .of the aqstoqr^y fully ev^tnc^ 
that the part which they . had :hithertP tsdceii::}? ihe 
Reformation, had proceeded frpm wprldly iQptives. 
Not content with the property they had acquired 

* HeyKn's History of ihe Reformation^ preface, p. 4. -Part 7. p. 1421. 
This author is, most inconsistently, in some places profuse in his 
praises of Edward. But inconsistency is the characteristic of Hey« 
lin; and he is the more inexcusable, as he possessed great talenta and 
a dear judgment. 



IM INTBODUCTIOK. 

by the dissolution of the monasteries, (and front 
the great extent of tithes appropriated to those 
houses, which passed along with other grants, 
there remained little in many places for the clergy) 
they obtained the chauntry lands, &c. and enjoyed 
the very benefices of the church. The Lord 
Cromwell, who had been so active in bringing the 
enormities of the monasteries to light, had been 
Dean of Wells, the Earl of Hartford was promis- 
ed six good prebends; " and," says Burnet, 
" many other secular men had these ecclesiastical 
benefices without cure conferred on them*.** 
Some motions, to relieve the extreme misery and 
poverty to which the clergy were reduced, were 
made in Parliament ; but, however ready that as- 
sembly might be to advance the views of the 
Court in regard to doctrine, it did not chuse to 
promote religion in that way, and k book, address* 
ed to the Lord Chancellor, then Bishop of Ely, 
was published on the subject.* The author, says 
Burnet, " shewed that without rewards or en. 
couragements, few would apply themselves to the 
pastoral function; and that those in it, if they 
could not subsist by it, must turn to other employ- 
ments ; so that at that time many clergymen were 
carpenters and taylors, and some kept alehouses. 

* Burnet, Part II. vol. iii. p. 14^ 15. Crarnner^ as well as the pen 
pish bishops^ opposed the aale of ehauntries^ perceiving how they 
would be disposed of^ p. 84. Strype's Memorials of Cranmer^ b. ii. 
c 84. — Calvin^ too^ addressed both the Archbishop and the Protector 
on this subject^ advising the latter to endeavour to prevail upon those 
who had spiritual possessions to part with them;i as they could pot 
prosper otherwise. lb. 



INTRODUCTION. 105 

It was a reproach on the nation, that there had 
been so profuse a zeal for superstition, and so 
much coldness in true religion. He complains 
of many of the clergy who did not maintain stu- 
dents at the university according to the king's in- 
junctions ;" it is lamentable to discover that this 
selfish spirit was not confined to laymen ; " that, 
in schools and colleges the poor scholars' places 
were generally filled with the sons of the rich/' 
It is at least gratifying to learn, that the rich be- 
gan to educate their families ; for an act passed 
in this very reign, extending the benefit of clergy 
to peers, though they could not read ! " and that 
" livings were most scandalously sold, and the 
greatest part of the country clergy were so igno- 
rant, that they could do little more than read *.*' 
But what says the good and famous Bishop Lati- 
mer on this subject ? " That the revenues of the 
church were seized by the rich laity, and that the 
incumbent was only a proprietor in title. That 
many benefices were let out to farm by secular 
men, or given to their servants as a consideration 
for keeping their hounds, hawks, and horses ; and 
that the poor clergy were reduced to such short 
allowance, that they were forced to go to service, 
to turn clerks of the kitchen, surveyors, receivers, 



• Burnet, Part H. b. i. voL iii. p. 374, 375; see also Strype's 
Ecclesiastical Memorials, toL ii. p. 63. also c 31. In page 299, there 
is a very curious account of a gentleman. Sir George Norton, obtain- 
ing a letter from the council to the bishop of Bristol to surrender to 
Inm the manor of Leigh, in Somersetshire. The bishop refused at 
iBrst, but at last was obliged to consent. 



108 IVTRODUCTiON. 

&c. ♦•** Camden informs lis too, •< that avarice 
and sacrilege had strangsely the ascendant at tfacs 
time. That estates formerly settled for the sup- 
port of religion and the poor, were ridiculed as su* 
perstitious endowments, first miscalled and then 
plundered.^* The bishops also parted with fth^ 
lands and manors belonging to their livings, and 
the courtiers grasped at whatever they could lay 
their hands on. 

This, however, was not the only blemish of the 
age. Those at the helm of afi&irs, though they 
denied infallibility to the Pope, arretted it to 
themselves, and unfeelingly brought several of 
their protestant brethren to the stake, who could 
not subscribe to all their doctrine. We are in- 
formed that Edward himself, green in years as he 



• Latimer's Sermons. This prelate conjectured that there were 
ten thousand fewer students in the universities at this time than for- 
merly. See vol. ii. h. ii. of Strype's Ecclesiastical Memorials. Me« 
.morials of Cranmer, h. ii. c. 8. and 24. Heylin's Hist. pref. and p. 17, 
60, 61> 117^ 131^ 132. Even altar-clotiis^ plate^ &c. were grasped 
at; nay^ tiie very bells did not escape their rapacity. See also Strype's 
Memorials^ vol. ii. p. 362. It appears that morals were much relaxed. 
Id* b. ii. c. 23. The people refused to pay tithes to the curates ; of 
whom they would say^ '^ our curate is naughty an ass head^ a lack latine^ 
and can do nothing. Shall I pay him tithe that doth us nb good^ nor 
,none will do V Id. p. .445. ^^ Patrons did shamefully abuse their be- 
nefices^ sometimes by selling tiiem to such as would or could give 
money for tiiem^ or other considerations. Sometimes tiiey would 
Te£arm them ; insomuch that^ when any afterwards should have the 
benefice^ there was neither house to dwell in, nor glebe land to keep 
hospitality : But the curate was fain to take up his chamber in an 
ale-house^ and there sit and play at tables all day^" p. 448. Bribeiy 
' for all places, and bribery of judges to an aatoniahing degree, p. ^SSU 
Neat, p. 77. 



im, thidbgfi so intderant towardis Catholics as to 
feftise his sister Mary the liberty of celebrating 
iilass^» abhorred the persecution of the reformers; 
and it is probable that his ideas were more en'- 
larged on that point than those of his council; 
for, independently of the selfish motives that ope- 
rated on his advisers, it may be admitted, that, in 
such cases, charity is often a safer guide than 
great abilities ; since, while the mind is clouded 
with passion, its powers are perverted into the 
toelattcholy office of furnishing arguments to jus- 
tify its fury t. 

* Strype's Memorials^ yd. ii.4[)w ii* o/i. 

i* In the cKse of Joan Bocher, commonly caDed Joap of Kent^ 'whoia 
his ministers had resolved to send to the stake — for a singular ojli- 
nion?— £dward refused to suhscribe die warrant for her execution^ and 
Cranmer was employed to 'persuade him^ who " told the Icing he made 
a great difference between errors in o(h«: points of discipline^ and 
those which were directly against the apc»tle's cre^. That theie 
were impieties against God^ whiich a prince^ as being God's deputy^ 
ought to punishj as die king's deputies were obliged to punish of- 
fences against the king's person." Edward was preyaiied on; but he 
signed the warrant with tears in his eyes. Burnet^ y<^ ili. p. 906, &c. 
This tfrchbishop had also his day^ as 'the next deputy conceived ith^r 
duty to God to consign hfin to the flames. Joan of Kent's heresy^ As 
it appears in the instrument drawn up against her in the Ardi- 
bii&op's I^gister^ runs thus: '^ That you believe thiat tl^ wofd 
was made flesh in Uie Virgm's belly^ but lliat Christ took of die 
Virgin /ou bdieve not^ because the flesh of the 'Virgin^ being the 
cfutward man^ was siiifull^ gotten and bom in sin. But the Woitl^ 
by the consent of th^e inward tean of the Virgin^ was made fledi." 
fltrype's Life of Cranmer^ p. 161. This, one woiild think, a vely 
'innocent error; but it appeared to the Archbiiihop and his coad- 
jutors an unpardonable one. *' Great care," says Helylin, (who de- 
. dares she justly deserved her fate,) " was taken, and much tune 
. spent by the Archbishop to persuade her to a better sense ; but when 
all failed, and that he was upon the point of passing sentence uiMn 
her for persistuig obstinate in so gross an heresy, she most malicioai- 



108 INTRODUCTIOX, 

The various sources of influence which operat- 
ed in the last reign, continued in this. The 
rights of the new proprietors to the church 
lands and revenues were not yet confirmed by 

ly reproached him for passing the like sentence of condemnation on 
another woman, called Ann Askew, for denying the carnal presence of 
Christ in the Sacrament; telling him that he had condemned te 
said Ann Askew not long hefore for a piece of hread, and was 
then ready to condemn her for a piece of flesh." Hist, of Ed. VI. 
p. 89. Cranmer was concerned in bringing Lamhert, the disputant, who 
fearlessly maintained his cause (he denied transubstantiatioii) iigainat 
Henry VIII., to the stake, (Strype s Life of Cranmer, p. 65,) and 
heretics in general were treated with no greater indulgence by him : 
yet he had the character among Protestants of ^common mildness of 
temper, and, says Burnet, " was so noted for his clemency, and fol- 
lowing our Saviour's rule, of doing good for evil, that it was common- 
ly said, the way to get his favour was to do him an iitjury." Vol. i. 
p. 695. Into such fiends does bigotry convert the best <rf men f But 
an apol(^ can more readily be admitted for Catholics, who enforced 
the creed in which they had been educated, than for such as Cranmer, 
whose faith was daily changing. He at one time as furiously perse^ 
cuted those who denied transubstantiation as ever he did any other 
imputed heresy, and was long a sticUer for pilgrimages, purgatory, 
&c. (See Strype's Life of him, and particularly p. 267.) and latterly^ 
while he became fierce against transubstantiation, he borrowed from 
Ridley the senseless jargon common to many, « of a real presence of 
Christ's body and blood in the holy sacrament, as to exclude that cor- 

. poral eating of the same, which made the Christian faith a scorn 
both to Turks and Moors :"~and held, that « in the sacrament 
were truly and verily the body and blood of Christ, made forth effec- 
tuaUy by grace and spirit." Heyl. p. 53. see also Fox's Martyro- 
logy, vol. li. p. .425, 767, and Scott's Somers' Tracts, vol. i. p. 83. 
Cranmer, when it was his turn to suffer upon his own principle— that 
the monarch, as the vicegerent of Heaven, is bound to punish its al- 
leged enemies, did not shew the spirit of Joan Bocher, as, though he 
went through the last scene with resolution, he had previously tried 
to save his life by six several recantations, (Strype's Memorials, voL 
m. p. 232, Life of Cran. p. 383. ;) yet his constancy, in his last mo- 
ments, is lauded by writers, while poor Joan's firmness is a rah- 

. ject of reproach. 



lOTROPUCTIOlf. I69 

time; and a daily accession was either obtain- 
ed, or expected, by individuals of great conse- 
quence in the community, while several were 
bound more strongly to the crown by honours. 
The state of society, too, obliged the aristocracy 
tod the other independent members of the com- 
munity to strengthen the executive. Repeated 
insurrections of the most alarming kind threaten- 
ed the public peace during this reign ; some of 
the insurgents used as their pretext, a desire to re- 
Store the old religion j but despair, the effect of 
pasturage, &c. was the primary cause of the disor- 
ders. Could it be shewn that the measures adopt- 
ed against these unhappy men, were not always 
consonant to the principles of constitutional free- 
dom, it would still not prove that the great body 
of the people either were not acquainted with 
their rights, or neglected them. For the mea- 
sures, instead of originating with the court, were 
generally pursued at the desire of the aristocracy j 
and if not at the express desire of the other inde- 
pendent classes likewise, at least without opposi- 
tion from them. It has already been said that 
the Lord Protector owed the hostility which 
brought him to the block, chiefly to his unavail- 
ing efforts to execute the laws against enclosures, 
&c. ; and, in a word, to meliorate the wretched 
condition of the poor. 

As Henry had renounced the Papal yoke, not 
from principle; but from a resolution to gratify his 
passions by disengaging himself from his marriage 
with Katherine of Arragon, and entering into 



new alliances, Mary naturally r^ardied the re^ 
formation as stampt with all the impurity of the 
original motives that actuated her father's min4» 
— as stained, no less with the grossest injusticei 
than the blackest impiety, in degrading her mother 
from the rank of queen, into the humiliating a>ii- 
dition of a discarded concybine, and branding her* 
self with illegitimacy, which seemed, at one tim^, 
to debar her from every hope of succession. Thi? 
Romish Church, on the other hand, was endeare4 
to her from its sufferings in her own and her mo? 
ther's cause, and clung to as the sheet anchor which 
promised to rescue her frqm bastardy ,. $ind to ajprQr4 
a chance of vindicating her right to the crpwOf 
These feelings, which had been noupshed in her 
from youth, must have been rendered still more 
poignant by the persecution to which slie had been 
exposed for adhering to the creed of her. ances- 
tors; and the last attempt to defeat her succqsr 
sion by raising Lady Jane Grey to the throne, as 
it testified the same hostility, on the part of pro- 
testants, which had hunted her from her tender 
years^ could not fail to operate unfavourably on a 
disposition, that, though not naturally unamiable^ 
had been soured by misfortune, and perverted 
with bigotry *. The temper of her advisers,, and 

* Burnet says of Mary — ^^ She was naturally pious and devout, 
even to superstition ; had a generous disposition of mind^ hut much 
corrupted hy melancholy> which was partly natural in her^.hut much 
increased hy the cross accidents of her .life> hoth hefore and after her 
advancement ; so that she was very peevish and splenetic towards the 
end of her life." Vol. iii. p. 43S. She narrowly escaped an igno- 
mu^ous d^i^ih in her fither^i )iiinei0r her leUgicm* Jb. Bee hut 
eharacter. Id. p. 667. 



IKT80DUCTI0K; tU 

particularly of her husband^^cold-blopded^ cmd, 
and bigotted as Philip was, encouraged persecu- 
tion» while the continued machinations of the op- 
posite party ever provoked fresh resentment* 
The disgraceful scenes that occurred during her 
reign, which have rendered tliat portion of British 
history so disgusting, (though the sanie spirit in the 
reformed had indicated similar intolerance in the 
two preceding, and was with difficulty restrained 
in the next,) were congenial to the temper of the 
great body of the Catholics, who were not actuated 
merely by the ordinary feelings of a faction strug*- 
gling for pre-eminence, but were infuriated by 
bigotry accompanied with the remorseless cruelty 
which it is so apt to inspire, — ^by a deep sense of 
injuries, for their adversaries had set an example 
of cruelty which they were now doomed to expe- 
rience in turn, — and, above all, by fear. They 
justly dreaded that, unless they succeeded imme- 
diately in subduing the opposite faction, their 
triumph would be transient, as that a party, at 
least as numerous as themselves, would recover 
the superiority, and assert it with their former 
rigour, inflamed with vengeance for temporary 
sufferings. Under the dominion of such passions, 
they, according to the practice of all bigots, at- 
tempted to restore the ancient worship by measures 
which alienated, instead of reconciling, the public 
mind. 

It was only in the progress of the next reign 
that the aristocracy began to acquire that serious 
cast of mind which distinguished them as well as 



lit INTRODUerXOK. 

the people at an after period of English history* 
In all the previous changes, they appear to have 
been actuated solely by an insatiable thirst for 
church property *, and the same peers who had 
voted for the Reformation, together with the bloody 
laws to enforce it, now gave their voice for a re- 
turn to the Romish faith, and for all the statutes 
that carried ruin to the party whom, in the former 
reigns, they had exclusively protected and encou* 
raged t. The Reformation had brought an im- 
mense accession of property to the aristocracy, and 
a relapse to Popery, as it implied a charge of sacri- 
lege against the plunder of the church, seemed in- 
consistent with the security of their tenures : But, 
however much JVIary desired the restoration of 
that property, she knew that the possessors would 
never surrender it without a convulsion ; and, in 
agaiii acknowledging the supremacy of the Pope, 
she was anxious for the support of the leading 
ranks. She therefore suppressed her secret pur- 



• '* Though the revenues of the Church," says Strype, '' were mi- 
serably spoiled in the days of King Edward, by the nobility and gen- 
try, that got them into their own hands^ upon pretence of maintaining 
their houses and state ; yet even in this reign did this grievance con- 
tinue." Ec. Mem. vol. iii. p. 251. et seq. It was not only church lands, 
parsonages were held hy them, ty thes gathered, &c. &c. Passages are 
quoted from a treatise of a Dr. Tumer, who complains that though his 
living was only £74 a year, the first-fruits were withheld ; and gives 
many instances of their rapacity. " I would," says he, ** there were 
some act of parliament made against such valiant heggars" (they stoopt 
to beg of churchmen, but their begging seems to have heen equivalent 
to a demand) "which vex poor men, as I was, much worse than the 
lousy heggars do." See aljso p. 177. 

t Neal, vol. i. p. 83. 



INTRODUCTION* 1 IS 

pose of resuming the property for the church, and 
held out an assurance to the possessors, that their 
rights would be confirmed*. It was their interest, 
on the other hand, to gratify the Queen in the ar- 
ticle of her faith, since in the character of legisla- 
tors, they might direct the current which they 
could not avert, and by strenuously opposing her 
in the first point, they might provoke her to throw 
herself upon a more violent party, and thus hazard 
the loss of all. 

While the Catholics were elated by the coun- 
tenance, protection, and direct support of the 
sovereign, as well as by the ruin of such a nume- 
rous body of their adversaries, and the Protestants 
were dismayed by the change, and terrified by the 
cruelty of government, it is not wonderful that 
Papists should have been generally successful at 
elections for Parliament. Like her predecessors, 
including her brother, Mary, who knew that the 
attempt to act without the support of Parliament^ 
would be pregnant with ruin, did not neglect to 
exert all the influence of the crown in favour of 
such individuals as could be depended on by the 
executive t; and, if we may credit the accounts 



* Strype's Ec. Mem. vol. iii. p. 154. 

t Strype has given a copy of the letter that was sent to the va- 
rious sheriffs at the caUii^ of Mary's third parliament^ which recon- 
ciled the kingdom to the Catholic church. After stating that her 
chief object was the restitution of God's glory and honour^ she pro- 
ceeds thus : '* These shall be to will and command you, that, not- 
withstanding such malice as the Devil worketh by his ministers, for 
the maintenance of heresies and seditions, ye now on our behalf ad- 
monish such our loving subjects, as by order of our writs, should, 

VOL. I. I 



114 INTRODUCTION. 

trammitted, foreign gold was liberally distributed 
at elections, while Protestants were driven away 
by violence ;-^pen8ions, and bribes in money, re- 
warded the political profligacy of members in 
both houses ; false returns operated to the exclu- 
sion of some, and several of the most spirited 
were debarred the lower house by force •• In the 

within that ocmnty^ dioose kni^ts, dtizentj and hvzgtnes^ to ce- 
pair from thence to this our parliament^ to he of theii inhahitants^ aa 
the old laws require^ and of the wise^ gnve^ 9nd Catholic sort, 
mtA as indeed mean the true hononr oi God^ with the prospe* 
rity of the cofmmonwealth/' She then dedaxes^ that no man's pos- 
sessions shall be touched as was falsely nunoured^ " by such as 
would have their heresies return, and the realm, by the j«st wrath 
of God be brought to eonfusion." She requkes the 8keri£& i^eedily 
to apprehend the spreaders of such rumours^ that they may be sharply 
punished. Ecdesiastical Memorials, toL iii. p. 155. It is unnecessary 
to remark, that when we have direct proof of such undue influence bar- 
ing been used in elections for the third parliament, we cannot withhdd 
our assrat to the accounts transmitted to us by less unquestionable 
authority of the practices on other occasions. Mar/s letter, however, 
was scarcely so bad as that adopted by her brother the year befbre hia 
death; tet he concludes his letter thus : ^' Our pleasure is^ that where 
Q«i7 privy council, or any of them, within their jurisdictions, in our 
behalf aball recommend men of learning and wisdom, in such case 
their directions be regarded and followed, as tending to the same 
whieh we desire, that is, to have this assembly to be of the most 
chiefest men in our realm lor advice and good council." Ecclesiastical 
Memorials, vol. ii. p. 394 and 5. In spite of all the abuse which was 
thrown out against Mary for interfering with elections, one of the first 
acts of Elizabeth was to follow the example. Strype's Ans. vol. i. 
pw 33; Intred. § S. 

*- Burnet, Hkt of Ref. voL iii* p. 453 and 4. Thk author quotea 
fnoBk oneBeale^ the derk of the council in Eliwbeth'a time, and he says, 
'^ the same wiiter informs us, that in many places cf the country 
men were chosen by force and threats; in otiber ^aees, those em- 
ployed by the cmnt did by violence hinder the Commons from coming 
to choose, in many places false retmrns were made; and that some 
were tiolently turned oat of the House (tf Commons." P. 454. An. 



INTRODUCTION. 115 

upper hpiiae, the spiritual peers were changed, 
and their number enlarged by a partial nomina- 
ti<w of ^bots, while the numerous places, &c. ap- 
pear to btve had a due effect upon the tempond, 
in completing their apostacy. 



1553. See ia page 471, an account of 1,200,000 crowns, equal to 
jCiOO, 000 Sterling, haTing been sent by tHe emperor, to be distributed 
amoi^t thtf nobility and leading men, to reconcile them to the mar- 
ru^, and to enable them to carry elections. See also p. 516, 517. 
" Gardiner," says Burnet, '^ had beforehand prepared the Commons," 
(of the new parliament, which met in April 1554,) '' by giving the 
most considerable of them pensions; some had £200, and some £100 
a^-year for giving their voices to the marriage," p. 500. ^^ Common 
justice was denied in Chancery to all but those who came into these 
designs.'* p. 472. 

Mr. Hume appears to treat the idea of undue influence as ridicu« 
Ions, (vol. iv. p. 378.) and states, that Fox, who is particular in 
ffiVTDg an account of aU those matters, makes no mention of any such 
thing. But the preceding note proves, that undue influence of a 
certain kind was resorted to, and yet Fox does not allude to it. 
Indeed the merit of that writer is in a measure conflned to his 
particular subject — giving an account oi the martyrs, and progress of 
religion. In the 13th of Elizabeth, a member of the Lower House, in 
ihe course of a long speech about the propriety of burgesses residing in 
or near the burghs they represent, to prevent undue influence, says, 
" In Queen Mary's time a council of the realm/hot the Queen's Privy 
Council, did write to a town to choose a bishop's brother, and a great bi- 
shop's brother it was indeed, whom they assured to be a good Catholic 
man, and willed them to choose to the like of him some other fit man. 
The council was answered with law, and if all towns in England had 
done the like in their choice, the crown had not been so wronged, and 
the realm so robbed with such ease, at that parliament, and truth ba- 
nished as it was." D'Ewei^ Journal, p. 170. But, as the object 
which Mr. Hume aims at throughout his history, is to establish that 
the Lower House was regarded as of little importance, and a seat con- 
sidered a burthen, it may not be improper to investigate the matter a 
little. Even in the third of Edward I. it appears by the statute of 
Westm. c 5. that undue means were apprehended. For the statute 
runs thus : '' And because elections ought to be free, the king com* 



116 INTRODUCTION. 

With all her furious bigotry, Mary was politic 
enough to. endeavour to conciliate the affections of 
the people, by remitting ungathered taxes which 
had been granted during the late reign, by assur- 
ing the new proprietors of church lands, that their 



mandeth upon great forfeiture^ that no man by force of anni^ nor by 
malice^ or menacing, shall disturb any to make free election." The 
statute, 7 Henry IV. c. 15. runs thus: '^ Our lord the King, at the 
grievous complaint of his commons in this present parliament, of the 
undue election of knights of counties for the parliament, which be 
sometime made of affection of Sherifis and otherwise, against the form 
directed to the Sheriff^ to the great slander of the counties and hin- 
drance of the business of the commonalty," &c. This was confirmed 
by 1 Henry V. c. 1. — ^By 8 Henry VI. c. 7. divers penalties were or- 
dained. The abuse had proceeded to a great height, as appears by 
23 Henry VI. c. 14. By that statute any sheriff who made a false 
return, was to pay damages to the party aggrieved, of £100, besides be- 
ing subjected to the penalties. The whole act is very precise in guard- 
ing against such practices. In the 50th of Edward III. the Dukeof Lan- 
caster is said to have so packed a parliament, that except twelve, all 
the Lower House were under his controul. Daniel, p. 232. It was 
one of the articles (the 19th) against Richard IL that he packed par- 
liaments — '^ the aforesaid king that, in his parliaments, he might be 
able more freely to accomplish the effects of his headstrong will, did 
very often direct his conunands to his sheriffs, that they should cause 
to come to his parliaments, as knights of the shires, certain persons 
by the said king named; which knights, being his favourites, he 
might lead, as often he had done, sometimes by various menaces and 
terrors, and sometimes by gifts, to consent to those things that were 
prejudicial to the kingdom, and exceedingly burthensome to the peo- 
ple ; and especially to grant to the said king a subsidy in wool, '^ for 
the term of his life," and another subsidy for certain years, thereby 
too grievously oppressing his people." Knighton, p. 2751. Howel'a 
State Trials, vol. i. Holinshed makes it the seventeenth article, p. 
502; and both he, and Hayward, (who by the way has it the 19th) 
express the article somewhat differently : '^ At the summons of Par- 
liament, when the knights and burgesses should be elected, and the 
election had fully proceeded, he put out divers persons elected, and 
put in others in their places to serve his will and appetite." Hayward, 



introduction; 117 

rights would be confirmed, and by professing the 
utmost moderation at first, even in regard to reli- 
gion, — a subject on which she disclosed her plans 
gradually, and only as she conceived that she might 
do it with safety. To the Suffolk men, who were 

p. 198. We have already seen that the same charge was brought 
agamst his successor ; and the Kentishmen under Jack Cade complain 
thus in their 13th article — an article which^ whether true or false, 
proves the understanding of men in that age. ^' The people of the 
said shire of Kent maie not haue their free election in the choosing of 
knights of the shire : But letters haue beene sent from divers estates 
to the great rulers of all the countrie, the which embraceth their 
tenants and other people by force, to choose other persons than the 
commons' will is." Holinshed, vol. ii. p. 633. By the way, the whole 
articles are curious : The people complained of being tricked out of 
their properties by great men. On the subject of early election laws, 
see Henry, vol. x. p. 59. VTe have already seen how succeeding 
monarchs acted. In opposition to these facts and authorities, Mr. 
Hume says, that, even in Elizabeth's time, '* a seat was regarded as 
a burthen, rather than an advantage," (voL v. p. 183.); and in a note 
to this he uses these words : ^^ It appeared this session, that a bribe 
of four pounds had -been given to a mayor for a seat in parliament. 
It is probable that the member had no other view than the privilege 
of being free from arrests." Now we have already ^een that Eliza- 
beth sent letters to . the high sheriffs in the first of her reign, and 
says Mr. Strype, *' the same day Robert Gascoyn, John Winter, 
Thomas Clark, &c. messengers being sent with letters to the high 
sheriffs, I suppose for the purpose aforesaid. Sir John Mason, trea- 
surer of the Chamber, was ordered to pay them such sums as he 
should think necessary." Annals, vol. i. p. 32. We have likewise 
alluded to a speech upon elections in the 13th of Elizabeth ; and to 
that as well as the answer by Mr. Bell about noblemen interfer- 
ing with them, we again refer. See D'Ewes, p. 170. In the 43d 
of Elizabeth, a case of violence dune under the cognizance of Par- 
liament, and it was stated that the parties were ready to engage 
with drawn swords, that the sheriff with the utmost difficulty 
pacified them; and, said he, in a letter which was read to the 
House, '^ fearing lest by drawing such a multitude together, 
there might great danger and bloodshed happen, I made pro- 
clamation that every man should depart." Id. p. 627. Let us now 



118 INTRODUCTION. 

SO instrumental in vindicating her right to the 
throne in opposition to the party for Lady Jane 
Gray — an act for which they were ill requited*—^ 
she declared she did not mean to make any altera* 

consider the case Mr. Hume alludes to^ where the member was 
convicted of having given a mayor four pounds. Every one must 
be aware of the difficulty of proving bribery at an election; and 
that where evidence can be brought^ of any sum however smaU 
having been given^ large sums are always presumed. But it may be 
alleged^ that the notions of the present times are inapplicable to the 
ancient. The course pursued by the commons of that age^ however^ 
sufficiently evinced the reverse^ for^ in that very case^ they annulled 
all Inmds granted for votes ! — a sure proof of their idea of the extent 
of the corruption. D'Ewes, p. 182. An. 1571. 

Mr. Hume's observations in this place are totally irrecondleable 
with his remarks upon the 8th Henry VI. c. 7. & 10. c. 2. which 
restricted the^Slective franchise in the shires to those possessed of free- 
hold^ to the annual value of forty shillings. He there says^ ** we 
may learn from these expressions^" (those used in the statute) ^' what 
an important matter the election of a memba* of Parliament was now 
become in England^" &c. vol. iii. p. 913. It is inconsistent with his 
theory to suppose that the commons fell back; and^ therefore^ we must 
conclude^ that as Mr. Hume wrote the late part of his work firsts he 
had formed a theory regarding the constitution incompatible with hia 
subsequent discoveries. In r^ard to Beal^ whose authority he treats 
with contempt^ it may be observed^ that^ whether the facts narrated 
by him be true or false^ they still affi>rd dear evidence of the under- 
standing on that subject of his own age ; for why should he invent 
or relate circumstances which people never suspected the existence of? 
His testimony^ however^ derives strong corroboration from the other 
indisputable evidence transmitted. 

Archbishop Whitgift used all his influence '* to prevent unfit men^ 
especially disaffected to the present constitution of the Churchy from 
coming there/' that is, to Parliament. Strype's Life of Whitgift, 
p. 508. 

On this subject of corruption and undue influence at elections, we 
cannot forbear from remarking, that undertakers, as the agents for 
the crown on such occasions were denominated, were declared in 1614 
to be worse than the gun-powder traitors. Journals of the Commons, 
p. 470. See also, on this subject, p. 478. 



JKTRODVCTION. 119 

tion in religion : she assumed a bolder tone to the 
council, yet, even then, her language was ex- 
tremely moderate — " that though her own con- 
science was settled in matters of religion, she was 
resolved not to compel others but by preaching of 
the word :'* But, in a few days, she issued a pro- 
clamation, in which she intimated that she would 
not compel others to be of her religion—" till pub** 
lie order should be taken in it by common assent," 
— Slanguage which indicated that she expected the 
assistance of parliament in restoring the old wor- 
ship. The most intolerant, blood-thirsty sects are 
ever the readiest to exclaim most loudly against 
the abominable cruelty and injustice of persecu- 
tion for conscience-sake, when themselves are the 
object of it*, and, at the beginning of this 
reign, Parliament was incited to give licence to 



* Is it possible^" says Ndal^ in page 103^ '* after sudi a lelatioB 
of diiags^ for any Protestant to be in love with High Gommisaona^ 
with oaths ex officio, and laws to deprive men of their lives^ liberties^ 
and estates^ for matters of mere oonsdenoeF And yet these very re- 
formers^ when the power returned into their hands^ were too much 
inclined to these o^nes Of ^nnielty." Aa persecutioa^ how nmeh 
floever encouraged by each party against its adversaries^ was r^^axded 
by its victims with ev«7 sensation of hoKror^ so was its anthon. 
Bishffp Gardiner is dittt described by a ecnt^nponry^ (Ponet)^ 
** This Doctor hath a swart ooloor, han^ng look, frowning brawi^ 
eyes an indi within his head, a nose hooked like a hasasad, nostrife 
Hke a horse, ever snuffing into the wind, a sparrow mouth, great 
pawB like the devil, talons on his feet like a gripe, two inches longer 
than the natmral toes, and so tied with sinews, that he cannot abide 
to be touched, not scarce aufier them to touch the stones. And 
nature having thus shaped the form of an old monster, it gave him 
a vengeable wit," &c Strype's Ecclesiastical Memorials, vol. ill. p* 
271, &c. 



120 INTRODUCTION. 

persecute by the most bitter invective, in the 
mouths of the Queen's councillors and expectant 
lawyers, against the statutes about religion which 
had been passed in the two preceding reigns, — 
statutes which they stigmatized " as bloody, and 
cruel, like Draco's laws written in blood, and more 
intolerable than any that Dionysius or any other 
tyrant ever made *." 

Packed and guilty as her parliaments were, Mary 
did not find them all compliance. The first was 
dissolved, because it would not consent to her 
marriage with Philip — an opposition which pro- 
ceeded rather from civil than religious motives, 
and, in some degree from a dread of Spaniards en- 
grossing English offices t. The frequent dissolu- 

* Strype's Ecclesiastical Memorials^ vol. iii. p. 39. In 56^, 
Cardinal Pole having been introduced into Parliament as the pope's 
legate^ declaimed against the misery of the two former reigns. '^ For," 
said he, ^' those that live under the Turk may freely live after their 
conscience, and so it was not lawful here." Yet his object was to 
persuade the legislature to persecute the reformers. Fox's Martyr, 
vol. iii. p* 109. — But the Protestants had, after all, little cause to 
complain, since they suffered upon their own principles. Mary had 
narrowly escaped the death of a heretic in her father's time, (Bur- 
net, vol. iiL p. 43S.) and her humble solicitations to be allowed 
mass in her brother's reign were denied. She was told that the king 
could not bear with her conduct in this respect longer, ^' without 
some sudden amendment." But she answered resolutely, her soul 
was God's, and her faith she would not change, nor dissemble her 
opinion by contrary doings. " It was told her that the king con- 
strained not her faith, but willed her not to rule as a king, but obey 
as a subject," Strype's Ecclesiastical Memorials, vol. iii. p. 251. 
See whole chapter, b. ii. c. 1. How ready Cranmer — who is called 
gentle, &c..was to persecute we have already seen. 

t Strype's Ecclesiastical Memorials, vol. iii. p. 126, 251. 



INTRODUCTION. 121 

tions prove how anxious she was to try her for- 
tune at new elections ; and a band of patriots 
perceiving that all their efforts to serve their coun- 
try in such an assembly, were unavailing, openly 
seceded from the Lower House*. In one instance, 
too, she got a memorable check, which illustrates 
the view we have taken of the posture of affairs. 
In the year 1554, (she was proclaimed in July 
1553) when her third parliament passed a sta- 
tute, reconciling the kingdom to the Romish see, 
they added a proviso that all settlements of the 
church lands which had belonged to any bishop- 
rics, monasteries, or other religious houses, should 
continue unaltered, and unmolested by ecclesias- 
tical censures or laws. Cardinal Pole, who had 
arrived in England as the Pope's legate, though 
he conceived it prudent to submit to the proviso, 
denounced heavy judgments against all who with- 
held the church's patrimony — judgments which 
these Catholics disregarded j but the Pope, pre- 
tending that the legate had, in this instance, ex- 
ceeded his instructions, refused to confirm his act, 
and published a bull, by which he excommunicat- 
ed all who held and refused to restore the eccle- 

* Coke^ 4 Inst. p. 17. There was an information filed by the 
attorney-general against thirty-nine members for deserting their 
places in Parliament^ An. 1. & 2. P. & M. and Plowden^ the great 
lawyer^ was one of the number ; but he pleaded that he had always 
attended from the beginning to the end of the Parliament^ a circum- 
stance which had escaped Mr. Strype. See Ecclesiastical Memorials^ 
Tol. iii. p. 165. The bill for repealing King Edward's laws about re-^ 
ligion was debated six days. Burnet^ pt 459. 



1S& INTRODUCTION. 

siastical property*. The excommunication was as 
little regarded as the legate's denouncement of 
judgments ; but from the conduct of the Pope, 
the feelings of such of the party as held none . 
of the lands, and the temper of the Queen, 
the proprietors laboured under fears of eject- 
ment f, which had a strong effect on their con- 
duct ; and Mary soon convinced them that their 
apprehensions were not altogether groundless. 
iSupposing herself with child, and near her de- 
liveiy, she, on the S8th of March, 1555, sent for 
part of her council. Lord Treasurer Paulet, 
Sir Robert Rochester, comptroller, Sir William 
Petre, Secretary of State, and Sir Francis Ingle- 
field, master of the Wards, and expressed to thetn 
her intention of restoring that portion of the 
church lands which was in the possession of the 
crown. The answer of the Council is memorable : 
<< The Lords thought requisite to direct some course, 
whereby she might satisfy her desires to her own 
great honour, and yet not alienate too much at once 



* Biimet^ vol. iii. p. 530. et seq. p. 667, Si 660, Strype's Eccle- 
siastical Memorials^ toL iiL p. 159. et seq. Neal^ vol. i. p. 95* 

t Burnet^ vol. iii. p. 536. & 577. Some applied to the Pope for 
bulls of dispensation for holding those lands. Strype's Ecclesiastical 
Memorials^ vol. iii. p. 162. Osbom says^ that Sir John Parsons told 
him he had seen a bull amongst Selden's antiquities^ oonfirming ihe 
rights of the possessors to the church lands: and it is not improbable 
that a bull might have been prepaid against contingencies^ though not 
divulged^ as matters were otherwise ananged, and the Pope would 
naturally renounce nothing he ooiold pretend a daim to. But, on the 
other hand^ the bull in Selden's collection^ might be in favour of 
an individual. Church lands sold at low rates. Osbom, p. 376. 



INTRODUCTION. 123 

of the public patrmamf**^ Perceiving that it was 
vain to dissuade the Queen entirely from her pur* 
pose, they advised the erection of some religious 
houses; and the project was immediately executed. 
This .declaration of her feelings, with the re-esta- 
blishment of some religious houses, was followed 
by an attempt to persuade Parliament into a ge- 
neral restitution of church property; but how- 
ever that body could express their zeal in cruel 
laws, they were not prepared for such an act of 
self-denial, and some of them, laying their hands 
upon their swords, declared they knew how to de- 
fend their own propertyt. 

It is unnecessary to say in relation to this 
short reign, that it was a period inauspicious to 
public liberty : Besides the sources of influence 
which have already been developed as at this 
time belonging to the throne, the Catholic party 
were too eagerly bent upon improving their pre- 
sent advantage against the adverse faction, to 
quarrel with little stretches of prerogative, while 
the Protestants durst not attempt, regularly, to 



* Heylin'ft Hist, of Queen Mary> p. 65. Scott's Somers' Tracts^ 
vol. i. p. BSf 56. 8ee Heylin^ p. 41. as to the motives of Parliament 
in reconciling the kingdom to Rome; and in p. 53. the feelings upon 
a motion to restore the church lands. 

f Heylin^ p. &&• Neal^ vol. i. p. 96. Pari. Hist. vol. i. p. 636. 
Burnet^ vol. iii. p. 571^ 577^ 581. The parliament met in October 
1555^ and shewed a very different temper from what they had pre- 
viously done^ being equally alienated from the Queen and die clergy* 
A subsidy '^ was opposed with great vehemence. It was said that the 
Qaeen had profusely given away the riches of the crown^ and then 
turned to the laity to pay her debts : Why did she not rather turn 
to thf spirituality?" Id. p. 581. 



124 INTRODUCTION. 

oppose public measures, and the aristocracy had 
too deep a stake to provoke the Queen on subor- 
dinate points. The proceedings of such a reign, 
therefore, ought never to be cited as illustrating 
the ancient constitutional principles of the English 
government ♦. 

Humbled by adversity, and terrified by the cru- 
elty of government, the majority of the reformers 
submitted to a season of injustice, in the hope 
that, with the life of the reigning monarch, their 
calamities would terminate, and their party be 
raised from degradation. The patience with 
which many of them endured torments, in the 
cause of their religion, by begetting admiration, 
more widely diffused their principles, while it ex- 
cited the deepest abhorrence against Mary and her 
husband, and though sham-plots, the resort of a 
wicked party to obtain a pretext for cruelty, were 
devised, yet the real spirit of revolt, manifested 
in repeated insurrections, which, though ; quel- 
led, did not either exhaust, or break, the spi- 
rit of the party t, would lead us to infer that 



* To strengthen her adherents with military power, Mary granted 
licences of retainder to them against the laws. About two thousand 
retainers were thus kept up. Elizabeth also granted licences, but 
neither so many as her sister had done, nor for such a number of re- 
tainers by any individual. Thus Bishop Gardiner had 200, while 
Archbishop Parker, in the next reign, had only 40, and the Duke 
of Norfolk 100. Strype's Ecclesiastical Memorials, vol. iii. p. 479. 
Mary also raised an extraordinary guard. Id.^ p. 426. 

t The Protestant party now appealed to the constancy of their 
martyrs as a proof of the goodness of their cause ; but their language 
was very opposite in the preceding reign. Latimer, in his third ser-i 
mon before the king thus expresses himself: " This is no good ar-» 



INTRODUCTION. 125 

this reign could not have been long protract- 
ed *. Many of the leading reformers, however, 
fled into Protestant countries, where they prayed 



gument^ my friends. A man seemeth not to fear deaths therefore his 
cause is good. This is a deceiuahle argument. He went to his death 
holdly^ ergo, he standeth in lust and honest quarrell. 

'^ The anabaptists that were burnt heere in many townes in Eng- 
land, (as I heard of credible men, I sawe them not myselfe) went to 
their death even intrepide, 9& ye will say, without any feare in the 
World, cheerefully* Well, let them goe. There was in the old 
Doctors' times another kinde of poysoned hereticks, that were called 
Bonatists : and these hereticks went to their execution, as though 
they should have gone to some iolly recreation or banket, to some bel- 
ly cheere, or to a play. And will you argue then ? He goeth to his 
death boldly and cheerefully, ergo he dieth in a iust cause }" &c. 
P. 55, 5Q» The Lutherans abroad called the English martyrs in 
Mary's reign, '' the Devil's martyrs," because they denied the corpo- 
ral presence of Christ in the eucharist. Note by Maclaine to his 
translation of Mosheim, vol. iv. p. 388. 

The Protestants appear to have been exceedingly imprudent in 
provoking vengeance against themselves. After some executions of 
those engaged in Wyatt's insiirrection, a cat, in the habit of a priest, 
with a shaven crown, and a piece of paper in her fore claws, in the 
shape of, and representing the wafer, was hung upon a gallows, near 
the cross, in Cheapside, on which one of the rebels had been hanged. 
Strype's Ecclesiastical Memorials, vol. iii. p. 120. Heylin, p. 47. 
But the following, which we shall give in the words of Bishop Bur- 
net, was much worse. '^ There were," says he, ^^ many ludicrous 
things every where done in derision of the old forms, and of the 
images : many poems were printed, with other ridiculous representa- 
tions of the Latin service, and the pageantry of their worship. But 
none occasioned more laughter than what fell out at Paul's the Eas- 
ter before; the custom being to lay the sacrament into the sepulchre 
at evening, on Good- Friday, and to take it. out by break of day on 
Easter morning. At the time of the taking it out, the quire sung 



* As for sham plots, see Burnet, vol. iii. p. 569. For discontents, 
p. 649. A small supply was given in 1558, after several days debate, 
though the situation of affairs was urgent, p. 651. 



126 INTRODtJCTION. 

to be allowed that freedom in the worship of their 
creator, which was inhumanly denied them in 
England. Had they consulted their own bosoms^ 
they might not have been disappointed in the re- 



these words^ Surrexit^ non est hie ; He is risen, he is not here. But 
then the priest looking for the host^ found it was not there indeed^ 
for one had stolen it out^ which put them in no snail disord^f; but 
another was presently brought in its stead. Upon this a ballad fol* 
lowed^ that their God was stolen and lost^ but a new one was made in 
his room. This raillery was so salt^ that it jMrovoked the clergy 
much. They resolved ere long to turn that mirth and pleasantness 
of the heretics into severe mourning." vol. iii. p. 524, 525. By the 
way, this passage by the right reverend and worthy prelate is scarcely 
in good taste, though there is a great apology for the Protestants <^ 
that age: out of 16,000 clergymen, 12,000 had been turned out of 
iheir livings on account of their mamages, and they naturally were 
instigated to revenge themselves by satire. But the folly was gross. 
Some of the Protestant preachers in their private congr^ations went 
very far against the Queen herself: one Ross, used to pray, " that God 
would either turn her heart from idolatry, or else shorten her days'* 
Their mirth at her false conception, for the circumstance '^ made 
much game," was extremely provoking. Heylin, p. 47. 

The kingdom is said to have been greatly afflicted by divine vengeance 
during this reign, which was manifested in pestilence, famine, immode- 
rate rains, and at other times immoderate droughts, tempests, deluges, 
strange diseases, &c. &c. the like of which had never been known be- 
fore. Strype's Ecclesiastical Memorials, p. 476. Burnet, p. 661. Eliza- 
beth's reign was free from such evils ; but then the people suffered 
from another source. '* *Tis strange," says Strype, '^ how sorceries 
prevailed, and the mischiefs they did." Annals, vol. i. p. 7. Bishop 
Jewel, in a sermon before her majesty, says, ^' By the way, to touch 
a word or two of the matter, for that the horrible using of your poor 
subjects enforceth thereimto. It may please your grace to under- 
stand, that this kind of people, I mean witches and sorcerers, within 
these few last years, are marvellously increased within your Grace's 
realm. These eyes have seen the most evident and manifest marks 
of their wickedness. Your grace's subjects pine away even unto the 
death, their colour fadeth, their flesh rotteth, their speech is benumb- 
ed, their senses are bereft. Wherefore your poor subjects' most hum- 
ble petition unto your Highness is, that the laws touching such male- 



INTRODUCTION. 127 

suit, as they would there have discovered that in- 
tolerance wa$ not confined to Catholics : The ri- 
gid Lutherans refused them an asylum, because 
they rejected the idea of the corporal presence of 
Christ in the Sacrament ♦. But, in France, Ge- 
neva, and those parts of Switzerland and Germany, 



ftctan xoay be put in due exeeation. For the shoal of them is greats 
their doings horrible, their malice intolerable, the examples most 
miserable : and I pray God they never practise farther than upon the 
subject." Jewel's Works, p. 204. Many have laughed at this Queen's 
sacce9S0v for his superstition; but the opinions which he maintained 
weve vniTersal in that age. Parliament passed statutes against 
witches. Burghley had such an opinion of astrology, that he had 
Elizabeth's nativity cast, to ascertain whether she would marry, and 
wrote out the judgment with his own hand, in Latin. A copy of it 
is preserved by Strype. Annals, vol. ii. p. 16. Appendix, No. IV. 
Sir Thomas Smith ^^ stutied astrology much." Id. p. 17. In 
an after age. Sir Matthew Hale declared that he had ho doubt 
whatever of witchcraft. Howel's State Trials, vol vi. p. 699. 
The whole trial and matter furnished there, are remarkably 
curious. Addison, at a later period says, ^' I cannot forbear think- 
ing that there is such an intercourse and commerce with evil spirits, 
88 that we express by the name of witchcraft." Again, he says, ri^ 
ther un]^iiIo8ophieally, *^ I believe, in general, that there is such a 
thing as witchcraft; but, at the same time, can give no credit to any 
particular instance of it." Spect. paper on Witchcraft, "VHiite Mole. 
It is probable that all the phenomena described by Jewel really oc« 
carred: £», whoever wiH look into Bryan Edwards' History of the 
West Indies, will find that the consequences of the imaginary pow- 
ers of Obeah upon the negroes are not inferior to the bishop's de- 
scription. A negro who suffers under this imaginary evil, ^^ believes 
himsdf to be the victim of an invisible and irresistible energy. Sleep, 
appetite, and cheerfulness forsake him ; his disturbed imagination is 
haunted without respite; his features wear the settled gloom of 
d«i^ondency: dirt, or any other unwholesome substance, becomes 
his (mly food ; he contracts a morbid habit of body, and gradually 
sinks into the grave." Vol. ii. p. 91. Edit. 1793. 

* Note by Maclaine to his translation of Mosheim, vol. iv. p. 368« 
Edin. 1819. 

3 



128 INTRODUCTION. 

where the reformation had been more complete, 
they were received, and treated with the utmost 
kindness. Yet exile, and all the sufferings of their 
party, could not inspire them with unity, or for- 
bearance towards each other. King Edward's 
Kturgy had been regarded by many of the English 
Protestants as only an approach to reformation; 
and farther alterations were meditated. Part of 
the exiles, therefore, who disliked the ceremonies, 
as savouring too much of the dregs of popery, re- 
solved to follow a purer worship ; but another par- 
ty, maintaining that, however the matter might be 
viewed abstractly, this was not a time for splitting 
upon minor points, and giving their enemies an 
advantage, by the restless spirit of change which 
their conduct implied, adhered strictly to the ser- 
vice-book. Forgetting their mutual grand adver- 
saries, these parties quarrelled bitterly upon this 
subject : Foreign divines were appealed to, who, 
of course, interfered only to widen the breach ; 
and the nonconformist party having got the appro- 
bation of Calvin, were more strongly attached to 
their own opinions, while they imbibed, or rather 
were confirmed in those republican principles of 
church government, which afterwards distinguish- 
ed so great a portion of that body who were deno- 
minated Puritans. To this schism has been traced 
the commencement of that great division of Prote- 
stants into conformists and nonconformists, which 
was, in an after age, productive of such conse- 
quences; but appearances had indicated some- 
thing of the kind earlier, and even in England, 



INTRaDUCTION. 129 

they could not agree in the very hottest hour of 
persecution. Notions regarding predestination, 
free-will, and grace, which subsequently became 
so important, even then agitated the reformers, 
while some professed arianism and other tenets, 
equally remote from the ordinary belief*. 

But, however the reformers might disagree 
amongst themselves, they all, as a body, looked for. 
ward to Elizabeth as to a deliverer, and they were 
not disappointed, though her measures indicated 
the spirit of a politician rather than of a religionist. 
Dangers beset her very entrance to the throne, and 
seemed to thicken upon her in the progress of her 
reign. The catholic party, numerous and for- 
midable, could not easily bear the overthrow of 
their religion, accompanied with individual dis- 
grace, nor its ministers and great adherents relin- 
quish political as well as ecclesiastical ascendancy : 
and their predilections were Encouraged, their 
plans for recovering the superiority fomented, not 
only by the Pope, but by foreign princes who 
wished to embroil English affairs, while the Rom- 
ish clergy, driven from their livings, were ever 
ready to stimulate flagging zeal and flatter it with 
hope. Bigotry, when associated with politics, be- 
sides the black passions to which it directly gives 
birth, covers with a pretended holy garb, even to 
one^s own eyes, the most selfish and malignant ; 

* Strypa's Ecclesiastical Memorials, vol. iii, c. 18, 31, 33, 41, Vt, 
Life of Grindal, p. 10. Heylin's Hist, of Qaeen Mary, p. 39. et seq, 
Strype's Annals, vol. i. p. 103. Burnet, voL iii. p, 612. et seq, Neal, 
p. 103. et seq, 

VOL. I. K 



180 INTRODUCTION* 

^hile, by shutting against its opponents every 
avenue of sympathy, the renl source of moral feel* 
ing, it stifles the voice of conscience, and, by gain* 
ing the support of a faction, kintUe? indignation 
against public reprojich, thajt would otherwise bumf* 
ble the guilty under its lash. It was necessary to 
disarm such a body, it was prudent not to drive 
them to despair, it was equally politic and just to 
resist in their favour the violence and vengeance of 
the protestants ; and too much praise cannot be 
given to the wisdom of Elizabeth's council, at 
least in the early part of her reign. Her great 
minister Cecil was the first to broach the princi- 
ples of toleration, and point out the only grounds 
upon which any interference with religious sects 
can be justified*. But Elizabeth shewed that 



 Heylin' tells us that Cardinal Pole dissuaded from persecution 
** followHig therein, as he affirmed, the counsel sent unto the Queen,'' 
(Mary) ^^ by Ch»les the Emperor, at har furst coming to the crown, by 
'whom she was advised to create no trouble unto any man. for matter 
of conscience, but to be warned unto the contrary by his example, who, 
by endeavouring to compel others to his own religion, had tired and 
fpent himself in vain, and purchased nothing by it but his ovm dis** 
honour." Hist, of Queen Mary, p. 47. Hepoe I am not sure that I 
have not gone too far in ascribing the merit to Burleigh of first 
broaching the principles of toleration. But his whole paper i^ excel- 
len.t« Scott's Soin^ Tracts, Vol.. i. p. 164, et seq, AVhoevfr atten** 
lively peruses it may question the account given by certain historians 
of the cause of Elizabeth's policy towards Scotland. It f^pears to 
have been chalked out by Burleigh at the very beginning of her reign.' 

In regard to persecution, he says, '^ I account that putting to death 
doth no ways lessen them^ since we find by experience that it work- 
eth no such effect, but like the hydra's heads, upon cutting off one, 
seven grow up, persecution being accounted as the badge of the 
thurch, &C. ; so that, for my part, I wish no lessening of their num- 



INTRODUCTIOK. 191 

her £>rbear2inee towards the catholics savoured 
of partiality, on account of their avowed po» 
iitical principles, 'which accorded with her own 
ideas of prerogative, while, for an opposite reason, 
she eotertaited an aversion to the puritans *. The 
pomp« ceremonies, and incomprehensibilities of 
Catholicism, inspire the vulgar mind with awe and 
veneration for the clergy, who, when they depend 
in any degree upon the prince, are generally dis« 
posed to advance the prerogative that it may re- 
act in their own favour : it is not the religion of 
the heart, but of the imagination, which enslaves a 
people, and Elizabeth appears to have ardently de- 
sired the advantage of the latten She declared 
that religion had, under her brother Edward, been 
stript of too many of its ornaments, and she labour.' 
ed to restore them, assigning as a reason, that the 
catholics might join the English, church when they 
perceived that the departure from the Romish wa» 
not overgreat : she preserved a crucifix in her own 
chapel, and reluctandy acquiesced in their remov* 
al from other churches : she insisted on retaining 
the vestments of the clergy, which were now ah-. 



ber but by preachings and by education of the younger under good 
masters." P. 167. He alleges that the people of all ranloi loye4 
£g3rpt chiefly for the flesh pots. lb. 

See a letter from Sir F. Walsingham to a French Gentleman in re« 
gard to the principles of Elizabeth's government in religious matters;^ 
in Burnet^ vol. iii. p. 751. 

* Elizabeth told Sir Francis KnoUys^ that '* she was as much in 
danger from puritans as papists." Strype's Life of Whitgift, p^ 
062. See in Appendix^ p. 76, et seq, the points of Doctrine Dis« 
puted, and in Annals, an order to have wafer-bread—^^ for the giving 
the more reverence to tjie holjr mysteries," Volt i, p. I6i5»f 



132 INTRODUCTION. 

horred by a great part of the people : She ordered 
a committee of divines to review King Edward's 
liturgy, and strike out all offensive passages against 
the Pope, and to make the people's minds easy 
about the corporeal presence of Christ in the sacra-* 
ment. Perceiving how full of intrigue and zeal 
for the advancement of their order, the Romish 
priesthood were from their celibacy, which cut 
them off from the common sympathies of mankind^ 
she tried to prevent the English clergy from mar- 
rying, and would have absolutely forbid it, had it 
not been for the interference of her great adviser 
Secretary Cecil. Though she was thus far ruled, 
she never could be prevailed upon to revive the 
law of Edward VI. which authorized the marriage 
of ecclesiastics, but only connived at what was 
not fully warranted by law — a course which kept 
many of the leading clergy, who were married, at 
her devotion *. 

But it may not be improper to take a view of 

* There was a strong Lutheran party in the kingdom who heliey-. 
ed in the real presence^ &c. Strype's Annals> vol. i. p. 53. In proof 
of the text generally^ see Id. p. 81^ 88 ; the whole of Chap. xiii. 
p. 2li>, et seq. Chap. xli. xlii. xliii. Burnet^ vol. iii. p. 676^ et 
seq. Neal, p. 122, et seq. Strype's Life of Parker, p. 96, 107-8-9. 
Archhishop Parker heing married himself, was naturally very anxious 
for the restriction upon the marriage of the clergy heing' taken off; 
and I conclude that he had heen guilty of a little pious fraud in re- 
gard to the story of five or six priests heing prosecuted at Worcester 
for having five or six wh — s a-piece — a fact, '^ which," says Strype, 
'' was so notoriously scandalous, that the said Bishop, in a sermon at 
the Cathedral a few days after, spake of it ; and took occasion thence 
to shew how necessary it was to allow priests marriage." Id. p. 78. 
In 1572, the people were much alarmed for the Queen's safety in 
consequence of the number of catholics about the court. Id. p. 352. 



INTRODUCTION. 1 33 

m 

the various causes of the great inflilence in the 
State which was centered in this queen's person. 
The aristocracy, with a few exceptions, were, as 
has been already remarked, at the commence- 
ment of her reign, indifterent to religion. Their 

5ee Heylin's History of Elizabeth, p. Ill, 123-4* In these two last 
pages we have a proof of the pomp and pageantry in worsliip which she 
proposed to establish. When a Mr. Nowel had spoken less reverent- 
ly ^an^she wished of the sign of the cross, she called aloud to him to 
return from that ungodly digression to his text. ^^ On the other 
§ide, when one of her divines h^d preached ^ sermpn in defence of the 
real presence, on the day commonly called Good- Friday, anno 1565, 
^e openly gave him thanks for his pains and piety." P. 124. All 
Uiis of course meets with the approbation of Heylin. Elizabeth 
.vas always a politician : In her sister's time the test of heresy was 
transubstantiation or the real presence, and Elizabeth having been 
asked what she thought of the words of Christ, " This is my body," 
•«— whether she believed that the true body of Christ was in the ele- 
ments, is said to have answered thus : 

" Christ was the word that spake it, 

He took the bread and brake it. 

And what th^ word did i»ake it, 
- That I believe ^nd take it." 
In this manner she escaped from the difficulty; yet had her object 
been more than to secure a party, she would not have acted so diflfer- 
ently when she became queen* But the wisest doctors amongst the 
protestants are justly accused by their enemies of cMistantly changing 
their opinions on this subject. " As unto Dr. Cranmer, late Arch- 
bishop of Canterbury in this realm," said Dr. Feckenham, Abbot of 
Westminster, in Parliament, anno 15^9, " JJow contrary was he unte 
himself in this matter, when, in one year, he set forth a chatechisme 
in English and dedicate the same unto King Edward VI. wherein he 
doth most constantly affirm and defend the real presence of Christ's 
body in the holy eucharist ; and very shortly after, he did set forth 
another book, wherein he did most shl^nefully deny the same." Dr. 
Ridley, at one time, urged transubstantiation in the keenest manner, 
and then deserted it. Scott's Somers Tractfe, vol. i. p. 83. Their 
later doctrine seems to have been consubstantiation or impanation. 
Vet these doctors were ready to bum all that differed from what they 
happened to believe at the moment. 



I 

9 



1S4 introduction; 

« 

whole object^ from die beginning of the Refot* 
. mation, seems to have been the plunder of the 
church. While they framed duch bloody laws 
against Protestants in the preceding reign, they 
engrossed the livings of the clergy with the most 
unblushing efirontery ; and the same peers who 
had voted for king Edward's laws, passed those in 
Mary's reign, and now again were equally com- 
plaisant to Elizabeth. The commons were indeed 
changed, for elections were freer, though this 
queen, like her predecessors, endeavoured to pro- 
cure the nomination of particular individuals by 
bribes and by letters directed to the high sherifl& ; 
but the great body of the gentry are implicated in 
the charge of robbing the church in Elizabeth's 
reign, as well as in the three preceding. TTbe 
patrons frequently kept churches vacant that they 
might draw the livings j and, says Bishop Jewel, 
" I speake not of the curates, but of parsonages 
and vicarages, that is, of the places which are the 
castles and towers of fence for the Lord's temple. 
They seldome passe now a-days from the patrone, 
if he be no better than a gentleman, but either 
for the lease or for present money. Such mer- 
chants are broken into the church of God, a 
great deale more intolerable than were they whom 
Christ whipt out of the temple. And this is done, 
not in one county, but thorough England. A gen- 
tleman cannot keep his house unless he haue a 
parsonage or two in farme for his provision.'* 
When reproached with their sacrilege, they insult- 
ingly bade the preachers of the Gospel live as the 



I'KTRODUCTIOK. <1S5 

aposiles didi But the worthy £ishop shews that 
this could not be expected^ as the preachers 
thought themselves too good to become the others' 
slaves. <* Therefore," says he, " they are. weary 
aod discouraged, they change their studies, some 
btH:6me prentices, some turii to physic, some to 
law, all shun and flee the ministry ;*' whence he 
prophecies desqlation to the chmrh *• Men who 
acted upon such principles, and yet were scarcely 
secure in their property, were not likely to quar- 
rel with points of ceremony or discipline; and 
therefore, the compliance q£ Parliament, on many 
occasions; is not wonderful. But had it be^ 
otherwise, Elizabeth must still have had a com- 
manding influence in public a&irs. From the 
numbers and zeal of the Catholics^ the reformers 
were kept in perpetual alarm; and, as they re^ 



* Jewel's Works, Bermons, p. ISl, 191, 154. " The noblemen 
and gentlemen, patrons of benefices, give presentatioBs of benefices, 
either to be farmers themselves, or else with exception of their own 
tenths, or with some other condition that is worse than this,^' p. 181. 
He says that those cormpt patrons ^* leaue to take charge oyer the 
pe^le, blinde Sir Johns, not only laeke latine, but lacke honesty, 
and lacke conscience, and lacke religion." Id. p. 185. The state of 
morals was represented by this prelate as extremely corrupt. " Theft, 
&c were so common, as if it were not only lawful but commendable ; 
as if sinne were no sinne, and hell-fire a fable," p. 221^ 241. Strype's 
Life of Whitgift, p. 509. Hayne's State Papers, p. 586. Mr. Hume 
has quoted a passage from this paper, which was written by Cecil, 
afterwards Lord Burleigh, about the decay of obedience in civil policy, 
to shew that . the ideas of the people, in Elizabeth's time, had be- 
come more liberal than in the more ancient ; but from Cecil's words, 
that '' it woilld astonish any wise and considerate person to behold 
the desperation of reformation/' it is evident that he alluded to the 
non-conformists. lb. 



186 INTRODUCTION. 

garded the Queen as the bulwark of the Prote- 
stant cause, 60 the Papists considered her life as 
the grand obstacle to their recovering the asceiK 
dancy. By joining the Romish faction, she might 
have dashed all the counsels of the ruling party ; 
—and, when crossed in her measures, she, at one 
time, hinted the possibility of her being forced, by 
their perverseness, to throw herself into the arms 
of the Catholics, — ^a hint which excited the utmost 
. dismay *. The reformers themselves, though they 
all: agreed in their hatred of the Papists, and in 
regarding the Queen as necessary to them against 
that body, were prevented by their mutual dissen- 
sions from acting in concert, to obtain a reform 
of what many deemed imperfect in the new esta- 
blishment and creed, while the severity, which 
was extended to the various sects, fell short of 
what each would have inflicted on all its adversa- 
ries t. Though, therefore, by adopting high 
church principles, and favouring the Lutheran 
party, she disobliged the other sects, she seemed 
only to be in the same situation as that she would 
have found herself in, by making the principles of 
any other sect the rule of her government. 



* Strype's Life of Parker, p. 109. See Annals, vol. i. p. 452, 433, 
^ to the doctrine of the English Church. 

t Neal has occasionally a remark upon the intolerance of the nop- 
eonforpiists or puritans themselves ; hut the general strain of his work, 
is to stigmatize, as the last degree of tyranny, all interference with the 
consciences of the puritans, whom he represents as harmless, while, 
In truth, they aimed at political and ecclesiastical ascendancy, aQ4 
tliirstcd for an opportunity of playing the game of their oppressors, 



INTRODUCTION* 1 37 

. The supremacy was immediately restored to the 
crown, and matters were settled nearly upon' the 
same grounds as in her brother's reign. But, avail- 
ing herself of her situation, she a^cted to have 
derived from the act of supremacy, though it con- 
ferred no such power, a discretionary right* of re- 
gulating ecclesiastical affair^ *. The act contained 
J2L clause, however, authorizing the erection of a 
new court, that of the high commission, from 
whence sprung many alarming evils which we shall 
afterwards detail. 

In the cmirse of this reign, the higher classes 
became imbued with a spirit of religion, to 
which hitherto they had been strangers. Fami- 
lies were now well educated; and, as the cler- 
gy were the teachers, the principles of the Re- 
formation, which, from the nature of things, then 
so deeply agitated its ministers, were warmly 
transfused into their pupils. The majority of the 
clergy, however, being at that time hostile to the 
ceremonies retained, as well as to the church go- 
vernment, instilled their own ideas into the minds 
of the rising generation. The clergy were most 
interested in the nature of the ecclesiastical esta- 
blishment ; the people, including all ranks, in the 
purity of worship and doctrine. The clergy were 
no doubt anxious on this point too, and being well 
aware that, without popular support, they never 
could attain their object as to government, they, 

» 

* In 15S9, she gave this liberal interpretation of the act herself^ 
pffidally. Strype's Annals^ toI. i. p. 161. Heylin's Hist.^ of Queen 
Elizabeth, p. 109. 



1S8 INTRODUCTIOK. 

from both tkiotives^ zealously dwelt upon the defbr- 
tnities which^ they maintained) equally stained th^ 
doctrine and won^ip of the church* This spirit ^tot 
being) latteHy^ subdued by fears about the diurck 
property which the aristocmcy had aoquir^^ fw 
in the progress of this reign it was too w^ll i^on* 
firmed by time to be recovered by any union be- 
tween the sovereign and the more zealous Catho^ 
Ucs> was calculated to bdng about a greater 
change in religion ; but it was counteracted, in 
the mean time, by a terror of wild sects, to whom 
levelling principles were ascribed, and the evi- 
dent ambition of the leading cleigy who espoused 
it, as well as by the necessity of entrusting gr^at 
powers to the executive, both to secure the Queen 
to the Protestant cause, and to enable her to de- 
feat the designs of the Rbmish party, encouraged 
and assisted by foreign princes* 

Episcopal government, while it gave consider- 
able livings to a few, left the great body of the 
clergy in poverty; and, by the system df patronage^ 
and the power of the bishops, defeated the ambi* 
tiour, hopes of the aspiring, who conceived thern^ 
iselves qualified to take a lead in religious affairs. 
These were more inclined to owe their promotion 
to the popular suffrage, than to the appointment 
^ither of the sovereign or of individual subjects, 
both from the diflferent kind of qualities likely to 
recommend them, and from a hope of vast power, 
and of recovering by popular assistance, the church 
property, out of the sacrilegious hands that de- 
tained it, as well as of exempting their body from 

3 



INTRODUCTION. 139 

iftvery species of tax. From this, as well as, it is 
td be hoped, from piety, they maintained that the 
.only true church was the Presbyterian ; that the 
church government of England was unlawful and 
false, the offices of that church being invented by 
the magistrate, <^ and so no members of Christ's 
body :** "thatshe" (theQueen) "injured the church 
to keep the true officers out ; that she maimed and 
deformed the body of Christ ; that every Christian 
magistrate was bdund to receive the government by 
pastors, doctors, elders, and deacons, into the chiu'ch 
within his dominions, whatsoever inconveniences 
might follow from it ; that those who withstood it, 
held it to be laMrful for her majesty and the state 
to bid God to battle against them/' *< That none 
could be good and sound subjects that defended the 
present false, bastardly, unchristian, ecclesiastical 
establishment-~and that they who did so were 
traitors to God and his word." They therefore in- 
sisted that all bishoprics and deanries should be 
dissolved ; that all patronages should be taken from 
her Majesty and others, and all spiritual offices be 
filled by popular election, or by their elderships ; 
while they declared it to be sacrilege to detain 
from the church the property which had be- 
longed to the religious houses: " That the 
ministers and others of the ecclesiastical func- 
tion ought to be exempt from paying first-fruits, 
tenths, subsidies, and other impositions: like as the 
priests of Egypt were even under a heathen king." 
That ecclesiastical laws should be made by their sy- 
nods and assemblieSi and ecclesiastical causes, it is 



140 INTRODUCTION. 

not easy to determine what they would have com- 
prehended under this head, be cognizable only by 
their eldership, consistories, or presbyteries, then, 
on appeal, by the provincial courts, and finally, by 
their assemblies. << That aU persons, as well as 
meaner persons, must willingly be ruled and govern- 
ed, and must obey those whom God has set over them 
— ^that is,'' observes the writer, supposed to be the 
Lord Keeper Puckering — '• the just authority of ec- 
clesiastical magistrates, and must lick the dust of 
the feet of the church : That her Majesty, being a 
child of the church, is subject to censures of ex- 
communication by their elderships as well as any 
other people : That no man Ought to aid, comfort, 
salute, or obey^ an excommunicated person ; and, 
that as long as any person is excommunicated, he 
cannot exercise the magistracy." This doctrine, 
by natural inference, arrogated for the church the 
right of deposing princes and other magistrates, 
since a sentence of excommunication was attend- 
ed with that effect; but these preachers expressed 
their sentiments about deposing princes, by an 
uct of the estates, or parliament particularly, 
and circumscribing their power, nay, altering 
the whole frame of the constitution, in lan- 
guage far more unequivocal *, Their intolerance 

• Btrype's Annills^ Vol. iv. No. 94> et seq. Tie langufige of th^ 
puritans against the established ministry^ whom they called the sup^ 
posed ministry, is extraordinary : " Will you come unto them and 
see what they are ? Alas ! you can behold here no other sight, but a 
multitude of desperate and forlorn atheists, that have put the evil day 
far from them, and endeavoured to persuade their own hearts, that 
God's holy ministry, and the saving health of men's souls, are miitters 



INTRODUCTION. 141 

may be inferred from the cortsequerices which 
they wished to attach to excommunication ; but 
they did not stop there. They insisted that the 
judicial laws of Moses, for punishing certain of- 
fences by death, ought to be observed; and 
that neither prince nor law, could in justice save 
the lives of wilful offenders, such as, blasphemers 

• 

not to be r^arded. You shall find amongst this crew, nothing else 
but a troop of bloody soul-murtherers, sacrilegious church-robbers^ 
and such as have made themselves fat with the blood of men s souk^ 
and the utter ruin of the church. The whole endeavour of which 
cursed generation, ever since the beginning of her Majesty's reign, hath 
tended no other way than to make a sure hand to keep the ehurdi in 
bondage ; that being bouncT in their hands, it should not dare, for 
fear of being murthered, to seek for liberty. Of these men contained 
within the number of proud and ambitious prelates, our lord arch- 
bishop and bishops, god-less and murdering non-residents, profiine 
and ignorant, idol shepherds and dumb dogs, I will say no more in 
this place but this — How long. Lord, just and true, dost thou suffer 
thine inheritance to be polluted and laid waste by this imcircumcised 
generation ? O I thou that hearest the prayer," &c. — '^ with speed 
thrust out these caterpillars as one man out of our church : and let 
the memory of them be forgotten in Israel for ever." Strype's Life 
of A^Tiitgift, p. 346, 347. See also Neal, vol. i. p. 367, for a proof of 
the virulent invective employed by the non-conformists. . Thus spoke 
. the puritans of the bishops, and in this they followed the example of 
all parties. The papists lamented the decay of all goodness, civil 
subordination, and learning. '' But obedience is gone," said Dt-^ 
Feckenham in 1 559, '^ humility and meekness clean abolished, vir- 
tuous, chaste, and strait living abandoned, as though they had not 
been heard of in the realm; all degrees and kinds being desirous of 
fleshly and carnal liberty, whereby the springalls and children are 
degenerate from their natural fathers, the servants contentious of their 
master's commandments, the subjects disobedient unto God and aH 
superior powera" Scott's Somers' Tracts, vol. i. p. 84. The papists 
called the people '' swine, and rude, and rash people," Jewel, p. 301. 
'^ It is thought,'-' says Jewel in his answer to Harding, to be tiie 
surest fence and strongest ward for that religion, that they'^(tlie 
people) " should be kept still in ignorance and know nothing. JVlx, 



] 4S INTRODUCTION. 

of God's name* conjurers, soothsayers, persons 
possessed of an evil spirit, heretics (a word which» 
of course/ comprehended all who disputed their 
discipline, doctrine, or laws,) peijured persons, 
tvilfiil breakers of the Sabbath-daj/y neglecters ef the 
sacrament without just reason, (in plain English, 
those who dissented from them in religious matters,) 
such as are disobedient to parents, or tha^ curse 
them, incestuous persons, a daughter commit* 
ting fornication in her. father's house, adulterers, 
all incontinent persons, saving simple fornicators, 
and all conspirators against any man's life» Some 
of the offences enumerated are ridiculous, but at- 
tributable to the superstition of the age j the pun. 
ishment proposed for some others is absurdly se- 
vere, and, though some of them are, unquestion* 
ably, such as must fall under the rigorous chastise- 
ment of the laws in every well governed state, yet 

Harding both in this place^ and also before^ calleth them all dog^ 
and swine^ as insensible and brute beasts^ and void of reason^ and 
able to judge and conceive nothing," p. 406. " Tertullian saith, the 
heathens, in the time of the primitive church/- were wont to point 
out, in mockery, the God of the Christians with an ass's head, and a 
booke in his hand, in token that the Christians professed learning, 
but indeed were asses, rude and ignorant. And do not our adversa« 
ries the like this day against all those that professe the gospel of 
Jesus Christ ? And, say they, who are they that favour this way ? 
None but shoemakers, tailors, weavers, prentices, such as never were 
in thie university, but be altogether ignorant and void of learning.** 
Id. p. 203. The reformers were not behind the Catholics in abuse ? 
even Wickliffe's charges against the popish clergy, that they debauch^ 
cd the wives of the nobles, gentry, &c. '^ promising to make answer 
to God for their sins," &c. were revived. Strype's Ecclesiastical Me* 
morials, vol. iii. p, 112. et seq. See Annals, vol. i. p. 123, in proof of 
the right which was claimed to depose princes, who, it was said, ^ 
owed their title only to election. 



INTRODUCTION. 14S 

it is quite indisputable, that those against heresy, 
&c. struck at every sect but their own, and con* 
tiequendy breathe an intolerance which leaves no 
doubt that, had these men, who loudly complained 
of persecution for conscience* sake, been allowed 
the power they demanded as a divine right, they 
would have set an example of cruelty and oppres- 
sion, which would have obliterated the memory of 
sufferings under the hierarchy, or made them ap- 
pear mild in the comparison. As some of their 
tenets were subversive of civil government, so 
others were equally so of civil jurisdiction.. For 
they held, " that all matters arising in their seve- 
ral limits, (though they be merely civil and tem- 
poral) if ther^ happen to be breach of charity ^ or 
wrong be {offered by one unto another, might and 
aught to be composed by the eldership ; and he 
that should refuse to be advised, should be ex^ 
communicated," (that is, be in the wretched condi- 
tion of persons whom none ought to aid, comfort, 
salute, or obey.) " That ministers of duty might, 
but should determine and decree of all, both civil 
and ecclesiastical causes, though not of the very 
fact, as civil magistrates do, yet touching the right 
and xvJmt the law is, for that thereof they are ap- 
pointed by God to be administrators *. 



* Strype's Annals,' vol. iv. No. 94. In regard to the tenets cf 
the nonconformists, see Life of Grindal, p. 1, 6, 13. Life of Parker, 
p. 220, 413. Several of them enjoyed dignities in the church, 
" They are content, said the Archbishop of York, to take the livings 
of the English church, and yet affirm it to be no church." lb. and p. 
414; see also (44G,) (447,) 492» " It is remarkable also," says 



144 INTRODUCTION. 

Taken together, the pretensions of these men 
would, if conceded, have had the effect of abso- 
lutely transferring both the legislative and judicial 
power of the state to their own body : But their 
folly was equal to their presumption. They de- 
manded, as a divine right, the restitution of the 
church's patrimony, as if the proprietors would 
have parted with it, by any thing short of a 
revolution; and, though they might have, for 
a time, embroiled the state, it is impossible that 
mankind should have, voluntarily, long submit- 
ted to their tyranny. The necessary consequence 
would have been^ that those, who had not an 
immediate interest in supporting the clergy, 
would have assisted the civil government in either 

Strype, ^' what resolutions were given to other questions^ found 
amongst the letters of Lord^ another of their ministers^ which weie 
also seized : Namely^ " How when all the church's revenues^ that 
then were, should be converted to maintain their presbyteries, her 
Majesty should be recompensed for her first-fruits and tenths : For 
that they would pay none, as being unlawful; and how the arch- 
bishops and bishops, &c. should be provided for, that the land be 
not filled with rogues;" — ^which opprobrious term was applied to 
the prelacy, who were to be turned a-begging. Life of WTiitgift, 
p. 29 i. et seq. 346, et seq, 416. Ap. p. 80. Annals, vol. i. p. 
452. Heylin, p. 132. The following is a character of puritan- 
ism : ** Imagine that you see the external face of that church, where 
you might see so many thousand superintendants, so many elder* 
ships advanced in and about the church, to make orders, and to cen- 
sure at pleasure, where the people give voices, the laity lay on hands 
the majesty of the prince excluded from all sway in the presbytery : 
AU antiquity forlorn; all coimcils utterly repelled; doctrine divided 
from exhortation; laymen deacons of the church; parish bishops; 
parrot preachers; the universities degraded of the privilege of grant-^ 
ing degrees; cathedral churches hy greedy wplves spoiled; all courts 
of justice overthrown or impaired by the consistorial court of elders/* 
Life of Whitgift, p. 3 15. 



INTRODUCTION. 145 

subduing the ecclesiastical to a cbndititm com* 
patible with the general welfare, or in entirely 
rooting out the system as pregnant with public 

and private mischief. 

Such daring principles, however, were avowed 
by a part of the nonconfprming clergy only. The 
great body indicated by their language that they 
conceived prayers, and petitions to the governors, 
the only legitimate way of seeking a reformation 
of abuses: In civil affidrs they professed princi- 
ples approaching to passive obedience, and in reli* 
gious, while they only prayed for relief, a readiness 
to submit to punishment, where they could not con- 
scientiously comply with the established ceremonies 
or doctrines. But, as they opposed the hierarchy, 
and the bent of the government, they were, ac- 
cording to the never-failing practice of ambi^ 
tious rulers, confounded with their most violent 
brethren; the submissiveness of their language 
being attributed to weakness and fear on the 
one hand, and to the desire of obtaining good 
livings in the very church they abused, on the 
other, not to any real difference in their senti- 
ments or in the tendency of their principles : And, 
it cannot be denied, that, though a few of the 
nonconforming clergy would appear to have de^ 
sired an abrogation of some ceremonies only, the 
practice and principles of the majority of those 
who afiected such meekness, did not correspond 
with their professions. It was not simple to* 
leration, but power, together with the whole 
ecclesiastical revenues, which they aspired to^ 

VOL. I. L 



14tf IKTBODUOTIOKl 

While they denied the lawfulness 6f the esta^ 
blished church, they did not scruple to accept 
of livings tinder it: — ^while they professed obe* 
dience in all civil afi&irs, they did not mean to 
confine their legislative and judicial powers, which 
they would have had independent of civil authori-> 
1y, to matters that^ in common sense^ are i^ctly 
spiritual. They denied toleration, and^ as^ theis 
eensures were to be accompanied with other thaa 
spiritual consequences, th^ Wotild have drawn 
within the pale of the church, the prqierties, K- 
berties> and even live^ of the people. When this 
is considered, though all intoleranee towiu*ds 
them must be condemned ds impolitic and unjust^ 
yet it is impossible to have much sympathy With 
their suffisrings, since the punishment met rather 
their ambitious projects than their conscientious 
Scruples, and fell far short of what they themselves 
would have inflicted on every sect that differed 
from them. 

As, with the excepti<m of such as expected dis« 
tinction in the elderships, the nonconforming clergy 
only were interested in entertaining such views, 
yte may presume that they were confined to that 
body. The people considered those mattenkin a 
religious Ught only, and, from what appears^ 
would have been satisfied with a dispensation 
from ceremonies, and some slight alterations in 
doctrine. The intolerance towards them, there- 
fore, assumes a different character ; and, had the 
hierarchy not been blinded by selfishness and love 
of power, they would have relaxed the ceremo* 



niefi^ &a td recOneUt the people a)id detach %htm' 
from amlNtioiis {»:eaehers. Instead of suspending, 
for trifling Donconfcamity, men of talent who held 
Uvings in the churdb, and thus equally creating 
enmity to the establishment in such individuals,, 
and recommending them to the people, while they 
siqipUed their places with persons notcniously^ 
insufficient, as shoemakers, t^ilors^ millet's, and 
cobblers*, they ought to have connived at' tri'* 
vial marks of nonoonfbrmity, and secured the ta* 
leots of good preachers for thci su{^port of the pre* 
s^st s^tem. 

The higher classes, however they might desire 
to circumscribe the power of the hi^archy, and wish 
a reformation in regatd to oeremonies, ncm^resi-r 
dences, pluralities, and even doetrhae,' were not 
likely to promote the amlntiaos views of the non- 
conforming clergy, whose object it was to abridge 
the privileges and lessen the property of the aris* 
tocracy : And the hierarchy, equally with the or- 
dinary ministers of thd crown, adopting the laa* 
guage of their popish predecessors M^hom they had 
supplanted, (for the language peculiar to men in 
place, and to those out of place, has been nearly 
uniform in all ages,) laboured to convince the 
aristocracy, that, however the. sectaries might pre- 
tend religious motives for disobedience, their reaj 
object was to subvert the rights of property, and 
introduce the same equality into the state as they 
called for in the church. ** Surely," said Arch^ 

• 

• Neal, voL i. p. 473; see also p. 367, 438, 476—9, 4S9. 



J45 INTRODUCTION. 

bishop Parker, in a letter to the Lord Treasurer, 
" if this fond faction be applauded to, and bom 
with, it will fall out to a popularity*' (" he meant a 
parity and equality in the state as well as the 
churchy* observes Strype in a parenthesis ; *« and, 
as wise men think, it will be the overthrow of all 
the nobility *.*' On another occasion, he remark- 
ed to Lord Burleigh, *^ that how secure soever the 
nobility were of these puritans, and countenanced 
then^ against the bishops, they themselves might 
rue it at last; and that all these men tended to- 
wards, was to the overthrow of all honourable qua^ 
lity, and setting a-foot a common wes^lth, or, as he 
called it, a popularity f." But the view which 
was taken of their alleged designs, is so concisely 
stalled in tifie following passage from Attorney- 
General Popham's speech in the Star-Chamber, at 
the trial before that court, of Sir R. Knightly, 
and others, for seditioti, that we shall make no 
apology for inserting it. " This sort of sectary, 
says he, ** are of no settled state, but seek to 
transform and subvert all. These men would 

* Strype's Life of Parker, p. (447.); see also p. 492. This arch- 
bishop all^;ed that his olject in enforcing uniformity was regard for 
the kw. He> thetrefore, in 157 S, warned the Lord Treasurer to. 
watch orer the puritans. "Doth your Lordship think/' says^he, 
^' that I care either for cap, tippet, surplice, or wafer-bread, or any 
such ? But, for the law so established, esteem them.^ n>. It is suf- 
ficiently proved in the text., that it was not an idea peculiar to the 
Stuarts, that the PresbytaJan establishment was inconsistent with 
monarchy. See farther upon this subject a letter from the Dean of 
York to Lord Burghley, dated 6th October, 1573, in Murden'§ CoU 
lection, p* 261. See also Strype's Annals, vol. iv. p. 143. 

t Strype's Life of Parker, p. (447.) 



Off MoircTioK^ 149 

have goyernm^t M ^tety several cpogregatioi), 
severally in each prdvince, M ^very diocese, yea, 
in every parish, whereuppaisroulcl ensue more 
mischief than any ,man by tongue can utter* 
Irhey themselves cannot agree amongst them- 
selves, but are full of envy and emulation ; for 
what greater en^ul^tion than to fall to conten- 
tion, ai^d from contention proceed to violence? 
But they stay not here^ nor contented with rail- 
ing . against the church and the state thereof^ 
but proceed to cotirt and the commonweal, that 
all things may contribute to preserve unity am- 
ongst the brethren : No law, no order left, all 
proprie|:y'' (property) " of things taken away and 
confounded. — But of what sort ar^ these sec- 
taries? of the very vilest and basest sort, and 
these must make confusion of all state, and so ad- 
vance . themselves in their congregations : This 
their course, . and this their purpose; so the heel 
would govern the head, ar)d not the head the heel, 
_if these men be allowed*." 

It may well be admitted^ that, however a few 
demagogues might feel, the great body of the 
people entertained no such intentions^ and that 
the hierarchy and ministers of the crown, ex- 
aggerated every motion of the nonconformists 
to promote their own anthority. But, in don- 



* Howel's State Tmk, vol. I p. ISdS and 1964. '' One (Mr. 
Dering) told the Queen openly in a aeraion, she was like an untam^ 
ed heifer^ tiiat wottM not be ruled by God's people^ but obstructed 
his worki" Life of Hooker^ foL edit. See p.. 8. ct teq. in proof of 
the text* 



1^ -niTitiwoovibK. 

Bidering the eauseB of the ififlueiicts in tbe ^ 
vVernment enjoyed by £l«sabeti)) it is eDocigh to 
3hew that such intenlHions were ascribed to the 
sectaries : For, if men, who had a stake in the 
country, were persuaded that such projects were 
contemplated, th^ would natieradly lully rannd 
the throne, and strengthen the prerogative ibr 
their own supposed preservation: and the folly 
of demagogues was always ready to afford a pre- 
text to the ruling party for their aspersions and 
rigoifr. The people, but particularly fhe lower or 
lowest ranks, were flattered with the hope of tempo- 
k'al •benefits from a change of system ; and some cle- 
rical writers boasted that they could procure a hun- 
dred thousand hands to their petitions ; that they 
were in reality the strength of the land ; and they 
dieclai^, even at the moment the Spanish armada 
threatened the kingdom, « Ihat it were no policy 
' to r^ect th^ir suk at such a time, when the land 
was invaded ♦." The consequence was, that the 
Episcopal clergy, and even some of the laity, to re- 
commend themselves to court favour, w^it to the 
'^opposite extreme, pretending principles of* passive 
obedience to the prince :^~And towards the rfose 
of this reign, Bancroft, afterwards primate, en- 

* Htf^el'B State TxlaU, Tid. i. p. I«d9. Their abiue <tf <lie U- 

shops outraged all decency, Strype's Life of Whit. p. 298. et seq. We 

have already shewn that these preachers anticipated for themselyes^ 

-«ot oily all the church livings hM by tlie hierux^y, &c l^t the 

*ph)pMy wirieh had been tureen from the reHgioua houses ; and that 

tliey meant to thituit the prelates, whom they denotmnated rogues 

«{I/ife <i Whltgift, p. «9«.) out of -every thing, while diey iJiennelTes 

resolved to pay no taxes, as being unlawful. 



4eavotired to ^iif^t the ysectarie^ on tliq^ own 
groiuidy by ^sse^ing the 4ivine institution qf hi« 
th<^* — doctrine till then u^h^ard ofy md cpnt^ary 
\o those laws whiph g^ve sijpremacy to the crpWfu 
Bat» though th^ higher olps^a mgi^t, in genear^^U 
))e slarm^dp i^kere were many who counten$^pi^Cje4 
the puritans i-^^-^^me out of devotion, not that they 
would have supported the projects imputed to that 
|>ody, but that th^y either disbelieved or despised 
thepi^-'-otherSy headed by the Earl of Leiqeiiter, 
out of a desire to subvert the hierarchy, that they 
might have .a freah pljimder of the church, not 
doubting l^r ability to govern and defraud the 
party Who assisted them in dissolving bishoprics 
ajQd deanries t/ 

• N^^ VQl«i* P-4S&4. 

t Life of Ho^]^, p. 9.. Xbe|oUowi|]^ ibakm ham fLXsMrhj 8k 
C. WivUfig^iaia 40 4i Wxmi^*^is9iiemm, is an ftooount of the priari* 
pies acted xip^aiioy^iUDds the puritans. 

'^ Fpr tbe ptbi^ party^ whi<^ have been offensive to the st8te> 
IhoQi^ in .aether degjcee, which named tfaemaelyes lefyanea, and 
we fiossmQl^ call fmritans^ ttos hath been the prooeeding tovaida 
them : . A jpceat wbile^ when they inyeighed againat sndbi abases in 
the «harch as pluralities^ non-residaauze and the like> their zeal Haa 
not Qimdemned^ only Uieir violence was sflfn^timft commred* When 
they recused the use of some ceremonies and lites^ as superstitioui^ 
Ihey wore tolerated with much conniyancy and gentleness: Yea^ 
wben ihey called in question the superiority of bishops, and pretend# 
fd toft democracy into the chivoh^ yet their propositions were here oon<k 
aideredj and by contrary wiitingB debated and discussed. Yet all 
Ihia while it was peroeiyed that their course was yery dangerous, and 
very popular: As, because papistry was odious, therefore it was ever 
in their mouths, that they sought to purge the ehureh from the le* 
iios of popery," a thing acoeptable to the people,.. who loye oyer to run 
from one extreme to another." 

: '^iBocauae multitude of r<^es and .poverty waa an eye-saKe,-asd« 
dislike to every man> therefore they put into the people's head, .ihat 



152 INTBODUCTldN. 

Upon the whole, this reign was liot favoiirahlcS 
to public liberty. Elizabeth was regarded as the 
bulwark of the protestant cause. Hot in England 
only, but throughout Christendom; — aitd as, 
though the last of her race, she could never be 
prevailed with to marry, nor to name a successor, 
the prospects of Protestants seemed bounded by 
her own existence, while the Catholics, consider- 
ing her the great bar to their ascendancy, were 
ever busied in plots against her lifJe. Those itta^ 



if discipline were planted^ there should be no vagabonds nor beggars ; 
a thing very plausible. And^ in like manner^ they promised the peo« 
pie many impossible wonders of their discipline. Besides, they open- 
ed to the people a way to government, by their consistory and pres- 
bytery ; a thing, though in consequence no less prejudicial to the 
liberties of private men than to the sovereignty of princes, yet, in first 
shew, very popular. Nevertheless, this, exoept it were in some few 
that entered into extreme contempt, was borne with, because they 
pretended in dutiful manner to make propositious, and to leave it to 
the providence of God, and the authority of the nfagistrate." 

" But now of late years, when there issued from them that affirm- 
ed the consent of the magistrate was not to be attended; when, 
under pretence of a confession, to avoid slander and imputations, they 
combined themselves by classes and subsaiptions ; when they de- 
scended into that vile and base means of defacing the government of 
the church by ridiculous pasqtuls; when they began to make many 
suligects in doubt to take oaths, which is one of the fundamental parts 
of justice in this land, and in all places ; when they began both to vaunt 
of ^leir strength, and number of their partizans* and followers, and 
to use comzninations, that their cause would prevail through uproar 
and violence, then it appeared to be no raxxe zeal, no more conscience, 
but mere faction, and division ; and, therefore, though the state were 
compelled to hold somewhat a harder hand to restrain them than be- 
fore, yet it was with as great moderation as the peace of the state or 
church would permit." Burnet, vol. iii. p^ 755, 75«. . The modera- 
tion ascribed to the government may be doubted : But the paper is 
invahiable, as throwing light upon the springs of action, and the 
feelings of the age. 



r 



INTRODUCTION. 16S 

m 

thinations begot a tender solicitude for so pre* 
clous an existence, ending in a popularity which 
was not to be shaken by minor blemishes in ad- 
ministration^ and daily kej^t alive amongst the 
ruling party, bri the ohe hand, by the terror of 
wild innovation, and the imputed designs of the 
sects to upset the rights of property; on the other, 
by the conspiracies of Papists, who,' iifter the 
northern rebellion, the* cruelties towards the re- 
formed on the Continent, who were assisted by the 
English court in their noble struggle for freedom, 
the massacre of Paris, the different plots in con- 
nection with the Scottish Queen, and the project- 
ed Spanish invasion, were regarded with still 
greater horror, as monsters not only of impie- 
ty, but of every immoral slnd cfuel propensity 
towards their" fellow-beings, — as if their creed 
had not been commbn to all the ancestors of 
their condemners, who were consequently involv*" 
ed in the same sentence. This great source of 
popularity, Elizabeth sedulously cUHivated^ and 
no monarch ever seemed better qualified to gain 
the affections of the multitude. She had, be- 
sides, a vast advantage in the general wisdcMfti 
of her council, wh<> tempered moderation with 
severity, and knew how far they might safely 
go in stretches of prerogative. Her policy too^ 
though not always justy was calculated for success. 
She, like her predecessors, interfered in elections 
to Parliaments j and she gratified leading men by 
gifts, some of them, it must be confessed, such as 
patents and monopolies, of a description no less 



ioequftafaie than peraickiud to tiie teet of the cqbki 
munitj. The middling and lower diasaes Ab 
ooociliated by a more rigid .diapensatioB of justkiy 
in quesbkms with the higher, than had previoinly 
been pmctiied ; and die both weakened such of 
tiie aristocracy as ^e dreaded, and obliged the 
lower dbsses, by spidering the smaller tensutts 
more independents 

Effom these sources sprung the great influoice of 
iSizabeth, and thence it was that she was permit- 
Ised, in some cases, to adopt measures not altoge* 
ther oonsistent with the liberty of the peqile, and 
e«^i on certain occasions to invade the privileges of 
parliament. Yet the grand prisiciples of the consti* 
tetion were preserved, however its spirit might oc* 
casionaily slumber .'*-^The greatest blot of her reign 
aix»e from the proceedings of the Court of High 
Commission ;>— *but even in these, there are circum« 
stances which distinctly prove that the watchfiil 
^iritof freedom, in regard to stretches of psero. 
gative, was «rtill aUve. The proceedings and pow* 
ers of this court will fall particularly under con- 
sideration in the next chapter ; and therefore we 
Asll content ourselves with remarking here, that 
the fifteen issued, and the clergy and others ac- 
edited of, commissions unauthorized by the statute 
which allowed the erection of the court : That 
tiie commissioners, acting upon such illegal pow- 
Ms, tendered the oath es qfficia to answer interro- 
gatories, to those who came before them in the 



• Seott'^'Somers' Tracts, toI. i. p. 167* 

5 



•dbttracter of ciBbnderft ; «nd that ^i^ ^«iited mu- 
tsatB to puzBiiivqnts to J!iaii6ack houses, aid fined 
-at»i impnsMed wten libiey had a right only to «- 
flict 'eoclefiiastical i^mwam. But it iU4fi3txates tiie 
^geom& <if the age, to rtate that the execfortive did 
moi y^txm to ^ejir^il those t^mmisstens in Chioi- 
<»ty, as ought to hove been d^ae^ lest tbi^ 
IbMfoliiess should be impugned upon such u fA* 
Uostioiij whid^i was at least ^m )i(xuage to pid^ic 
4)paiiiou ^ : that not ^oae Ane was evtr levied during 
-this rdi^ ; ^^acid <liat so o^n us indmduals t^>ok 
•€«t peohihitioQS and appealed to ^eourts cC law, 
they instantiy obtained rediess by a. strict inter* 
|M)etatMi of the statute which authorized tlmt 
court X3ie povrer to send pumitvants 't» faumdc 
licnises too, was tried in a memoraide ^v^ay >^A 
fiuisuivaat havi^ug, by x^tue of a warrani; from 
the commisBioners, dittempted to enter s, house^ 
vm$ killed by the landlord j and "Ae 'man was 
Ibrought before the legal 4a?ibunal on a change of 
«iiur4er« ^fV^en tlie ^^rqgative <was so much ^oon- 
43emed in the result, it is easy to conceive what 
interest would be tnade to obtain a jud^aieitt 
44^inst ^m ; bid; 4^ judges, holding th«lt liie 
'COiiittiisBioiiers had no ^ight to issue tte waxraiDfty 
conckuled thart: he was yu^^laSed in Isi&ing the pur- 
^vaiBft, and dismissed him from the bar. Wse 
ftrue >ca«Kie of so flmch severity having beeu prac- 



* As this subject is fully discussed in the next chapter^ under the 
liedd of the Courts High Commission^ I forbear from quoting au- 
thorities here, as altogether superfluous. 



156 JNTnoDucxjOjr^ 

.  ' « 

tised, wopld appear td have been the. ready sub- 
mfssidii of the prisonenu who puipooety did not 
appeal to the laW» from a desire to represent themr 
selves as sUfierersi for conscience sake, in order, to 
gain jpopular favour, while they recommend- 
-ed themselves to the Queen, by shewing, that 
though they could not comply with.her.comn;iands 
against those of their heavenly master, they would 
not dispute her power ; for, as has been already 
observed, many of them, while they denounced 
the English church as antichristian, bastardly, 
&c. did not decline to hold livings undir it,; con- 
ceiving themselves better entitled to. the wagto 
of preaching than ** the dumb-dogs,'' such they 
denominated the conforming clei^y^ (for this and 
other coarse appellations were early familiar,) 
whom, in the old language of the Papists against 
the Protestant teachers^ they, with, some truth,f re^ 
presented as grossly ignorant, as having been 
shoemakers, tailors, tinkers, millers, &c;; and 
some of them as having been actually bumecHn 
the hand for crimes. . Perjiiaps also not a few, 
who, in the face of the law^ had begun to set 
a-foot their church government by presbyteries, 
synods, &c. willingly submitted to the ceiisiu::es 
of the Court of High Gominission, lest, though they 
might stop proceedings there, they should be 
brought before another tribunal and undergo' a 
smarter punishment. 

During this reign, in spite of much impolicy, 
partly arising from the erroneous opinions of the 



iKTitoBUcnoy/ 157 

nge, society improved, ancl many circumstances, 
i¥bich shall be developed in their proper place, 
prepared the public mind for a more rigid at- 
tention to constitutional principles under the 
StuartSt 



ISi vrrtLOWicrmsfM 



•< *» 



CHAP. ir. 

CofUainififf a particular accourU of the various Institutions^ 
and Usages under the Tudors and their Predecessors, 
which either were prejudicial to freedom, or are suppos^ 
ed to have been so; together zvith an examination of 
Mr. Hume's Statements in his third Appendix, upon 
which he concludes thai the English government under 
EUzabeth, « bore some resemblance to thai of TurJceyT" 

The various institutions and usages under the 
Tudors and their predecessors, which were, at a 
subsequent period, abolished or discontinued, have 
been so little understood, or so generally miscon- 
ceived, that, without presenting a particular ac- 
count of them, and examining the statements of 
Mn Hume, which are remarkably plausible, and 
have made a deep impression on the public mind, 
we should in vain attempt to convey a correct 
idea of the views of parties during the stormy pe- 
riod we have selected as the subject of our work j 
and the discussion of such topics here, will save 
us from the necessity of interrupting the narrative 
with explanations* 

The Court of Star Chamber, as holding a con- 
spicuous rank amongst arbitrary institutions, de- 
mands our earliest attention* 

N 



Ante^r to tbd time of the Tudors^ there doe^coort 
not occuf, either in any puUication or record^bei; 
so mudi as the nvenrtion of loiy Couit called the 
Court of Stari-Chamber : And the advocates fix 
its antiqnity are obliged to admit, that the few 
instances refefrred to by them, in procKf of its saa^ 
tiquitj, passed tinder the Council, as it was then 
isalled, or, as we should now denominate it, the 
Privy Council. Indeed Lambard, the first great 
writer on this subject, states explicitly* that the 
Star-Chamber was no ordinary court, but the 
king's council, which, out of the inherent ri^^ 
and duty of the sovereign to award justice, inter* 
posed on great occasions, when the common law 
either afforded no remedy, or an inadequate one, of 
when one of the parties was too powerful for the 
usaai course of justice. Some of the other writem 
upon the subject, as Sir Edward Cdke and Hud^ 
son, appear to affect an obscurity on this poiJit^ 
as if ^e court of Star-Chamber were the council^ 
and yet something different from it; but theii 
disingenuousness does not heighten oUr opinion of 
the cause they espouse. 

It is the province of the Privy Council to in- 
quire into grand state offences ; but it would ap« 
pear, that, in turbulent and barbarous times, the 
same body who detected the guilt, sometime^ 
awarded the punishment ; and it nfiight not unfre*' 
quetitly happen, that the accused would prefer to 
purchase his peace by a pecuniary mulct, to un- 
dergoing the hazard of a trial. This, however, 
^n unsettled times, might afford the pretext for 



16Q INTBODUCTIOK^ 

imposing fines or inflicting other punishments; 
and it was one of the roain objects of the Great 
Charter to secure the national rights from such 
an invasion. 

The great charter provides that no man shall 
be taken or imprisoned, or deprived of his free-* 
hold, outlawed, or tried, except by the judgment 
of his peers or the law of the land. And Lam- 
bard admits, that the subject understood this, as 
for ever putting a period to the powers of the 
Council*: but he argues, that " these words 
ought to be understood of the restitution then 
made of the ordinary jurisdiction in common con- 
troversies, and not for restraint of the absolute 
authority ; serving only in a few rare and singular 
cases : And, therefore," continues he, " see what 
followed : some cases daily creeping out of suits, 
for which no law had been provided, and some 
misdemeanours also happening from time to time 
in the distribution of those laws that were already 
established, it came to pass that many, finding 
none other helps for the grief, were enforced to 
sue to the king's person itself for remedy ; and 
he again, knowing himself to be the chief justice 
and lieutenant of God within his own realms 
thought himself bound to deliver judgment and 
justice, whensoever it should be required at his 
hands. The which, forasmuch as he could not 
evenly and with uprightness perform, unless h^ 

* lAmbard's Arch. p. 126. 



INTBODUCtlON. 



I6l 



balled the adversary party ; neither had he> many 
times, especially in a new and sudden occurrent, 
any ordinary writ or process whereby to call him, 
of necessity he was to resort to the kingly and 
absolute power again, and by lus pursuivant or 
letters, to convent him, and then to proceed to 
the hearing and determining of the cause as to 
his princely office did appertain*.*' He gqes on 
to state, that this was so far from offending 
the subject for a long time, that an act was pass- 
ed in the 28th Edward I. c. 6. providing that 
the Chancellor and Justices of the King's Bench 
should follow the king wheresoever he went^-^ 
^< that he might have always at hand, men learned 
and able to advise him in such cases as he admit- 
ted to his hearing f hut that, « such are the weak- 
ness and imperfection of man, the time was not 
long, but the subject which so desirously fled to 
the king and his council for succour^ did as has- 
tily retire and run back to the ordinary seat and 
judge again." He then enumerates many statutes 
to put an end to the judicial powers of the coun« 
cUf; 

This mode of reasoning is undoubtedly not 
|>hilosophical. The object of the great charter 
was to protect the people against the power of the 
prince when he attempted to stretch the preroga- 
tive beyond the laws, and to prevent any mode of 
trial except by one's peers or the law of the land ; 
but, according to Lambard, this object was not 

 Lambard^ p. 127, H stq, t Id. p. 189, €t seq. 

VOL. I. H 



l62 INTRO DtJCTrOWr 

attaitaed, for in all emergencies, of \i4iich the king* 
was the sole judge, the sovereign n!uight» out of his 
absolute power, determine the matter. Whirt, then, 
was the security obtained by the 'great charter ? 
or what absurdity could be equal to ^bat of' devi- 
sing laws to controul the re^al power^ and yet al- 
lowing the kitig himself to be the sole judge of the 
'law? Whenever he wished to oppress, he'woiild, 
unquestionably, pronounce the case to bean extra- 
oi'dinary oHe, which demanded his petsonal inter- 
position,^ and from his judgment there could be no 
appeal. Had this been the staite of the laW, weU 
might Richard II. say, that the laws^ were soite- 
' times in his head^ sometimes in his moutli. It is 
utterly impossible that the great m^i who extort- 
ed the charter from the tyrant that so 'grossly vio- 
lated the }mblic rights, shoiild have nieant any 
thing so foolish, and this author himself states, tiiat 
the people understood the charter diflfereidiy ; 
whence the conclusion is, either that th^ Wdre 
outwitted, or, that the royal power was ineapiybile 
of limits. But Liimbard's allii^on to the statute 
28th Ed. I. betrays an ignorance of the ancient ju- 
risprudence of the Country truly astonishitlg j and 
yet he has been followed in it by Hudson *, the 
writer upon the star chamber so much b^j)raised 
by Lord Mansfield. Anciently the King's Bench 
was ambulatory, folidwing the king's perfi&ti in his 
progress through the kingdom. Under Edward I., 
himself, it actually sat at Roxburgh, upon his con- 

* Hud. in the Col. Jurid. p. 12. 



iNTBOWCtjpK* 163 

quest of Scptlwd. .The statute alluded to, there- 
fpreyh^d reference tp thh pr^ptice only; and othipr 
.writers of the, greatest authority, have so, under- 
istood it ** 

• * » _ 

To a writer .i)f $uch acuteness aa Sir. Edward 
^ Cjol^etj'vyho exprpsjy laysjdow^ that allpretence of 
.i>r^r^]|^dye ag;0inst niagna charta is taken away f, 
. and. mat the, king has committed and distributed 
lallhis, power of jvi4ip^ture to several courts of jus- 
tice t, the reasoning of Lambard musf have appear- 
ed extremely futile ; and he accordingly assumes 
^ £t different^ grpjimd7-r;that the ,alternatiye in the 
great gh^rter, of a ,triat by pne's peers, or the law 
,of . the land, >Ya?, intended to reserve the power of 
the council or court, of , Star Chamber, then an, ex- 
istingjind, legal court <)f justice, which administer- 
t ed the laws in a ^m^nrjer peculiar tq itself; and 
that none of the after, statutes applied to, that court 
\vhich is not pnce named in them §. This oracle 
. of rthe law, hpweveir, has not, m this instance^ exhi- 
. bited his usual correctness and research ; For the 
alternative referred^ as Dr. Henry has judiciously 



* Coke'9 4th Inftt. p* 72.. Blackst Com. vol. iii; p. 41.— By c. 4. 
<»f the S8th Edward I. it is provided, that *' no common plead shall 
be, from henceforth, holden in the Exchequer, contrary to the form 
of the great charter ;*' and then c. S, proceeds thus : '^ And on the 
other party, the king wills that the Chancellory and the Justices of 
his Bench, dhall ^llow him ; so that he may have, at all times, near 
unto him, some sages of the law, which be able duly io ordeir all 
such matters as shall come before the court, at all times, when need 
shaU require^" 

t Coke's 9d Inst. p. 3«. 

X Coke's 4th Inst p. 70, 71« 

§ Coke's 4th Inst, c i« 



164 INTRODUCTION. 

conjectured, to trials by ordeal, compurgators, &c* 
all then in use * j and is clearly established, by the 
most solemn statutes, to be utterly inconsistent 
with Coke*s idea. But his incorrecttiess ceases 
to surprise us, when we reflect, that he himself sat 
as a judge in the Star Chamber, where he lent the 
authority of his character for legal knowledge, to 
strain the power of that court to the utmost ; and 
that it was natural for him to support the proceed- 
ings of the judge in his writings f . 

As some trials which afected the life of the 
party might take place by ordeal, &c. so those 
which struck at the patrimony, liberty, &c. of the 
subject, were cognizable only by juries. The in- 
correctness of Coke is proved — 1st, By 3d Ed- 
' ward I. c. 6, which provides, that no city, bo- 
rough, nor town, nor any man, shall be amerced 
without reasonable cause, &c. and that by his or 
their peers : 2d]y, By magna charta, as confirmed 
by the same prince in the 25th of his reign, which 
provides, that no freeman shall be amerced except 
by the oath of twelve honest and lawful men of the 
vicinity, or if a peer by his peers ; and that no 
freeman shall be taken land imprisoned, except by 
a trial of his peers, or by the law of the land. The 

* Henry^ Vol. vi. p. 80. The idea^ however^ wafl not peculiar to 
• Coke or Hudflon^but had been announced publicly in the Star Cham- 
ber by Lord Keeper Egerton. See Hud. p. 4. 

t Sir Edward Coke and Lord Howard^ attended with the king's 
council Sir Francis Bacon and Sir Henry Yelverton, in the case of 
the £arl of Northumberland and Su: Stephen Proctor, published in 
open court, that the statute 3d Henry VI I. extended not any way 
to this court. Hud. p. 10. But Coke takes a diff^ent view in the 
Inst 



INTBODUCT^OK. 165 

various enactments to, define, the admirals, stew- 
ards^ constables, and marshals powers — which, as 
we shall afterwards see, were very limited— like- 
wise fully bespeak the rigid attention of opr ances- 
tors to national rights* 

Those positive enactments of. the legislature did 
not, in semi-barbarous and unsettled times, so com* 
pletely restrain the power of the council, as to pre- 
vent it from occasionally transgressing its bounda- 
ries, by arrogating judicial powers ; but the in- 
stances are rare *, and ^esh laws were immediate- 



^ Sfr Edward Coke aaju, " This oourty in ancient daiea^ sat but 
fy for three cauBes: First, For that enormous and exorbitant 
, causes which this court dealt withal only^ in those days rarely fell out. 
That is strange^ for^ if we look even to the statutes^ particularly 2d 
lUchaid II. c. 6j we shall disco^r ample proofs of disorders appa- 
rently inconsistent with the very bein|; of society. *. Secondly^ This 
court dealt not with such causes as other courts of ordinary ji:^ce 
might condignly punish^ ne dignitxU hi^'w curiae vUesceret'* Query^ 
What 18 condign punishment^ but what the law ordains ? and were 
not all offences punishable fit common la^ ? ' Thirdly^ It yery rarely 
did sit^ lest it should draw the king's privy council from matters of 
state^ pro hoM jmblico, to hear private causes, and the principal judges 
from ibeik' ordinary covrU ofjiuHceJ 4th Inst. c. v. p. Ql. This last 
is a most ex^traordinary r^^n, since statute was passed after statute, 
to prevent the illegal interference of the council with ordinary justice, 
and since, in the stoie chapter, we are.toM diat, in the author's time, 
it sat im Wednesdays and Fridays regularly, during term time. Men 
in ancient times must have been differently constituted from what 
they were in this author's days, or are now, if they neglected to avail 
themselves of an arbitrary institution. But tlie repeated complaints 
of, and statutes against, the council, prove that human nature has un- 
dergone no change; though, were my Lord Coke's view correct, there 
would be this inconceivable anomaly, that the council, while it was 
above taking advantage of its l^;al rights, exercised its power in \ 
different way — a way that did not promote its authority, while it pro- 
voked animadversions : For it could have done all in the one way that 
it could desire in the other. 



165 rKTRobtrGTioK. 

ly devisfed t6 arrest sneh an eiicroachment'upifti'^ 
piiblic rights: The fact is, thit the' Wneflt'oF the'^ 
laws was enjbyed by a sitidll pdrtioti only' of tHef' 
people; 'that the great' aristocracy so ovferatwed" 
and threatened, or suborned judges and juries/ as 
to be above ordinary jurisdiction ; thai, byeyc^ 
act of violence, &c., they left no alternative tb the^ 
oppressed but to fly for succour to'tHe thfoire; 
and that the king, aftxioUs to advaiidfe the'prerb*' 
gative, as well as to jireserve tHfer public peafiie; 
took advantage of disordeA to call the violkibrs' 
of the laws before him in council. This, by 
aftectihg the great men themselves, induced th^m 
instantly to repress it j and the zeal, pF the Low- 
er House on tiiat head may probably, with some 
truth, be partly ascribed to its- aristoferatici con- 
stitution : For, th.oiigh the great body of the 
people were sufficiently poor and unprotected, it 
does not follow that thd great gentry; who were' 
returned to Parliament, -^ere riot in a very diflfererit 
condition.— In the ^th Edward HI. " it was enact- 
ed, that no man from- thenceforth should be at- 
tached by any apcusatloh, nor forejuidged of life 
or limb, nor his lands, tenement, goods, nor chat* 
tels, seized into the king's hands, against the fthri 
of tjie great charter and law of the land.** In the 
15th, a complaint was again made in Parliament 
against this violation of the great charter j and, in 
the ^5th, the following law was passed : Stat. 5, 
0; 4. ^ Whereas it is contained in the great char-' 
tier of the firabchises of England, that none shall' 



int;|io5ugtion. . 1)B|7 P 

b^mfRWmdiJ¥}?:WPP^^ of^ his fr^ebpld, 'i\or pf ^ 
hM.frft5jQH^f.^«r.frS!? Cttstom, unless it be hy t^e* 
HwRf^tfefclf^jd^it i&.apcprded, assented and qsjab-,, 
lisjie^f that fro(n henceforth none., shall be taken 
l^;.P^fift9» OT.siiggjBst^oa made to our lord the^ 
l^Pg.. qf » tp % co^fi^ il, unless it) be by indictment, , 
of.ipr^senjtipe^rt ofjgood^d Uw^ of the. 

nam^. neigjjbippr^opdi wh^e such deed^ be done, ia, 

^ ~ •»-..4ji «... . '..,1. ..> 

i^S mapB^r,. pr by process ms^ by writ original* 
at,t/^fi cpnpnjonjia^ J nor that npne be put out of. 
hi)^ fr^Rflhises, nor of ^his freeholds^ 3^^^?^ he l)e^ 
i^l{f; ^oiig^t; into answer, and, fp^ejudged of tJxe,. 
BMje^ I)^ thp cQurse of law; and if any thing h^- 
^m^, $(^npt. the same, it shall be holcl^n fpr^ 
^09e/' ' 3.1itirthe evil co|[Ltinuedy and, by the ^^tb^. 
cSihs ^Vf^P r?iS£b t^^ gr^at charter was confirmed^^ 
nx^ i% WW p.ar);«cul^rly proyided^ c. ^ *^ that na 
m^h ol* wl)^t; Qpt^te. or condition that he be^ ^]^^ 
bi9 pvX: put oJC k^nd or tenement, nor ' 1^]f en, nox; 
ijQpyr^son^i^, 9pr dii^inherited, nor put; to dead^ 
witife^oijt \^km trought in ajas^yer ^ly ^^e process ,9^ 
th^ Jm/* T|[i^e ?*?gepstions had, b?en. sl;i4 conti^ 
wue^, 9«d therefojfe, by 87, c, Ig. ;pt t^e san^ej 
king, % fQljlpy?«ig Rrftvi^ipn w^ mad^; .^'Thpugl^ 
%hj3Lt it be coat2tine4 in %\^e great charter,, that nq 
man b^ tak^t^ noi^ jippid^ned, nor puit out of hi^ 
freeholds withput process, of the iaw j ne.yertheless 
4iv^rs pimple n)ake false suggiestions to. the king 
hims^ as well fpr mft]ice as otherwise, whereof 
the king is. oft^n grieyed, s^nd diyers of the reaJm 
put in gre^t dapg^r 9^4 IPs^.against the fprni of thi^ 



168 INTRODUCTIOK. 

name charter; wherefore it is ordained, that all they 
that make such suggestions, shall be sent with the 
same suggestions before the chancellor, treasurer^ 
and his grand council, and that they there find se- 
curity to pursue their suggestions, and incur the 
same pains that the other should have had if he were 
attainted, in case that his suggestions be found evil; 
and that then process of the law be made against 
them without being taken and imprisoned, against 
the form of the said charter and other statutes*'^ 
The 38th of the same king, c. 9, so far alters thit 
as to substitute damages to the aggrieved, and a 
fine to government for the lea: talionis. But the 
statute 42d, c. 3. of the same reign, is stiU more 
precise : ** At the request of the commons by their 
petitions put forth in this parliament, to eschew 
the miscliiefs and damages done to diverse of his 
commons by false accusers, which oftentimes have 
made their accusations more for revenge and sin* 
gular benefit, than for the proiSt of the king or of 
his people, which accused persons, some have been 
taken and sometimes caused to come before the kmg^s 
council by writ, and otherwise, upon grievous pain 
against the law : It is assented and accorded, for the 
good governance of the commons, that no man be 
put to answer without presentment before the jus- 
tices, or matter of record, or by due process and 
writ original, according to the old law of the land ; 
and if any thing henceforth be done to the contrary, 
it sh9.ll be void in law, and holden for error/' In 
spite of these laws, the evil recurred; and, therefore^ 



in Hie 1st of Richafd II. it was p]:ovided, tbat nq suit 
should be ended before any lords, or others of the 
council, but before the justices only. In the 2d of . 
that reign, however, upon another petition from the 
commons in parliament against the councU, it was 
answered fiXMn the throne, that the king thought 
it improper that he should be restrained to send for 
his lieges upon a reasonable cause^ though he did . 
not mean that they should atiswer finally about their 
fxeehold, but should be remanded for trial as the law 
required ; " provided always that, at the suit of the 
parties, where the king and his council shall be ere- 
^bly informed^ that because ^of maintenances, op* , 
pressioos, or other outrages <^' any persons in the 
country, the common law cannot have her course ; 
in such case the council may send for the party 
upon whom the complaint is made, to make his 
answer for his contempt ; and furthermore, by . 
their good discretion to compel him to find sure- 
ties by oath, or in other manner for his good be- 
haviour, and that he shall not by himself, or by 
any other, commit maintenance, or other thing 
whidi may disturb the course of the common 
Taw •/* This afibrds a melancholy picture of the 
times ; but it clearly evinces that all parties were 
agreed that the interposition of the council was ir- 
regular, and only justified by the principle of ne- 
cessity ; since, had it been an ordinary court of 
justice, such language could never have been used. 



* Lambard, p. 147. et seq. See also Cott. Abridg. of the RecgrdB; 
kttt it is not 80 fully stated there, vol. i. p. 178. 



An erastve answer w^s^ in* the lS4br retonwd by> 
Richard, to a petition oi' the^ oomaioaB;^ ta. tbe^. 
same purpose ; but inth&i&h^ thejr-oaxiaiditiieir . 
point ; for it was then ^msLdted^tttit' ao-man^^dbouldi^ 
be forced to appear before any Lards, ofithe couiw ^ 
ciF. Yet, such were the turb^ence and^ barbarism, 
of the times, that in the 44:fa<rf'itheneiit rmg/a^ the* 
commons were obliged) to petiti(m^again§ta0i^ipiK^:' 
qfjnivyseal^ ^c. by wbicb thesubjeci^Wa&sammoiu. 
ed before the council, aod-the^ referred to the sta« 
tutes of Edward lUi, &c* Henrs^^msw^riftd that be 
woutd charge his cheers to abstain more than- for- 
merly from sending for hi& sublets in this^mannj^r)- 
but that it was, nevertheless, not his intentkm to^^ 
prevent his officers from sending for bis-subj^cts in: 
matters and causes necessary, according^ to the 
practice of his predecessors. His son likewise asr 
serted the same power*. But, though such a; prac- 



* liambard, p. 149> et seq. Cotton's Abrid. of Records^ p. 348, 
Tikere was first printed m Hawkins' edition oiP tihe Statutes, what is 
diyniininatqd) a statnte by BM^apA H. in, th^ 13^ of- hia r^gn, ^ 
piliiUed 48,8Hch, in th^ lat^ ed,l.tion of tl^e statutes of the realm, JfV^^ 
lished \^j comman.d of C^eo^ III. in pursuance^ of an address of die 
House of Common^ (yoL ii. p. 74.) whereby raaintenaace is pro]ii# 
biled ^ uppn pain o£ inxpns^nn^pjt, Sne^ and r^s(^ oi* of be^ig 
punished in ojtber mannear, accoirding i^s shall be.sdyis^ by us and 
our council." This« however^ is no statute^ but merely a writ ad- 
dressed to the sheriff of Kent by the king i^nd his coundl^ and it is 
said that " Vke writs a:re directed to tl^ c^y^ml sheplb tl^c^ughout* 
England." It o\ight not therefore to have b^^^ printed amongst the 
statutes ; and in fact only proves the disorderly state of society^ and 
the existence of the irr^ularity practised by the coundl^ of which 
the Commons complained t}ns very year^ and which they got redress- 
ed in the 16th of diat reign^ or three years afterwards. 



m^ii^'smi^m^^fot^ 61* gfeat^ffl* cryiflg mer. 
gdifbieW* it' doeS n<dt^ MtowtbM the couDoit posi: , 
sk^St^jMiiniipdwtt^i^ Buxd' these t&ipon&BSishtm''. 
lipbh if\kt ptittoifie the- intowai*fch :aicted,o while it i 
ofaght ndtia be £6rgm^ th«r Ri^haf^ It; waB <tee 
iiit6titAG)t tyrannyV aiid tbat both < Henry IV, and' 
fai^%hc!cess6r, tiavihg beeti s^ateul on the tUronecon^ 
trary tb the uiiiUal coutl^e of suoesesision; a«idtb^ing: 
exposea' on tHkt' afccOutot> pflfttfciriarif Henry IV4. 
to ihsnirfre^idti^^ for ttlef re^stabiishment of the ]u* 
mA desdehdiiiit of tW ctovm^ihnndiixiecytsmxy' 
td resrfrt to llli& coWrsef for thefir^otm seoai^y; 

Biit-it is aUegfedi that the judkikli poweii dff the 
c6iHiciIare prbved' by statutes^ whioh authorise itm 
ihterpositiWi' in cettlain eaSei^. Thttd^by tbe'lSth) 
BSchard' Hv d 1 IV smt^skihtvh nmgnattmij wbicb had^ 
bee^i^^ d6hipldiil<!fd[^ of, Md ws^ addoipdibg to statiite? 
dd Edward L aild ^ Richlird II. Cdgniftiibld by* 
the eothmoik counts of justibe, k mader pcmiiihable^ 
by this coiHieil, ndt'MlkstanSng tHose statutes^ \94itck^ 
dee speda^% referred ta Th^s^ by 191^ H^niy 
IV. c. 7> i* was ordained, thalt, in the evem of amy 
iiot, assembly, ^ rbut of the fte^le ajgaiiidC th^ 
law, the justices of the peaio^, thriee or tmf of theffi 
at the least, arni the sheriff, or tind<dif-she#iff of the 
coutity where it occiTrred, shoiild arrest the ofieikii^ 
ers, and have power td reecfTd what they found donei 
in their presence against the la V ^ which record 
i^ould be the ground of conviction^ in the sttme 
mstnner and form ak is contained in the statute of 
fdircible entries ; but that, in the eveni^ of the cS- 
fenders having departed before the arrival of the 



17* INTaODUCTIOK* 

sheriffs and justices, these magistrates should dfli* 
gently inquire within a month after the riot, &c» 
and should hear and determine according to the 
law of the land ; << and if the truth could not be 
found in the manner as is afor^said| then, within a , 
month next following, the justices^ three or twp of 
them, and the sheriff or under sheriff should cer- 
tify before the king and his council all the deed 
and circumstance thereof, which certificate should 
be of like force as the presentment of twelve : . 
upon which certificate the said trespassers or o£* 
fenders should be put to answer ; and th^y which 
should be found guilty, should be punished ac- 
cording to the discretion of the king and his coun- 
cil : and if such trespassers or offenders did traverse 
the matter so certified, the same certificate and tra^ 
wrse should be sent into the king^s bench, there to be 
tried and determined as the law required^* The 
81. Henry VL c. 2. which is particularly referred 
to by Sir Edward Coke, sets forth, that the king, 
** upon certain suggestions and complaints made, as 
well to him as to the lords of his council, upon di- 
vers persons, of great riots, extortions, oppression!^ 
and grievous offences against the peace and laws» 
had given command as well by writs under his great 
seal, as by his letters of privy seal to appear before 
him in his chancery, or before him and his council, 
at certain days, in the same writs and letters contain- 
ed, to answer tothe premises; which commandments 
were, and many times had been, disobeyed in con- 
tempt of th^ king, and hinderance, damage, &c. of 
his said complainants :" power is therefore given 



INTRODUCTION. I7S 

to the chancellor to issue proclamations against 
those who refuse to appear before the council, and 
certain punishments are ordained, ^^ provided that 
no matter determmabk hy the Imo of this realm^ 
shall be, by the same act determined in other form^ 
than afier the course of the same law in the hinges 
courts having determination of the same km.^ But 
the statute is limited to seven years* endurance. 
The reader may perhaps hesitate in admitting the 
assumption, upon these statutes, by the advocates 
for the antiquity of the Court of Star-Chamber. 
As to the first, the very circumstance of its being 
particularly mentioned that the power of punish- 
ing scandalum magnatum was given to the council, 
notwithstanding the previous statutes on the sub- 
ject, implies that this was an unusual course ; and 
what is quite decisive is, that by the 17th of the 
same king, c. 6* the power of punishing this of- 
fence is committed to the chancellor. Now, upon 
the same principle that an inference is drawn from 
the one, in favour of the ordinary judicial authori- 
ty of the council, a similar deduction must be made 
from the other, for the ordinary criminal jurisdic- 
tion of the court of chancery : But, surely, no one 
vrill be hardy enough to contend for that. With 
regard to the statute 18th Henry IV. c. 7» the very 
fact of the accused having it in his power to tra- 
verse and carry the case before the King's Bench, 
<< there to be tried and determined as the law re- 
quired,** fully imports, that the jurisdiction thus 
given to the council— a jurisdiction which it was 
left to the option of the accused to decline, was 



. 174 . INTEQPUCTI0K. 

awhile , it. affords a4ditiwrf evidence, against the 
\i«w tak^n byiJUwrtwfd, al?9«t the par^^npunt 
3tight of ih^ cvQWn to^ wterfiQW jijta .inherent judi- 
cial , authority when, the oqct^aton seemed to de-^ 
,TOand it. rThe,\8^»e «wicUii»en.^^nsfes;fr,omv the 
Tteinporarj apd,gtiar4ed^ nature -of the act-<31«t 
JHenry VI. ,c< 2. It/iSiindeisdr^jkated in the pre-^ 
^amble; that men h$d been guilty. of {sontemptjn 
; disregarding writs for ^eir attendance .. in chan-' 
.i5eryvor;iii the .opiincil ) but it is evident^ from the 
-acF|apulou4 Hautatian^ of the 9tatute> that^ however 
. imrliament might blftipe^rosistaiice.. of usurped au* 
thority for the p^t, they were resolved to secure 
. themsfelve3 against it for the future ;. and were any 
inference dejd^qibl{Q from the: preamble, in .favour 
-cjf th^ oirdipary jurii^diction of the council, the 9ame 
. c^flvdjusion: cq4|ld not bedenied/orthe ordinary cri-^ 
nminal jurisdiction of the. chancellor,, before whoWi 
I ifeis,«^di.the'aeC;U$ed had been also, sumipooed^ 
. and whose nafne, indeed, is. first inentiqned.— -In 
considering , an act : of. this kind, we must : always 
. attend to th^ peculiar situation of public affairs; at 
itstiate. The kingdom was .then rent with fac- 
tion; and the laws had^.uxider ah iinbecile. mo* 
narch, an ambitious consort, and wicked favourites, 
lost their vigour ;: Jack Cade's rebellion had just 
been suppressed ; and Richard, Duke of York, bad 
already appeared in arms ; and, though he. had as yet 
submitted^ it was only to muster . greater strength 
to support, his pretensions. Under such circum- 
stances, the legislature might not feel averse to arm 



INTBOBUGTiaN. ^ 175 

i;he eirecutive with umisual power^ and' to DOAficm 
' its authority by a general censure of ihe contempt 
with which some of its proceedingis had been treat- 
ed; while, it is not unlikely that parliament its^lf^ 
convulsed with the party > spirit and sinister views 
that generally precede a civil wieu-, proposed the 
advanceAetit of their own objects in a^lft^ tteit 
gave poWer to 'such as ^should be placed ^at- the 
' helm of af&irs during the ^^pt)roa€iiiilg opntest 

The reasonsing of Sir £dward G)ke, iwpoA the 
Aatutes formerly-quoted gainst the cjotft^cili is no- 
table, that "neither tiiey nor any pl^er -ttJieth 
away the jurisdiction of any settled •oourt-of< jus- 
tice, neither is the Court-of Star Chamber named 
in any of them, and yet was it a oourt then^ and-be- 
fore that timeV This seems to ipiport, 4bat^^e 
venerable author conceived that the cbuncil vfas 
something different from the Court of Star- Cham* 
ber, and yet there is not the most distiuit aUnsioii 
to such a court in any statute whatever^^«aatel?ior 
to the time of the Tudorsj and he himself rdSsrs 
to the statutes just^qaoted; in proof of its ettstence, 
while the council on]y is Darned in theim/ In oittng 
his cases, too, he Inentions that the record bears^ 
that they were either corwn rege et C0nciUQ, or 
coram rege ei concilia in damera steUata ; nsyt in re- 
gard to the Chamber^ be states, that originally 1^e 
word camera only was 'used, and that the tmcide- 
signatioh of the Star 'Chamber is coram regei et 
concilia^ as that of the King^s Bench is coram rege^ 

* 4 Inst p. 63. 



176 introduction; 

and of Chancery, coram domino rege in CanceUd* 
via *• — ^The Star Chamber was not only the nsual 
place of meeting for the Council in its delibera- 
tions upon public affiurs, but for the Lords when 
summoned to advise the king on any extraordinary 
emergency, and for Committees of Parliament t* 
Had there been any court of law held in that 
chamber, the stile, to correspond with that of the 
others, would have been coram rege in camera steU 
lata, instead of coram rege et concilio : as obscurity 
was studied when it did become a court, in order 
to draw a veil over its usurpations, a proper title 
was never given. 

The author, whose cases in support of the anti- 
quity of the Court of Star Chamber, are most nu- 
merous, and are entitled to the greatest respect, 
is Sir Edward Coke ; but though his list, from its 
size, as well as from the weight of his legal cha- 
racter, appears formidable at a distance, its im- 
portance vanishes on a nearer inspection, and we 
may remark that, on this point, his work is desti- 
tute alike of the liberal spirit and the correct good 
sense which distinguish it in other respects : but 
the inconsistency arose from his having sat in that 
arbitrary court as a judge. That cases did occur 
before the council is . demonstrable from the va- 
rious statutes which were, from time to time, de- 
vised to put a stop to such an encroachment upon 
the privileges of the people ; but it would be strange 

* See 4 Inst. c. S. 

t Lambard^ p. 175. Prynne's Animadyer. upon the fourth Inst. 
The EpUog. 



INTRODUCTION. 177 

indeed to argue from thence, in the face of repeat- 
ed acts of the legislature, which stigmatize such 
proceedings as an infringement upon public rights, 
— ^that the Council was a legal tribunal ; — while it 
is evident from the two last statutes quoted above, 
that a certain species of jurisdiction on particular 
occasions, was given, by the first of the two, to the 
Council, and likewise a temporary and limited 
power by the last. Its interposition on particular 
occasions, therefore, under these acts, was lawful ; 
and the wonder, consequently is, that there should 
have been any difficulty in discovering instances 
of its usurped, limited, or temporary power, while 
it must create astonishment to learn, that out of 
fifteen cases quoted by the oracle of English law*,( 
nine are misrepresented, or quite inapplicable to 
the question. Of the two first cases quoted by 
him, Prynne could not discover a trace in the re- 
cords referred tot. The third, he, Piynne, found 
had been decided in Chancery t— the proper court 
for the cognizance of the question. The fourth 
was a case in Parliament, which, at that time, fre- 
quently took cognizance of private causes §. The 
fifth appears al^o to have been agitated before Par- 
liament. The eighth, which the venerable author 
quotes as the most irrefragable — ^announcing that 
Lord Dier had reported it under his own hand in 



.^ * See 4ih Inst. c. 5. t Prynne'B Animad. £pD. p. 417^ 

i Id. p. 418. 

§ Id. p. 417. He refers to Ryley's Plac. Par. to prove that private 
causes were often sttbmitted to Parliament; and the same is ohvious 
from the Stat. 46 £dw. III. to exclude lawyers on that account. 

VOL. I X 



178 INTEODUOnON* 

the first of Elizabeth, wh«i he thought it necessary 
to vindicate by authority the legality of the courts 
Frynne proves, by the production of the record, 
not to have had the most distant relation to the Star 
Chamber, and to be in all respects misrepresented*. 
The ninth appears from Lambard to be also not in 
point. It regards the Duke of York, in the S5 Henry 
VL who;according toLambard, had been cited upcm 
the statute 51 Henry YL about riots ; but the writ 
was annulled^ because, though it was issued on that 
statute, it contained nothing about riots t. The 
eleventh case was decided in Parliament t. The 
twelfth, as it is reported to have occurred on the 
21st November, in the Sfd of HearyYL might, 
and if it really were a case of jurisdiction, in ail {m:o» 
bability, must, have taken place under die tem^ 
porary statute which was quoted above, about 
riots, &G., which had only been passed in the pre- 
ceding year. But there is reason to believe that 
the case has. been altogether misU&en. Lord Coke 
gives it in these words : ** An wder in the Star 
" Chamber for the Duke of York's counsel to have 
*^ access to him, because called into the Chamber 
*• by privy seal.** Now, it will be recollected that 
the Dtrke of York had already been in arms, but 
that having submitted for a season, he had re- 
tired to his country seat, where he continued 
till the birth of Prince Edward, which seemed 
ta blast the Duke's hopes of quietly succeeding 

* I^nne's Animad. on iih Init. p. 419. 
. t 8ee Latnbard^ p. 180. 
:|: Prynne, p. 419. ^ 



WTA09U€TIQN^ 1 79 

to the throne, taught him the necessity of exer- 
tioi^ and the imtnediate illness of Henry, with 
the general odium of the government, which 
vented itself in slandering the Queen with her fa* 
vourite Somerset, by pointing out this as the pros- 
per time, at once roused the Duke and his adbe*- 
her«3ts into activity ; and that he was instantly 
admitted into the council, where, having become 
supreme, he was soon made protector of the realm, 
while Somerset wa% on various charges, sent to the 
Tower*. The Prince was bom on the ISth of 
October ; and there is extant a commission under 
the great seal, dated the 14th of February follow^ 
ingf by which the Duke was empowered to hold a 
parliament t. The order in the Star Chamber^ 
however, is dated on the 21 st November t, and it 
is utterly inconceivable upon what ground the 
individual who was in February supreme, was calU 
ed before the Star Chamber, Sir Edward saya 
into n, which points ^ the truth, as a criminal at 
80 late a period. Even, after he had been in arms^ 
the Privy Council, instead of venturing to examine 
him relative to his rebellion, had advised the king 
to summon a great council of the Peers to bear 
his and Somerset's mutual accusations^* We are 



t All ^vtbanties i^ee as to the di^te of Prince Edward's birth; 
and the oominifision to ihe Duke of York is extant in Rym. Feed* 
'VoL xL p. 944. 

i Lambaid^ p. 170* distinctly states this^ th0ii£^ C6k& does n^t 
i;ive the month. 

11 JjamVard says^ before the Councilf p. 179. 

f HaUe^ f' 31* HqUji. f* $39. Henry^ tqI. ifi. p. 145. 



180 iMtBODOctioir^ 

told by historians, that he lived in retirement frofd 
that time, till he forced himself into the council^ 
and, if he had been molested, some account of this 
event, at such a crisis, must have been handed 
down to us : but, if he had been cited as a criminal 
on the last occasion, why should he have needed 
to apply for liberty to his counsel to have access 
to him ? He could not be in confinement on any 
charge cognizable by the Council, unless he were 
attached of high treason, and merely examined by 
it } and were that the case, it would afford no 
colour for presuming that it arrogated judicial 
powers, since such an examination would fall with- 
in its province at this day. The fact would ap- 
pear to be, that the Duke had been called into the 
Council as a member, and as the leading one too j 
but that, being a very prudent, moderate, and 
cautious man, he chose eithei: to be, or to have 
the appearance of being, directed by legal advice 
in his present very critical situation — particularly 
in regard to the impeachment of Somerset — weU 
knowing that, on any reverse of fortune, every cir- 
cumstance would be taken advantage of as a pre- 
text for his destruction. 

Thus are i^wept off at once, nine out of Lord 
Coke's fifteen cases; and we may observe that 
some of these had been cited by Lambard, 
while Hudson^ who talks of the records with pe« 
culiar confidence *» though from his mi^take^ 

"* He says it is '^ a doatmg which no man who had looked upoft 
the records would have lighted upon"— to impute the origin of the 
Court to the statute 3 Henry VIIl-^VFhy ? « it being solemnly ad« 



INTHOBUCTION. 181 

■w 

and his not referring to any rolls, it may be. doubt-, 
ed whether he had ever consulted them, quotes 
the same cases with all the errors of the other au- 
thors*. The same writer tells us, that Henry VIL 
anterior to the stat. 3. of his reign, which, as we 
fihall see, afforded a pretext for the institution, 
frequently presided in person in the 'Star Cham- 
ber ; but this does not tend to advance our opi^ 
nion of its being a legal court, since it has been 
held by the earliest writers, that the king has com- 
mitted and distributed his whole power of judica- 
ture to several courts of justice t ; and we are 
quickly relieved of any difficulty that might* arise 
from Hudson's statement, by being apprized of the 
nature of the questions which were agitated before 
that monarch, — "as of the intercourse of Burgundy, 



judged by the Chief Judges of England^ Sir E. Coke^ and the Loud 
Howard^ in the cause betwixt the Earl of Northumberland and Sir 
Stephen Proctor^ and published in open courts that the statute 3 Henry 
VII. extended not any way to this Court." — ^This is logic ; but Sir 
£• Coke was not himself convinced by it ; for he tells us that the 
statute confirmed the jurisdiction of the Court.— 4 Inst. c. 5. The 
judgment founded on by Hudson^ did not even satisfy the king's 
council ; for there is in Rymer a Note of all causes cognizable by the 
Star Chamber^ as drawn up in the 1st of Charles I. by authority^ in 
which its jurisdiction appears to be ascribed to the statute. Rym. 
Feed. V. 18. p. 192. *^ 

* See Hud. p. 12. et seq. for a proof of bis having just quoted the 
Mses referred to by others^ &c. 

f 4 Inst. p. 70* The authcM* proves this from Braeton and Britton^ 
and yet Hudson as well as Lambard^ quotes these authors to shew that 
the king had reserved the dispensation of justice to himself, not 
marking the difference between the theory of the sovereign being the 
fountain of justice^ and th^ way in which his judicial powers are ex<* 



i&2 INTBOBUCttON. 

the marriage of Prince Arthur, and the Kkc ♦,'' 
—all matter fit only for the cognizance of the 
Privy Council and not of any court of law; and 
yet this author, with the same perversity, else- 
where, again quotes these and similar cases, in 
proof of the jurisdiction of such a court t. It is 
indeed said, in general terms, that many cases about 
the titles of land were likewise determined there; 
but no instances are given, and even the advocates 
for the court admit that such qhestions could not 
legally be decided before that tribunal. It is not im- 
probable however, that cases regarding the titles of 
land were frequently discussed before that monarch, 
though the fact will not warrant any inference in 
regard to the Court of Star Chamber. His fol- 
lowers, who had been previously ejected from their 
possessions, reclaimed them, and forfeitures against 
the opposite facticm were now numerous in turn. 
It is scarcely to be doubted, therefore, that the 
council would be filled with petitioners, 'whether 
sufferers under the new dynasty, or claimants of 
old rights and suitors for new grants. But Henry 
had too much good sense to affect the exercise of 
the judicial powers in bis own person : and, even 
with regard to this arbitrary court, though Hud- 
son tells us, that when the sovereign was present, 
the Council merely delivered their (pinions, re« 
serving the right of judgment to their master,— 
there is no instance of such a thing, except that 
of James I» whose pedantic preteoaoK led l^m 

* Hud. p. 16. 

t Hud. p. 52. See also HarL Man. Brit Mns. No. 73C 



INTSODUCTION* 183 

to such an absurd proceeding in the case of the 
Countess of Exeter against Sir Thomas Lake *• 

We shall conclude this branch of the sub* 
J€Ct, with remarking, that nothing more effec*^ 
tnally shews the badness of the cause than the 
extraordinary keenness of its advocates, and the 
lameness and absurdity of the evidence adduc- 
ed by them ; and that, had such a court exist- 
ed. Sir John FcHtescue, in his excellent works, 
could not have failed to allude to it, especially 
as he particularly ibentions the conviction by at- 
taint, of corrupt jurors, for whose correction the 
court was afterwards alleged to be most neces- 
sary. As an excuse for the paucity of their cases, 
on this subject, writers state, that the court sat 
very rarely. Were this correct, ia higher compli- 
ment could not be paid to the moderation of the 
different monarchs; but the statutes prove that 
they illegally used the council ; and it is ineKplicable 
upon such an assumption, how they should have 
obstinately employed it in one shape, when they 
could have lawfully accomplished their object in 
another, which they yet neglected. 

We shall now consider the statute 3 Henry VIL 
ۥ1. It proceeds upon the preamble, that <^ the 



* Hudson^ p* S tnd 9. This author mjs, that his '^ most exoeUent 
maiegty, wiUi mc/te than Solomon's wisdom^ heard the cause for fire 
dajB^ and pronounoed a sentence more accurately eloquent^ judi« 
cionsly grave, and honourably just, to the satisfiiction of all hearers, 
and of all the lovers of justice, than all the recordsextant in this king- 
dom can dedttne to have been, at uiy former time, done by any of his 
royal pirogeiutors." P. 9 



184 INTBODITCTIOK. 

king, &c. remembereth how, by unlawful main, 
tenances, giving of liveries, signs and tokens, and 
retainders by indentures, promises, oaths, writings, 
or otherwise embraceries of his subjects, untrue de- 
meanings of sheriffs in making of panels, and other 
untrue returns, by taking of money by juries, by 
great riots and unlawful assemblies, the policy and 
good rule of this realm is almost subdued, &c/' 
. It is therefore <* ordained, that the chancellor, and 
treasurer, and the keeper of the privy seal, or two 
of them, calling to them a bishop and a temporal 
lord of the privy council^ and the Chief Justices 
of the King's Bench and Common Pleas, or other 
two Justices in their absence, &c. should have au. 
thority to call before them by writ or by privy 
seal, the said misdoers, and them and others by 
their discretion, to whom the truth may be known, 
to examine, and such as they find therein defective^ 
to punish them after their demerits, after the form 
and effect of statutes thereof made j in tike manner and 
form as they should and ought to be punished if they 
*were thereof convict after due order of law** No un-; 
prejudiced mind can attend to this statute without- 
being satisfied that it erected a new court. It 
does not allude to any previous one ; it does not 
embrace the council ; and yet it is alleged by Sir 
Edward Coke, that it was declaratory of proceed- 
ings in the ancient court, that is, the council, and 
confirmed its jurisdiction. All the offences enu- 
merated were punishable by previous statutes; and 
the ordinary course of justice only, was now de- 
parted from. If the council had previously pos- 
sessed such powers, there would have been no oc- 



INTRODUCTION. 185 

cadon for the act; anjd, at all events, the ancient 
court must have been alluded to as an existing 
tribunal. Instead, however, of that, the privy 
council is mentioned without an insinuation of 
such an inherent power. But the iixconsistencies 
comnoitted on this subject are extraordinary : Sir 
Edward Coke, with two other judges, had decided 
that this statute did not refer to the Star Chamber 
at all, which was independent of it, any morie than 
it did to the other ordinary courts, yet he takes a 
different view in his writings*, while Hudson, 
who thought a judgment irrefragable evidence on 
the subject, follows the decision as indisputable,, 
and censures Lord Bacon, because, in common 
with other authorities, he ascribed the institution 
partly to the statute t. However posterity might 
mistake thi^ act of Parliament, the framers of it 
could not ; and a judgment was pronounced on 
it , only five years after its date, in consequence 
of an attempt in that court* which was defeated, 
to augment the number of the judges t* But, says 
Lord Coke, " the sudden opinion in 8 Henry VIL 
and <rf others'' (he quotes the great lawyer Plow- 
den's Com* in the margin,) " not observing the 
distinction between acts declaratory of proceed- 
ings in an ancient court, and acts introductory of 
a, new law in raising of a new court, is both con- 
trary to law and continual experience §.** Surely 
this venerable judge had here forgotten his own max- 
im : Contemporanea eaypositio est fortissima in lege. 



* Hud. p. 10. 4 Inst c. ^* t Id. p. 50. 

X Plowd. Com. p. 393. § 4 In. c. $. 



186 imtboductioxa 

The courty thus erects by the statute $ Henry; 
VIL> soon fell into desuetude* a proof of its not 
having been consentaneous to the jurisprudence of 
England, or the feelings of the people ; but Car** 
diiml Wolsey, during his Chanceliorship* took ad« 
vantage of the pretext afforded by the statute* to 
raise what was thought by some to be an entirely 
new institution, and which bore little resemblance 
to that described by the act of Parliament. Sir 
Thomas Smith, who enjoyed the office of Secretary 
of State both under Edward VI. and Elizabeth, in- 
forms us, that the court <* took augmentation and 
authority at the time that Cardinal Wolsey was 
Chancellor of England, who, of some was thought 
to have first devised that court, because that he, a& 
ter some intermission by negligence of time, mug* 
mented the^uthority of it.*' ** The measure,'^ cotu 
tinues he, *' ivas marvellous necessary to repress the 
insolence of the noblemen and gentleman of the 
north parts of England, who, being far from the 
king, and the seat of justice, made almost, as it 
were, an ordinary war amongst themselves, and 
made their force their law, banding themselves with 
their tenants and servants, to do or revenge injury, 
one against another as they listed *.'' The success 



* Smith's Commonwealth of England^ b. iiL c 3. It is said^ by 
some writers/ that Hemry VIII. b^;an with the use of the court of 
Star Chamber; and that it was there fimpson was first blasted: bat 
this seems a mistake; Petitions were presented to the eouncil from aU 
quarters against him and Dudley— and the council having examined 
the charges against them^ which it would do at this day^ com- 
mitted them for triaL Howel's State Trials^ toL i. 



1KTB0DUCTI0K» 187 

• 

if the institution^ in this idstance, brouglit it into 
repute $ for, as the power and influence of the aris- 
tocracy set them, in a great measure, above ordi« 
nary jurisdiction, a court, wliich seemed calculated 
to repress their insolence and violence, came pecu-> 
Uarly recommended to the lower ranks of society. 
But, though it be the interest of monarchs, in 
the general case, to limit the power of the aris- 
tocracy, yet where the influence of that body is 
great, and their residence near court common, 
every arbitrary institution becomes an engine in 
their hands against the rest of the people ; and the 
Star Chamber which, at the outset, promised bene** 
fit to the lower classes, was, at no distant period, 
justly complained of as tyrannicaL 

One of the main arguments for the antiquity of 
the court of Star-Chamber is, that there must have 
existed somewhere a power to punish corrupt juries ; 
and that one jury would seldom attaint another: For 
a long time, however, it seldom ventured to punish 
juries, though it affected the right. Sir Thomas 
Smith tells us, that though juries were many times 
commanded to appear before that court, the mat« 
ter was commonly passed over with a rebuke; 
and he specifies only two cases where juries had 
been fined. '< But,^' says lie, << those doings were 
even then of many accounted very violent, tyran^^ 
nical, and contrary to the liberty and custom of 
the realme of England *." The law had provided a 

* Commenwealth of England, b. iiL c i. Sir Thomas aayt dutt 
this happened in a previona reign ; and we may presume, that, as he 
wrote in Elizabeth's time, it was Queen Mary's, and that one of the 
oases related to the jtiry who acquitted Sir N. Throckmorton* 



188 WTBODUCTIOK. 

remedy against comipt juries in the attaint, for. 
which various statutes • were devised: it follows 
therefore, that, since no mention is made of a power 
to punish in the council, and as Sir John Fdrtescue, 
while he speaks of the attaint t, never gives a hint 
of any power to try, or punish, a jury except in that 
way, the council was either not deemed requisite 
for that object or did not attempt to interfere. 
The interposition of the Star Chamber, too, war 
soon productive of baneful consequences t* 

When this pernicious court was first established 
by Wolsey, it proceeded with great caution. . The 
president of the king's council was added by stat. 
21 Henry VIII. c. 20. to the number of the judges 
— ^a clear proof that, even at this late period, it 
was conceived to be quite distinct from th^ coun- 
cil — and by certain acts- of Parliament, both in 
that reign, and even in Elizabeth's, some particu- 
lar kinds of cases were committed to its jurisdic 
tion. But it, in no long tim^e, assumed a bolder 
tone, till it eveii disowned its origin. The whole 
privy council arrogated the right of sitting there 
in judgment, and the question was no longer what 
the' statutes allowed, but what the council in for- 
mer times had done? Having once adopted the 
principle of precedent, it no longer submitted to 
any check upon its proceedings. Every act of the 
council in the worst times was raked up, though 
so many statutes were devised against such pro- 

** See Stat. f De Laud. Leg. Ang. ch. Si. 

X Harrison^ p. 151;. 



INTRODUCTION. 1S§ 

feedings; cases were grossly misrepresented; 
strained analogies were resorted to ; and where 
no shadow of a precedent could be discovered, 
ingenuity could invent — a proceeding the more 
simple, as no regular record was kept*; while 
every abominable recent case was held to be con- 
clusive in all future ones. Where no precedent 
could be discovered or invented, i^en the para- 
mount, uncontrollable poWer of a court, in which 
the monarch might preside in person as sole 
judge, (for having held it to be the same as 
the council, they next assumed that principle,) 
was entitled to proyide a remedy for any alleg- 
ed disorder. The judges of thifi court too, ne^ 
glected no means f^r advancing so arbitrary an 
institution. Under the pretext of desiring to be 
directed by the best legkl advice, they usurped 
the power of nominatting the counsel who should 
plead before them t j a practice that operated to 
the exclusion of every man who had honesty and 
» 

» Hudson tells va ihat in later times the. records were quite ne- 
elected^ " far that some great men have delivered thdjf opinions that 
it was no matter whether any pleading remained or not after tlie 
cause heard, because the judgment cannot he reversed by error: 
and causes have, upon deliberation, been ordered to proceed to hear- 
ing upon copies, the originals being withdrawn by n^cct, and no 
care taken to have them engrossed de novoy and orderly filed ; so also 
the very sentence by which severe punishments have been executed 
i:^n offenders, have by mere n^lect been wholly left unentered, so 
that there is no record to justS^ the inflicting of that punishment," 
•p. 6. He pretends that, in former times, they w«e regularly kept, 
but it is evident that he had not inspected any thing of the kmd. 
HarL MS. Brit- Mus. No. 736, No. 5. gives the same account of Ae 
recdfdd: ' : . * •. 

t Hudson, p. 9«. 



190 INTEODVCTkON. 

independence enough to assert the rights of Ins 
client. The great Flowden fell under their se» 
y vere animadvei^ion for reminding them of th# 

Stat. 3 Henry VII. and Serjeant Richardson, ab- 
out thirty yeltts afterwards/ incurred a censure 
for a demurret to the same effect *• The conse* 
quences may, therefore, be easUy figured : every 
precedent begtit a worse s and, towards the close 
of Elizabeth's reign, though the Star-Chamber 
still retained some decency, it had reached a mon* 
«trous height; but, under the Stuarts, it threatened 
a general overthrow of popular rights, and the 
engrossment of all ordinary jurisdiction. While 
too, the people grijaned under such an evil, there 
were not wanting Writers who were ready to vin- 
dicate its worst measures, and absolutely triumph 
at every instance of usurped power, as reflecting 
a proper reproof upon the factious for complaining 
against so necessary and eminent a court Hud- 
son says of it, *< in fame it matcbeth with the 
highest that ever was in the world; in. justice, it 
is, and bath been, ever free from suspicion of in- 
jury and corruption ; in the execution of justice, 
it is the true servant of the commonwealth ; and 

* HadK»,p<41. HarLMS. 1200. In the Hargr. MS. in the Brit. 
MHIB* these b« in No. 216, at p. 195. a treatise about the Star-Chamber; 
lmt» thmigh the writer atraina to make it appear that it was an ancient 
mmt$ he oitea caaea fit for the cogniaanoe o£ the privy council, not of 
a eoort of law: aiidhe candidly atatea that a queation occurred in 
fUia^beth'a reign, while Sir N. Bacon was keeper of the great seal, 
Kbout jurisdiotioiii betweeii the S^r-Chamber axi4 the Queen'a 
Bendl^ in a case of paijiiry, ^c* and that, after much learned discus* 
>ion> the jud^ oould not carry back the court farther than 3 Benry 
VIL 



INTXQDUCTXON. 191 

whatever it takes in hand to reform^ it bringeth 
to perfection ♦.*' Even Sir Edward Coke himself 
was so enamoured of this court, probably from a 
pleasing recollection of the consequence he had 
enjoyed there, that he pronounces it *< the most 
honourable court in the Christian world, the Par*- 
liament excepted, both in respect of the judges 
and of their honourable proceeding, according to 
their just jurisdiction and the ancient and just or« 
ders of the court.'* He then describes the judges 
in high terms, and concludes/ << This court, the 
right.institution and ancient orders thereof being 
observed, doth keep all England in quiet f." 

* Hudson^ p. 92. Thifl auihor hopes that the point ahout the an* 
tiquity of the court is so settled, '^ that it nerer will he a question in 
future times/' p. 51. 

t 4 Inst. p. 6B. Mr. Tait, in his Treatise of the Star-Chamho; 
though he, nearly in the words of Lamhard, speaks of an inherent 
power in ihe king to call hefore him offenders who cannot he punidied 
by the oidinary courts, ascribes the ordinary jurisdiction of the Star- 
Chamber to 3 Henry VII. and says ihat it was generally nnderstiwd 
that Magna Charta secured the people from the oounciL See a CoUee* 
tion of Discourses of Antiquity, by Heame, voL ii. p. 879 — ^300. Cam* 
den also tells us, that though this court was very ancient, its authority 
was so confirmed by the 3 Henry VII* that some ascribed its origin to it. 
Britan. yoI. i. p. $4. See also generally upon this sulgeet, Compton's 
Jurisdict. of Courts, art Star-Chamber. — Rushworth has also given an 
account of the court of Star«Chamber, '^ being the abstract of a treatiae 
written by a person well acquainted with prooeedings of the same;" 
in whii&» after mentioning that Sir Thomas Smith and Lambard ar» 
the first writers upon the subject, he says-*-' And the reason, proba^ 
XAj, why the learned of the laws did, in their reports, forbear to make 
mention thereof, was, because it entrenched in those days, as of Uto 
time, too much upon the common law of England ; and the abase in 
the exerdse of the jurisdiction of the court, might induce the sages of 
the law to pass it over in silence, as a usurpation of monardiy upon the 
anqfnon law of £ngland| in the pTigudioe of the liberty of the aulge^ 



19S INTRO0UCTIOK. 

Mr. Hume gives an account of this court in the 
following words : << One of the most ancient and 
most established instruments of power y^ss the 
Court of Star-Chamber, which possessed an unli- 
mited discretionary authority of fining, imprison- 
ing, and inflicting corporal punishment, and whose 
jurisdiction extended to all sorts of offences, con- 
tempts, and disorders, that lay not within the 
reach of the common law. The members of this 
court consisted of the privy council and the judges, 
men who, all of them, enjoyed their offices dur- 
ing pleasure : And when the prince himself was 
present, he was sole judge, and all the others in- 
terposed only with their advice. There needed 
but this one court in any government to put an 
end to all regular, legal, and exact plans of liberty. 
For who durst set himself in opposition to the 
crown and ministry, or aspire to the character of 
being a patron of freedom, while exposed to so 
arbitrary a jurisdiction? I much question whether 
any of the absolute monarchies in Europe contain 
at present so illegal and despotic a tribunal *."— 
The erroneousness of this view, in regard to the an- 
tiquity and power of the court, must be sufficiently 
clear from what we have already said upon the 
subject: But we may remark, in respect to its 

' granted by the great charter." Whoever receives this as a reason foir 
the silence of writers upon that subject^ and contrasts it with the 

' f notations from Coke and Lambard^ in the text^ as well with Bacon's 
eulogy upon it^ (Hist. p. 594.) must admit, that the English lawyeni 
«f ancient times had been cast in a different mould from those who 
flourished at a later period. Rushworth's CoL vol. ii. p. 471. See 
also on the Star-Chamber^ Harl. MS. Brit Mus. No. 305. No. 9, 
 V©1. V. p. 453, 454* 



INTRODUCTION. 193 

constitution, first, that it is hot correct to say that 
the judges of the land, who were entitled to sit 
there, held their offices during pleasure ; as it was 
reserved for Charles I., in whose vindication the . 
learned historian so eagerly makes the statements, 
to alter the patents of the judges from qtumidiu se 
bene gesserint, during good behaviour, to durante 
beneplacito, during pleasure cr-<- We shall have oc- 
casion to give instances of integrity in Elizabeth's 
judges in opposition to the Court, which cast a 
deeper stain upon the reign of Charles I. Sdly, 
That there never occurred an instance (rf'any king 
arrogating a right to exercise the judicial function 
in this court, till James I., with the pedantic pre- 
tensions peculiar to him, embraced an opportunity 
to exhibit there his SolomonJike * powers ; and 
even he never attempted it a second time. In 
the next place, it is extraordinary indeed, to find 
this learned author assuming it as an introvertible 
point, that such a court necessarily put an end to 
all regular, legal, and exact plans of liberty, when, 
within a few years of the period he is now treating 
of, the plans of liberty adopted by parliament provr 
ed fatal to the prince. The true answer to his 
question — ** Who durst set himself in opposition 
to the crown and ministry, or aspire to the charac- 

* Solomon was the designation which the courtiers of that monarch 
l^estowed upon him. Williams^ in the Ameral oration for James^ 
makes a long parallel between the king of Israel and the English 
king. — James is said also to have attempted to preside in the King's 
Bench ; but he was informed by his judges^ that he could not delive): 
an opinion. Blackst. vol. iii. p. 41^ Note* 

yoL ,1. o 



194 INTftODUCTlOV. 

ter of being a patron of freedom^ v/bUle «ixposed to 
so arbitnury a jurisdiction ?'' is-^EUiot^ Hampden^ 
and Ae reit who did it. When thb part of Mr« 
Hvxae?s work is coftoparal with that where he re- 
presents Charies L as in so miserable a plight, fhun 
the enoroachoaents of pailiameot on his preroga- 
tive» one woald be apt to condude, thftt the powers 
of the court of Star-Chamber had either ceased, ot 
been abridged, whereas they were vastly extended, 
and the court had entirely lost the very decency 
and appearance of justice which had chaiactarised 
it under the Tudors. << The «la>mh i^ech olf 
whispering/' says even Hudson, <** was not hesxd 
to come from the noble spirit of those times i<^ 
that honourable presence, and not familiarly in« 
trpduced there, till a great man^ of the common 
law, and otherwise a worthy justice^ forgot his 
place of sei^ion, and brought it in this place too 
much in use*/' — *^ The slavish punishment of 
whipping," says another writer, <^ was not heard 
to come from the noble spirits in those times sit* 
ting in that honourable presence/' (This is not 
exactly correct, but nearly so.)—" When once 
^is court began to swell big, and was ddightr 
ed with blood, which sprung out of the ears and 
shoulders of the punished, and nothing would sa« 
tisfy the revenge of some clergymen, but cropt 
ears, slit noses, branded faces, whipt backs, giig'd 
mouths, and withal to be thrown into dungeons, 
and some to be banished, not only from their na- 

* Hudson^ p. 36. 



iiJtiidfiucTlfoir. 195 

tive ^OUiitry to remote isliands, but by order of 
that court td be separated from wife and children, 
who w^ire by their order not permitted to come 
Hear the prisoils where their husbands lay in mi- 
fiery ; then began the English nation to lay to heart 
the slavish condition they were like to come to, if 
this court continued its greatness */' 

But it is not eaisy to conceive what Mr. Hume 
Aieant, by questioning whether any of the absolute 
European monarchies, in his time, contained so des- 
potic a tribunal. Had he never heard of the Inquisi- 
tion? Was he a stranger to the existence of the Bas« 
tile, and to the veiy issuing of kttres de cachet \^ to 
immure \^ithin its dungeons, without a hope either 
of trial or reprieve, all who were obnoxious, not only 
to the executive, but even to the mistresses and 
iliihions of the court ? Nay, had he never heard 
that those lettres de cachet were notoriously sold by 
the minions or mistresses of the court, in order 
that the purchasers might gratify revenge, or ac- 
complish some sinister object by oppression ? — The 
very best French institution was worse than the 
court of Star Chamber ; for, the general excellency 
of the English institutions operated as a check 
upon this, where all proceedings were public, while 
Jn France the judgm^nt-seats were sold, and every 



* Bushworth^ voL ii. p. 475. The account of t)ie court of Stat 
diamber is extracted by him from a manuscript. 

t '^ 1 have been assured/' says Blackstone^ '* upon good autho^ 
rity, that, during the liiild adtninistration of Cardinal Fleury^ above 
^4,000 Uttres de cachet were issued, upon the single ground of tl^o 
famous bull unigenitust Com* vol. i. p. 135^ Note. 



^K 



196 INTRODUCTION. 

tribunal held out, by its example, an eneourage- 
ment to an arbitrary course in all the rest. 
Court of The next subjept that demands attention is the 

m^^T' Court of High Commission, which was founded 
upon a clause of the act that restored the supre- 
macy to the crown, in the 1st of Eliza,beth. The 
words are these : " The queen and her successors 
shall have power, by their letters patents under the 
great seal, to assign, name, and authorise, when^ 
and as often as they shall think meet and conver 
nient, and for as long time as they shall please, 
persons, being natural born subjects, to exercise, 
use, occupy, and execute, under her and them, 
all manner of jurisdiction, privileges, and pre- 
eminences, in any wise touching or concerning 
any spiritual or ecclesiastical jurisdiction, within 
the realms of England and Ireland, and to visit, re* 
form» redress, order, correct, and amend all such 
errors, heresies, schisms, abuses^, con^empts^ of- 
fences, and enormities whatsoever, 'which, hy any. 
manner* spiritualy or ecclesiastical power, authority, 
or jurisdiction, can or may laxvfully be reformed^ 
ordered, redressed, corrected, restrained, or amende 
ed: Provided that they h^ve no power to determine 
any thing to be heresy, but what has been adjudg- 
ed to be ?o by the authority qf the canonical scrip- 
ture, or by the first four general councils, or any 
of them*; or by any other general council, wherein 
the same was declared heresy by the express and 
plain words of canonical scripture ; or such as shall 
hereafter be declared to be heresy by the high 
court of Parliament, with the assent of the clergy 



INTRODUCTION. 197 

in convocation.'* This statute confers no power 
whatever to fine, imprison, or inflict corporal pu- 
nishment; and when the court transgressed its limits, 
the remedy was always in the power of the injured, 
by applying to the ordinary courts for a prohibition. 
The real object was to correct the heresies of the 
clergy, by suspension and deprivation ; and surely, 
if there be a national establishment, all, that enjoy 
functions under it, ought to conform to its rules. 
Were it otherwise^ the oflBce might be converted 
to a very different purpose $ and here it may be re- 
marked, that the numerous suspensions and depri- 
vations in this reign, (their number, by the way, 
may be fairly doubted,) afford no ground for charg- 
ing the government with tyranny, since the doc- 
trine and conduct of the ecclesiastics were irrecon- 
cilable to the establishment under which they ac- 
cepted of livings. At this day the same conse- 
quences would follow.*— Various commissions were 
issued by this princess ; and, in 1^84, she granted 
one to fortyifour individuals, by which she em- 
powers them to inquire into all misdemeanors, not 
only by the oath of twelve men, and by witnesses, 
but by all other means and ways they can devise. 
Mr. Hume, following Mr. Neal, says, that this in* 
eluded the rack, torture, inquisition, imprison- 
ment : But, besides that the rack never was at- 
tempted, the other clauses distinctly shew that it 
never was contemplated. The very next clause 
distinctly appoints them to punish all who obsti- 
nately absent themselves from church, &c. by cen- 
sure, or any other lawful ways and means, and to 



198 INTB0BUCTI02(« 

l^vy the penalties according to the forms prescri^* 
ed by the act of unifo;:mity. The third clause aur 
thorises them to visit and reform heresiest itc. 
which may hfwfutty be reformed or restrained b^ 
censures ecclesiastical, deprivation, or otherwise, 
according to the power and authprity limited and 
appointed by the laws, ordinances, and statutes of tha 
reabn^ The fifth pl^ii^e empowers them to punish 
** incest, adulteries^ and all grievous oflfences pu? 
nishable by the ecclesiastical laws» according to 
the tenour of the laws in that behalf, and according 
to your wisdom, consciences, and discretions} qom-^ 
manding you, or any three of you, to devise all 
such kps^l ways and means for the searching out 
the premises, as by you shall be thought necessa^ 
ry*." Having cleared up this point» we Doay ob* 
serve, that the commision was ejctremely arbitrary 
in authorising the oath es officio, by which the ac-r 
cused was bound to answer interrogatories against 
himself, and in empowering the commissioners to 
fine and imprison. Of its illegality the queen and 
commissioners were so fully aware, that, as we 
learn from Sir Edward Coke, the commission was 
not, as it ought to have been^ enrolled in Cljiance^ 
ry, lest it should have been questioned t. Besides, 
though fines were imposed, not one was levied in 
Elizabeth's time, by any judicial process out of 
the exchequer J « nor apy subject, in his body, 
land^, or goods, charged therewith t*" 

* Neal's Hist, of the Puritfuns^ ypl, i« p. 409* 

t 4th Inst. p. 326, 33^. 

t 4th Inst. p. 331 . ^ 



INTAODUCriON. 19^ 

Many arbitrary acts were Gommkted by the 
CMfimissioners ; but» though Mr. Neal is pleased in 
boe place to say, that the privilege of prohibition 
from Westminster HaU was seldoon allowed by the 
commissicmers *, there does not appecur,^ even from 
his own writings, to have been ^n instance of the 
prohibition havkig been refused t« Indeed^ wbeii 
it came to that, the ordinaiy ccMirta were bound ta 
support, their own jurisdiction, and the judges, in 
l^bat rei^ afforded many proofs of thei^ readiness 
to assert the laws. The great cause ctf* so- many 
submitting to injustice and oppression from this 
court, seems to have been their unwillingaess to 
fi>rfeit all hope of ecclesiastical preferment; for, 
they UQver scrupled to accept of livings under an 
establishment, which yet they would uot allow to 
be a church. The commissioners used to send 
puirsuivants to ransack houses ; but, when an in- 
dividual defended his rights by killing the officer 
who attempted to enter his house by virtue of a 
warr^nit from the commissioners, the ordinary 
judges declared that he was not liable to prose- 
cution, and dismissed him from the bar:|:« It 

• Hist, of Puritans, vol. L p. 128. 

t Neal, p. 590, 591. The author there informs us, that prohihi-. 
tions were freely granted till Laud governed the church, who t^mi* 
fied the judges from granting them. In regard to the law, &c.. ae%« 
4th Inst p. 332, et seq. 

, X Simpson's case, hefore the judges of assize in Northamptonshire,. 
42d Elizaheth, 4th Inst. 332. There is an account of a similfur 
case,, and I presume it is of the same, though it is said to have oc« 
curred in the 38th or 39th of Elizaheth, amongst the archhishop'a, 
manuscripts at Lamheth. The judges were amdous^ as we are there 
informed,, to proceed against the prisoner, hut found they could 
not, as the warrant and whole measures were illegal. The samo 



200 INTROPUCTV>N« 

was in the time of Charles I. that this court lost 
all decency, and was no longer under the controul 
of the laws, as the judges, who were governed by 
Laud, and changed at the pleasure of the king, 
did not longer vindicate their own jurisdiction *. 

principle was recognised in James the First's time^ a recusant 
having been discharged^ becatise his house had been searched by lir-* 
tue of such a warrant. No. 943, art. 25. 

* See 4th Inst. tit. Of Ecdes. Courts. Prohibitions were not de-i 
nied in James' time. See upon this subject the speech of Mr. Pym, 
ih the 16th of Charles I. where he observes, that it had been found in 
James' time, that the statute 1st Elizabeth gave no power to inflict 
punishment, or enforce the oath, ex officio. Pari. Hist. voL ii. 
p. 540. Prynn's Breviate of the Prelate's intolerable Usurpations, 
p. 176, et seq. Charles I. had published a pifodamation in the year 
1626, prohibiting the publication of books on certain points of doc-i 
trine, and charging the archbishops and bishops to reclaim and re« 
press all such spirits as should break the rule prescribed. ^'.Burton 
itnd Prynhe," says Heylen, " amongst the rest, Were called into the 
High Commission^ and at the point to have been censured^ when a 
prohibition comes, from Westminster Hall, to stay the proceedings in 
that court contrary to his Majesty's will and pleasure, expressed so 
clearly and distinctly in the said proclamation: which prohibition 
they tendered to the court in so rude a manner, that Laud was like to 
have laid them by the heels for their pains." Life of Laud, p. 154-5. 
Prohibitions were early complained of by the prelates. Strype's Life of 
Whitgift, 521, 537. I'he following is a curious letter irom Bishop Neill . 
to Laud, dated 22d January 1637 : " Your grace iu one of your letters 
gave me an indinghowthathisMajestyhadassigned the High Conmiis- 
sion fines for St. Paul's Church, and you wished me to think thereof at 
the mitigation of fines, and particularly of the Chester-men's fines. In a 
former letter of mine to your Grace, I informed you, how that we had 
censured indi fined six of the Chester men, viz. C. Brown, Peter Ince, 
Thomas Hunt, Peter Leigli, William Crawford, and Richard Gol- 
bourn, of which six. Brown, Ince, and Hunt have performed the pen-* 
ance enjoined them, and their fines remain to be certified. The other 
three, Leigh, Crawford, and Golbourn, have made an escape and can- 
not yet be found : but there is a writ sent hither from the Chief Barou 
requiring us, under the hands and seals of three or more of us, in 
parchment, to certify aU fines, bonds, and recognizances that concern 
tfccfse three^ (Crawford, Leigh, and Hunt,) with the reasons and times 



iNtnODUCTION. 201 

*« The Queen/* observes Mr. Hume, " in a let* 
ter to the Archbishop of Canterbury, said express* 
l/j that she was resolved, ** that no man should be 
suffered to decline, either on the left, or on the 
right, hand) frma the direct line limited hy authority^ 

of such fined imposed, and bondf and reeognuatp^ forfeited. . I csii« 
BOt hear that any such writ hath been sent to the Commission. I 
hope my Lord Chief Baron^ and the Barons^ do not think themselveii 
to have a sn^erintendalicy over the proceedings of the Commission. 
If it were so, I would humbly prostrate the Commission and myself 
at his Migesty's feet, and b^ a rdease of my executing it. Your 
Lordship knows, that by our commission we are permitted, in some 
cases, to proceed according to our discretions. Shall we be accountable 
to the Barons of the Exchequer for our discretions P It shall be against 
my will. Your Grace also knoweth that, by our c^mmis^on, we are 
directed when and how to certify twice a year imder our common seal 
of office, and not a partial of two or three out of course under our 
private seals/' He concludes by praying that prelates and theii^ 
chancellors may.be made justices of peace. MS. in the Archbishop's 
Lib. at Lambeth, No. 559. Charles authorised Laud to enforce Uie 
oath ex officto, to answer interrogatories, and to hold those pro con* 
fesso, who obstinately refused to take it Id. No. 571. A paper in 
Laud's own hand-writing, was adduced against him at his trial, in 
which tiiere is the following article, being the 11th, " that some 
course may be taken that the judges may not send so mamy prohibit 
turns." Prynne's Complete Hist, of the Trial and Condemnation of 
W. Laud, &c» p. 369. In his defence. Laud said, '* For the prohi« 
bitions, as they were brought to courts, not to me, so they received 
their answers from them, not from me : and as many admitted in my 
time as in so many years of any ether, I delivered in the papers." 
HarL MS. Brit. Mus. No. 787. The title at the boning of the 
▼olume is, " Several papers found in Mr. Dell's study, secretary to 
Bishop Laud, Archbishop of Canterbury." Charles was not content 
with altering the patents of the judges, he granted a commission to 
the privy council to hear and determine all questions that might arise 
in the different courts about jurisdiction, and ftr that purpose to call 
the judges before them, to hear the parties, &;c. The power to grant 
such a commission, it is said in the preamble, '^ is not only our un- 
doubted and hereditary right by our prerogative royal, but also agree- 
able to the practice of our royal progenitors in this our kingdom, and 



f02 INTRODUCTION, 

end hy. her laws and h&unctims^ **^ But the learn<> 
ed author has not attended to t^ie expresa words of 
the letter, which he quotes erroneously, and ha$ 
thus committed a mistake of no snj^ consequence 
to a thorough knowledge of JSUzabeth's govern^ 
ment. The letter, which is dated in Au^st 1571, 
runs thus: — ** Wher we required yew, as the n^tro* 
politan of our realme, and as the principal} person in 
our conunissioA for causees ecclesiastically to h^ve 



to the ^uity aad tni^ mtea.ti<»i of our laws." Rym. Feed. yoL xi^ 
p. 280, €t seq^ dated (^th Majr l6Sh When (4iud became supreme 
jin the councUy it is easy tp co^qeive l^ow^ in legaid to the jurisdictioB 
of the Court of High Comnusslon^ he would ex^rpise the powers 
thus coiDxnitted to him. But the following passage from Clarendon^ 
is deoisive.of the questioQ as to this court After stating, that whikt 
it was eterdsed with iiiod»ation, it ipras an eiiceltent means to yin« 
dicate and preserve the peai:e of the diurch^"— he says^ ^' By.t of late^ 
it cannot he denied^ that by the great ppwer of son^e tnahops at courts 
it had much overflowed the banks which should have contained it j 
not only in meddling with things that in truth were not properly 
within their cognizanoe, but extending their sentences and judgments 
in matters triable beiiore them, beyond that d^ree that waa jiosti^ 
able ; and grew to hsrve so gresU a contempt of the cgmmon law and 
of itiB pi;o£e8sor8 of it> (which was a fatal unskilfuln^ss in the bishops^ 
vrho could never hftve fu£^ed whilst the common law was preserved,) 
that prohibitions from the supreme courts <^ law^ which have, and 
^ust have, the superintendancy overall mfeiiour courts^ were notoidy 
n^lected^ but the judge&reprefaendedfbr granting them> (which^ withf 
ont peijiury^ l^y couldnot deny>) and the lawyers discountenanced f<^ 
iQoying for them(which they were obligedinduty todo.) Soth^th^erebys 
the d^gy made almost a whde profiession^ if not their enemiee^ yet 
Tei^y undevoted to them." The fin^^ aa we learn frQxn.tiie QQbleldaf 
torian^ n^ece.more frequent andheavier after the xepairfaig of $t. Fanlfs 
beganrra drounatanoe likewise evinced hf Neill's letter, quoted 
•hov^. He says, that ^^ the fines were aometimea above the d^ree 
of &e offence, had the jurisdietkm. been unqu/eftionaiit, wkieh ii vmu 
not:' Hist vol. i. p. 983* oct edit. 17174 
.  VoL v» p. ^^ 



{KTl^ODUCTIQK. 909^ 



'^ •' 



good regards that swtch uniform ordre ia tlp^e divyQ,^ 
aervice> and rules of the chircha flight be duly ]^^pt, 
04 in the Imesi m ^wf h^haJf is p^ca^^^ wA \^y: 
our injunctions also declared and expLswed :" (thi^ 
iojunotionB yjf^x^ issued u(l the l^^t of l^j^ re^ by 
virtue of the ajct of i^wformity,) *• ai¥i th^t yon 
shuld caU unto yo^i fpr your assistance eertf n 9^0^ 
bishoji^s, to teform the abuses and, 4i!SK>rder8( of 
^oodry pei:sons» aekyng to make ^terajtiop the^^<^ 
We understandyng that^ with the he^ of the re- 
verend Fathers in God,, the B]9hiop9 of Wypc^ster 
and £ty, a>nd some others, you h«v^ vveU ««tr^ 
into some convenieiKt reion«atvNA of thypg:^ <y«K 
ordred ; a^d tbajt now the said Biphpp of ^y iat 
by our commanidment^ r^payred i^to his dioces%( 
thereby you s^l want b^a as8i3tamce« we i^ynd*' 
yog to have a perfect re^m9^tM?n of ^ abuser a^tr 
tempted to deforme the ygayfqrxfxpy^ piiesqribedi by 
owr lawea and injun.ctiop9» oftd t^at nffpff ^hfi^ ^ 
D#*«c? to declync ^ther ^ the left or on ths t^H 
hand from the direct ^ne fymitted byaufhoritg pfo^ffi 
nsyd lams andiiymction^f dpernestly^ hyouremthfh 
rite rqjfoU^ mil and ehardg yQth kf oil wms IqfyJk 
to precede herein^ as yotk Jume began*;*- &q, Taken^ 
as a wholet this letter cannot be considered indicao 
ttve. of an arbitrary charactei: in the govenunemt^ 
The queen does not pretend to act by her omnt 
authority, hut by that which had been committed 
to her by the legislatune j and* however the policjE 
of enJEorcing uniformity may be airaignpd, (wei 

V . "i 

* Murden. Coll. of State Papers^ p. 183. 
1 



204 INTRODUCTION. 

shall not repeat what we have said on that point 
in the preceding Chapter,) Elizabeth cannot be 
accused, in this instance, of exceeding the limits 
prescribed by Parliament. 
Martial ** ^"* martial law,** says Mr. Hume, " went be- 
^^' yond even these two,'* (the courts of Star Cham- 
ber and High Commission) <Mn a prompt, a;nd ar-* 
bitrary, and violent method of decision. When-< 
ever there was any insurrection or public disorder, 
the crown employed martial law, and it was, dur- 
ing that time, exercised not only over the. soldiers, 
but over the whole people : any one might be pu- 
nished as a rebel, or an aider or abetter of re- 
bellion, whom the provost-marshal, or lieutenant of 
a county, or their deputies pleased to suspect.'^ 
In opposition to so bold and sweeping an assertion^ 
we shall set the following authorities. Sir Thomas 
Smith, who held the office of Secretary of State 
under Edward VI.^ and afterwards under Eliza-' 
beth, writes thus upon martial law : " In warre 
time, and in the field, the prince hath also absolute 
power, so that his word is a law : He may put to 
death, or to other bodily punishment, whome hee 
shall thinke so to deserue, without processe of lawe 
or forme of judgment. This hath heene sameUrm 
used within the realme before any open warre in 
suddaine insurrectior^ andrebelUonSf but that not al- 
lowed of wise and graue men^ who, in that their 
iudgement, had consideration of the consequence and 
example f as much as qf the present necessity, espe^ 
daily when, by anie meanes, the punishment might 



INTRODUCTION. 205 

heme been done ly order of lawe. This absoluCe 
power is called martiall law, and euer wai^, and he-* 
cessarily must be, used in al camps and hosts of 
paen, where the time nor place doe suffer the tar*^ 
riance of pleading and processe, be it neuer so 
short, and the important necessitie requireth 
speedie execution, that with more awe, the souldier 
inight be kept in more straight obedience, without 
which neuer captain can doe any thing vaileable 
in the warres*.'* " If a lieutenant, or other that 
hath commission of iparshal} authority,^' says Sir 
Edward Coke, " in time of peace, hang or other- 
wise execute any nian by colour of marshall law, 
fJus is murder i for this is against Magna Charta, 
cap. 29* and is done with such power and strength^ 
as the party cannot defend himself; and here the 
law implieth malice. Vide Pasch. xiv, c. S. in Scai« 
4cario, the Abbot of Ramsey's case. Thom. Couiitee 
de Lancaster being taken in an open insurrection, 
was by a judgment of marshall law put to death, in 
anno 14 Ed. IV. This was adjudged to be unlaw- 
ful, th qtidd non fuii arrainiatuSf sen ad responsionem 
positus tempore pads, ed qu^d Cdncellaria, et alios 
curicp regis fuerunt tunc apertce, in quibus lexjiebat 
Wfdctdqvej proutjieri consttevit, quod contra car tarn de 
fihertatibus cum dictus Thomas fuit unus parium et 
piagnatum regni non impriscnetur ^c. Nee dictus rea> 
super eum ibity nee super eum mittet, nisi per legale 
Jtidicium parium sugrum, S^c. tamen tempore pads 

.^ Smith's Commonwealth of England^ b ii. c. iv.. 



fiO& INTRODUCTION 

absque arratUmnentOt seu resp&nsionef sen legaU jiu 
dkio parium sMrum^ SfC. adjudicatus est morti */* 

In A^ Receding chapter a view has been taken 
ef the state of society ; and it has been shewti 
that the higher, and evieii the middling classes, 
instead of deprecating certain commissions of mar-^ 
tial law, eagerly desired them, the aristocracy 
conceiving that they had no cause to dread those 
commissions when the execution was left to them- 
selvtss, who arrayed the military. The insurgents 
could only be put down by force ; and I have not 
met with evidence of any executions by martial 
law of those taken with arms in their hands, while 
the legal authoritiies held that the commission was 
80 far from warranting a recourse to martial law, ex- 
cept in the case of actual necessity, that the act 
would have been murder in the agents. Procla^ 
mations, containing threats of punishment against 
law, were frequently made ; but they were only 
used in ter^arem^ without the slightest intention of 
being carried into effect t : and we may conclude 
that, as it was perfectly understood, ttie commis- 
sion of martial law would not justify any illegal 

* Sd Inst. p. 58. Sir M. Hkle says^ th*t, '^ if in time of peac^ t 

commission issue to exercise martial law^ and such commissioners 
condemn any of the king's suhjects not heing lifted under the military 
power^ this is without all question^ a great misprision^ and an emn 
lieous proceeding, and so adjudged in parliament in the case of the 
£arl of Lancaster. And in that case the exercise of martial law in 
tfane of peace is murder." Plfeas of the Crown^ vol. i. p. 5Q0. See' 
also his Hist, of the Common Law^ voL i. p. 53. 

t Sir Matthew Hale informs us^ that proclamations were issued 
with penalties merely in terrorepi, as none of the penalties could he in<> 
flicted. Fftr8.Sec. of ajreatise by Hale in If aigrave's StateTracts^ch. 9« 



act^ sd the object was l^e satiie as in the tBste x>f 
prodbaittatiotis<— to inspire teiror. The inete cotn- 
missions, therefore, and Mr. Hutne refers otily to 
them, prove nothing; 

Mr. ttutne proceed* thlis : ^ Lotd Bacon feays 
that the trial at common la*r, gtatited to the Earl 
of Essex and his fellow conspirators, was ^ f»- 
V6ur ; for that the case would have borne and re- 
quired the severity of martial law,*' The author 
rity of Bacon's name demands attention, thbiigK 
that great philosophei^ was ever ready to prostiv 
tute his talents and hi$ pen to any st^te purpose 
which promised to advance his owh fortune i 
but, what says he of the very production front 
whrch Mr. Hume draws his statement ? — That it 
was written at the express destre of the Queelrti 
and repeatedly perused and altered, both by her 
and her council, « Myself,'* says he, ^^ indeed, 
gave only words and form of style in pursuing 
their directions *.'* In order to understand th^ 
pieaning of this state paper, (for it Was nothing 
else,) entitled the Declaration of the Pi*actices and 
Treasons of Robert, Eatl of Essex, it is proper to 
remart^ th^t Essex was a great favourite with the 
people, who (after that nobleman had paid the 
mulct of his offences, apparently the offspring ra- 
ther of a disordered mind, than of any purpose 
to overturn the government, and yet such as no 
government cpiild overlook) were so enraged at 
nis fate, that it was deemed necessary to quiet 
thei^ by this state paper. But, though it be sai4 

* fiacon's WcikB, Bircli'9 edit. toI. ii. p, 13^. . j 



80S INTRODUCTION. 

in the outset, that the case would have borne, and 
required the severity of martial law, that point is 
barely touched, not dwelt on, and the production 
must be considered an homage to public opinion^ 
to which the monarch would not have descend- 
ipd, had she not felt the influence of the popular 
voice. Surely, however, a state-paper, published 
with a view to compos^ the public mind, and to 
impress the idea of her ipajesty's clemipncy as well 
^ of the greatness of the insurrection, cannpt be 
regarde/l as a proof either of the powers really 
exercised, or arrogated, by the sovereign: nor 
ought the historian to have quoted Bacon as his 
Ituthority, without mentioning that he had virtually 
disclaimed the publication. Eli^zabeth's conduct 
in regard to the unfortunate Esse:2^ on a former 
occasion^ sufficiently bespeaks her respect for the 
laws and her solicitude for popularity. She had re- 
solved to bring that nobleman to trial, but was 
dissuaded by Bacon, who told her, that^ as the 
Earl was well spoken, and possessed *^ the elo-f 
quence of accident, — the pity and benevolence of 
Jiis hearers/' — it would not be for her honour to 
))ring his pase into public question ♦. 

^ Bacon's Apology for his conduct to Essex in his Works, vol. if. 
p. 130. It is strange that Mr. Hume ^ould not have adverted tQ 
this, instead of ascribing the abandonment of Elizabeth's purpose to 
her returning tenderness towards that nobleman. The Queen then 
thought of publishing something from the Star Chamber to vindicate 
the Earl's restraint. Bacon also dissuaded her from that^ assuring hes 
that it would have a quite different effect upon the people from what 
the anticipated, as they would say Essex had been woundedi behind 
his back. ^She would not be dissuaded however, yet she aften^ardfi 
confessed that Bacon's advice ought to have been fc^owed. P. 131. 



INTRODUCTION. 209 

^< We have seen instances/' continues Mr. 
Hume, " of its" (martial law) « being employed 
by Queen Mary in defence of orthodoxy.'' Now, 
in the first place, Mary's reign, as we have already 
observed, ought never to be cited in illustration 
of the ancient government of England. In the 
second place, though it be true that a proclamar 
tion was issued against books of heresy, treason, 
and sedition, wherein it is declared, that whoso- 
ever had any of these books, and did not pre- 
sently bum them without reading them, of shew- 
ing them to any other person, should be esteemed 
rebels, and without any farther delay be executed 
by martial law, yet it does not appear ever to have 
been acted upon, nor even to have been followed 
by any commission of martial law. Besides that, 
as we have already seen, upon the highest authori- 
ty, proclamations with illegal penalties were often 
issued without any view to their being carried into 
effect, the proclamation unaccompanied with such 
a commission, was innocuous, since no person was 
authorized to act upon it. 

The proclamation was issued on the 6th of June 
1558, only a few months before her death, as 
she died on the 17th of November following * : 
And we may remark, in passing, that it is strange 
Mr. Hume has stated the fact under the head of 
transactions in the year 1555. Bad as Mary's 
government was, it never arrived at the stage of 
despotism ascribed to it by the elegant historian : 
and as it became worse towards the close of her 

* Burnet, vol. iii. p. 657, 666, 
VOL. I. P 



%■ 



^iO umcypvcTiov* 

retgn, so tike peopfo indicated by m9txy ciromn- 
stances that tliey could not have endured it much 
longer *. 

** There remains a letter," proceeds Mr* Hume, 
^ of Queen Elizabeth's to the £^1 of Sussex^ aftei; 
the suppression of the northern rebellioaa* in which 
she sharply reproves him because she had not 
heard of bis having executed any criminals by 
martial law ; though it is probable that near eight 
himdred persons suffered <wae way or other on ac-. 
count of that slight insurrection." (<Tow» besides 
that there appears to be a great mistake in regard 
to the number that suffered t, it may be remarked, ' 

* In addition to what lias beeki uSd IK the prtoedins <skmUP^f wt 
•liall Jiut refer to Bunelt,, voL iii. p« 6^ et ^q. See alsp p. 16^ 16& 

t JUr. Hume's statement regarding the numhei that suffered hy 
the executioner^ (see also p. 164.) is founded upon an account^ giyen 
by Leslie^ Bishq> of Ross^ of his negodatioas : But> as that indiTidua^ 
was the gfeat agent of Mary, Queen of Scot^ for stirring up this re^ 
hdlion^ (in his account of his Life^ he takes credit to himself for 
his indefatigable pains in obtaining the support of foreign states to 
this Catholic enterprise^) and as he was long confined for his partici- 
pation in that aflSiir^ his testimony to such numerous executionsi, nu« 
Hieioiis, indeed, when it is considered that only seventy-two suffered 
in the preceding reign for Wyat's rebellion, would be entitled to little 
credit while contradicted by Camden, and uuTOuehed by any other ai>- 
ihority,*^were it to that ^^ct. But there appears to have been a great 
miatake in the matter. Mr. Hume has quoted from the printed copy oi 
Leslie's work, in Anderson's Collection. Anderson, however, states that 
he took it from a manuscript in the Advocates' Library at Edinbiu]^ 
which he c(8|)ectnred from the character to be in the hand- writing of 
the bishop's sejoretary. But, on inspecting the manuscript, I fouB^ 
to my astonishment, the number viii, instead of eight hundrel. 
Now, Camden tells us, that sixty-ax petty constables were executed 
at Durham,, and some others elsewhere, whence I conclude,^ that 
the number meant by Leslie was eighty. If this be disputed, I 
would ask, then, why not substitute any othi^r number as well as 
800, which, besides being contradicted by Camden, carries impro- 
bability 09 the face of it? Mr. Anderson indeed says, that he 



^ 



with all d^fer^nce tp this acooiQpUshed writer^ that 
the veiy tiict of cnmin^l3 npi^ having be0n executed 
by martial law in thia casQ, is a stril^iog proof o£th(B 
general ^eling^ and uqd^r3tai^4iDg of the age« For 
the northern rehelMop was not by aqy means a slight 
insurrection, even according %o Mr. Quipe's ac« 
couQt pf it in the F^Bj^r pUee. Spme of the 
chief nobility were concerned in th^conspirar 
cy ; foreign powers encouraged and l|p|ted it ; 
and it was only prevented from being raost for- 
w midable, by a discovery of their designs having 
objyiged the rebels to take the field too soon. As 
it was, however, the insu|*gept$, regularly trained 
and headed by the Earls of Northumberland and 
Westmoreland, were four thousapd foot and six- 
teen hundred horse strong, a considerable army 
for the time, and, independent of an expected 
supply ef troops and arms i[rom the Duke of 
Alva, governor of the Low Countries,, they con& 
diently anticipated a junction with all the Catholics 
in England, an event no less dreaded by the 

compared this copy Tirith one in a more modern hand in the Cotton 
Collection^ and that he took from the last an additional part of the 
narrative which the other wanted^ as not having heen hrought so far 
down : But there is not a syllable about any correction ; and, if the 
numbem do disagree, whether shall what may he termed an origihaf, 
or an after copy, he preferred? I omitted, while I attended the Bri- 
tish Museum, to inspect the oopy amongst the Cotton manuscripts ; 
but I shall endeavour to have the fact ascertained, and give it in 

Jfffikote C, at the end uf the volume. 

^^^ There were two risings in the north, (Camden in Ken. p. 413, 13,) 
and in the second were three thousand borderers, who were mere rob- 
bets ; yet ihe Queen published an act of indemnity immediately after 
they were routed. 

The proclamation against bidls, &c. in 1570, is of a very different 
nature fiwnn that of 15S8, and shews the moderation of government. 
Strype's^nn. vol. i. p. 575. 



Protestant party, than hoped for by their encf-^ 
mies. Indeed the activity of government pre^ 
vented another rising in Su£K>lk** The leaders 
issued proclamations in a regular form, and every 
thing bore the appearance of a terrible convulsion. 
Dismay prevailed amongsjLProtestants who had so 
lately escaped from the (^Sjfi tyranny of Mary f : 
and if yukmsy draw an inference from their gene- 






i" 



ral con^jpnts of her majesty's ill-judged clem^cy | 

to Catholics, they burned with a fury towaifds the ^^ ' 
insurgents, at least equal to her own t. A fact , 

must always be taken along with all its circum- || 
stances; and whoever weighs all these matters, 
will cease to regard this as indicating that arbi- 
trary. character in the government which has been 
ascribed to it. 

" But the kings of England," continues Mr* 
Hume, << did not always limit the exercise of this 
law to times of civil Wat and disorder. In 1559, 
when there was no rebellion or insurrection. King 
Edward granted a commission of martial law, and 
empowered the commissioners to execute it, as 
should be thought by their discretions most neces- 

** Stiype's Annals^ yoI. i. p. 66S, A conspiracy was likewise 
hatching in Norfolk^ Id. p. 577. See also Mr. Hume's own account 
of this leheUion in the body of his history. There were an immense 
number of ** masterless" men in the north about this time : Warrants 
Were issued against them,' and thirteen thousand were apprehended, 
which broke the strength of the rebellion, Strype's Annals, vol. i^M^ 
p. 535. ^ 

*(* A lively picture of the alarm is to be found in Strype's Annals^ 
vol. i. p. 553. See upon the whole> p. 546. et seq. See also a lettef, 
from Elizabeth to Essex, amongst the documents regarding the rebd« 
-lion, in Haynes, p. 555. et seq. 

X Elizabeth was blamed by P. We^tworth in Parliament for her 
clemency to Mary Queen of Scots. ** 



^ 



I« 



1^ t^ 

INTRODUCTION. 21S 

sary/* In order to^nderstand the object and 
cause jftjlhis commission, the reader must recal to 
his remembrance the state of the country at the 
time. The lower classes, reduced by the change in 
manners, as well as by the R^ormation, to beggary, 
and detesting the nobiUty and gentry as the au^ 
thors of their misery, were almost in a continual 
state of insurrection during Edward's reign ; and, 
as|the aristocracy were threatened by the insur- 
gents, 80 they "ardently desired sanguinary mea- 
sures against that uij^topy class — sl desire in which 

."most who profited by the new system appear to 
have concurred. On thefother hand, the prince, 
or rather protector, was so far from acting out of 
any arbitrary spirit, that he pitied the poor, and 
endeavoured to alleviate their misery, by exe- 
cuting the laws for preserving the old state of 
things : the protector's leHJIy, by the hostility it J% 
excited against him amoi^t the higher classes, 'V?" 
proved the main cause of his ruin,~-a symp- 
tom of weakness rather than of exorbitant power 
in the executive. But, after his removal, the fury 
of the aristocracy against the tumultuous being no 
longer restrained, that commission, which Mr. 
Hume has referred to, was procured from the 
throne ; and, as the very class who solicited, were 
allowed to execute it, they had no apprehensions 
of their own rights being affected by such a 

^ant *. It is inconceivable^, however, upon what 

4 

* Besides generally referring to the preceding Chapter^ and the au- 
thorities there quoted^ we shall here refer to the following : Strype's 
Kc. Mem. vol. ii. c. xvii; p. 156, 152. c, xxi. p. 166, 171, 182, 192^ 



il4f INTRODUCTION. 

principle the learned histomn should have said 
thkt there was no insurrection at that ^tt^y for 
Strype, his own authority besides in vari^b parts 
df his work, describing the country as subject to 
the most dreadful commotions during this reign, 
thus expresses himself in the veiy passage on which 
tlie historian founds his statement : *^ Pdpular dis- 
turbances and tumults seemed now to be veiy fre- 
quent ; aiid the common people, uneasy under ll^e 
present juncture, ^hich occasionefif surely, that se- 
vere commission which wasjfcyen out this montk 
df March, to John Earl of Beofbrd, &c. to put in 
execution all such mafllial laws as should be 
thought necessary to be executed, and instructions 
were also given in nine distinct articles */* The 
commission may be pronounced cruel and impoU- 
tic ; but it argued any thing rather than power in 

Jpjjk the prince ; and ther»^ no evidence of its having 

'^^ been acted upon. 

" Queen Elizabeth too," sajrs Mr. Hume, *« was 
not sparing in the use of this" (martial) « law. In 
157s, one Peter Burchet, a puritan, being persuad- 
ed that it was meritorious to kill such as opposed 
the truth of the gospel, rim into the street, and 
wounded Hawkins, the famous sea-c£iptain, whom 
he took for Hatton, the queen's &vourite. The 



804. c xxvii. p. 819^ S53. App. p. 105^ 109^ &c. See also articles 
againgt Somerset in Howel's State Trials. By the way, had Mr. Jus- 
tice Blackstone consulted Strype's Mem. he would have discovered the 
origin of Lords- Lieutenants, &c. who were first appointed in 1549. 
£c. Mem. vol. ii. c. xx. p. 373. Black. Com. v. i. p. 411. 
* Strype's Ec. Mem. vol. ii p. 373, 458-9. 



IMTRODUCTION. 915 

queen was so incensed, that she ordered him to be 
pnnisl^ instantly by martial law ; but, upon the 
remonstrance of some prudent counsellors^ who 
told her that this law was usualbf confined to tur« 
bulent times, she recalled her order, and deUve)*ed 
over Burchet to the common law/' Of the two 
authorities referred to by Mr. Hume, Strype and 
Camden, Strype'a account of the matter is the most 
particular : and, in illustrating a case of such im* 
portance to the constitutional history of England, 
we aball make no apology for giving his words : 
<• This wicked principle of murthering for God's 
sake, the queen apprehetided so much danger in 
as that of her own life, as well as that of others of 
chief rank about her, and so enraged her, that, at 
first, she commanded this murtherer to be imme- 
diately executed by martial law. And a commis- 
sion for that purpose was drawn up ; and this she 
resolved to do, as her sister Queen Mary had done, 
in that severe reign, towards Wyat,"— It must have 
been towards one of Wyat's followers, if towards 
any; for he was himself regularly ^tried — " espe- 
cially having heard it by report of the Earl of 
Leicester, and he from the admiral. Yet not with 
any their approbation of such rigorous doings. 
So the queen in her great closet, at service there- 
in, gave order to Mr. Secretary to bring to her 
the commission for execution of this man by mar- 
tial law, to be signed by her after dinner. But 
the Earl of Sussex, Lord Chamberlain, and the 
Lord Admiral, were much against it. And the 
Lord Treasurer was not then at court, whose only 






216 INTRODUdTION. 

advice was then wanted, to prevent it The earl, 
therefore, even while he was at dinner, wrote to 
him, it being the 28th of October, * first praying 
God to put it into the queen's heart to do the best, 
and then acquainting him with the particulars: 
as that the lord admiral was greatly grieved with 
the speech that he should devise it, when as he was 
directly against it. That, indeed, he had told my 
Lord of Leicester of the execution done in Lon* 
don, in the rebellion of Wyat, but he never told it 
to the queen. That the Earl of Arundel was also 
very vehement against it in speech to him (the 
lord chamberlain.) He added, that thQ queen 
asked for the lord treasurer, and seemed to look 
for his being at court, because it was holy-day.* 
At length, by the counsel, as it seems, of the lord 
treasurer, the queen set aside that purpose of her's 
of Burchef s speedy execution after that man- 
ner *." 

Of Wyat's adherents, fifty are said to have been 
executed in London, and twenty-two elsewhere t. 

• Strype's An. vol. ii. p. 288. 

t Mr. Hmne^ on the authority of a letter from Mons. de Noalles^ 
(then ambassador inEngland) to the Constable of France^ says^ that four 
hundredpersons are said to hn^ve suffered for this rebellion; but the state- 
ment by Noalles is absurd^ and the cause of it may be conceived from the 
compliment which he pays to his own good king, by contrasting his cle- 
mency towards the multitude in a sedition at Bouideaux about the Ga- 
belle^ with the English queen's cruelty. Embass, de Noalles^ vol. iii. p. 
124. The Protestants exa^erated Mary's cruelty, and loudly con« 
demncd it in this instance. It cannot be conceived^ therefore^ that 
the number would be diminished^ and the various executions are 
distinctly enumerated by them. The account by Leslie, Bishop of 
iioss, of the executions on the northern rebellion under Elizabeth, is, ^ 
as we have seen, equally questionable. But the historian seems fond 



INTRODUCTION. 21 7 

But these appear to have been regularly arraigned 
and condemned. Wyat was taken on the 7th of 
February, and the executions took place on the 
14th, — and had it been otherwise, the matter must 
have been too notorious, to have been unknown 
either to Elizabeth, who was confined on a suspicion 
of having been engaged in the conspiracy, or to 
any one else, and would have been particularly 
mentioned by historians : there must have been 
only one execution therefore, by martial law, not 
executions ; indeed it is execution which is men- 
tioned. If any such execution really occurred, the 
probability is, that it was one of Bret's soldiers, who, 
having been sent against the insurgents, went over 
with their leader to the opposite party. Whoever 
be was, he was a man of no note, as all such were 
regularly condemned.— If any case could have jus- 
tified a resort to martial law upon the captives, it 
was Wyat's ; for the insurrection was, at one time, 
most formidable : he expected, and the other party 
apprehended, that the Londoners would join him ; 
and, had he not been too irresolute and feeble- 
minded for such an enterprise, it might have been 
attended with a different result *. 

Otmden's account of Elizabeth's intention to- 
wards Burchet, is this — " The queen was so extraor- 
dinarily incensed at Burchet's assassinating Hawk- 



of large numbers on those occasions : they indicate the greater despo- 
tism in the prince^ and form a contrast with the mildness of the Stuarts. 
 Burnet^ vol. iii. p. 484, et seq, Strype's Ec. Mem. vol. iii. p. 86. 
et seq. Heylin's Hist, of Queen Mary, p. 33. et seq. 



1 

« 

1 



218 INTRODUCTION. 

ins, who was in great favour, that she commanded 

that the man should be presently executed by mar- 

^ tial, or camp law, till she was informed by some 

prudent persons, that martial, or camp law, was not 
to be used but in camps, and in turbulent times ; 
but that at home, and in times of peace, the pro- 
ceedings must be curried on in the way of a judi- 
ciary process *." 

It is unnecessary to observe, in regard to that 
case, that it is so far from supporting the state- 
ment of Mr. Hume, that it does exactly the re- 
verse. Had martial law been common, could it 
ever have happened that one solitary instance, and 
that doubtful too, which is said to have occurred 
in the hour of a great rebellion carried into the very 
capital, afforded the only pretext for the queen*s 
intended proceeding ? When is it, too, that cour- 
tiers so strenuously oppose an arbitrary purpose in 
the sovereign ? Only when it is inconsistent with 
the general spirit of the government. 

" But,** proceeds Mr. Hume, " she'* (the queen) 
** continued not always so reserved in exerting this 
authority. There remains a proclamation of her*s, 
in which she orders martial law to be used against 
all such as import bulls, or even forbidden books 
and pamphlets, from abroad ; and prohibits the 
questioning of the lieutenants, or their deputies, 
for their arbitrary punishment of such offenders, 
any law or statute to the contrary notwithstanding.^' 
It has already been said, upon the highest autho- 

* Kenneths Coll. toL ii. p. 449. The translation is literal. See 
the original, Pars ii. p. 269. Ed. 1677. * 



INTRODUCTION. 219 

rity» that proclamations were frequently issued, 
containing a threat of penalties which were not 
mdknt to be carried into effect, but were published 
merely for the purpose of creating a "Wholesome 
terror amongst certain classes. Yet, though the 
proclamation alluded to by the historian was not 
acted upon, the reader may p@|^aps be of opinion, 
that if the fact were as stated oy him, the govern- 
ment must h^ve been very arbitrary, and, there- 
fore, it will be Necessary to investigate the matter. 
In entering upon this point, we must repeat, 
that a case must always, with a view to un- 
derstand it, be considered along with all its ad- 
juncts, and never was this more necessary than on 
the present occasion. Besides the open rebellion 
in the north, by the Catholic party, during this 
reign, the Papists were ever engaged in plots and 
conspiracies against the queen's life and the esta- 
blished government. To encourage these designs, 
the pope issued a bull, in the early part of the 
leign, absolving the subject from his allegiance, 
aiid instigating him, under the pain of damnation, 
to*dethrone Elizabeth, and proclaim a Catholic 
prince*. The bull, after having been privately 
circulated, and having occasioned the northern 
rebellion, was affixed by John Felton to the Bishop 
of London's gates t, and set up at Pont St. Esti- 

* Bacon's Works^ vol. ii. p. 43. He, with others^ ascribes the 
northern rebellion to it : this is also done in the statute^ 13 Eliz. c.,2. 

tStaTpe's Annals, vol. i. p. 486; vol. ii. p. 17. Camden in Ken. 

p. 427, et seq. Felton scorned to fly, thinking the act meritorious, 

and he was reputed a glorious martyr. Camd. p. 428. 

3 



d20 INTRODUCTION. 

enne in Paris on the same day : the sensation created 
by it may be imagined from the language of Bishop 
Jewel, who, in a sermon, characterised it <^ aS a 
practice to work much inquietness, sedition, and 
treason, against our blessed government: For it 
deposed the queen's majesty (whom God long pre- 
serve) from her royal seat, and tore the crown 
from her head. It discharged all her subjects from 
their true obedience : It < armed one side of them 
against the other : It emboldened them to bum, 
to spoil, to rob, to kill, to cut one another's 
throats *." Parliament, justly alarmed by this, and 
other practices of the Romish party, passed acts, 
making the importation of bulls from Rome, which 
had been previously punishable with the pains of 
praemunire, high treason ; and likewise declaring it 
to be treasonable to compass, or imagine to de- 
pose the queen, or intend her bodily harm, or ad- 
visedly to deny her title, or to affirm that she was 
a heretic, schismatic, illegitimate, &c. or to in- 
cite foreigners to invade the kingdom, &c. or to 
deny the power of parliament to regulate the 
succession t. These statutes were evaded, and 
therefore it was afterwards made treason to practise 
to withdraw the subjects from their obedience to 
their prince and the established reh'gion, or to be 
reconciled to the church of Rome 1:. Even this, 
however, did not frighten Catholics into sub- 
mission, who, esteeming it a glory to destroy 

* Strype's Annals^ vol. i. p. ^39. t 13 £liz. Ct i. axx^ ii^ 

X 23 Eliz. c. X. 



INTRODUCTION. 221 

an heretical princess, no sooner failed in one 
conspiracy than they engaged in another. Of 
the public feeling, some idea may be formed 
from the voluntarjifessociation into which the 
pee||fc and commons of parliament, not in their 
clS^acter^ of legislators, but of noblemen and gen- 
tlemen, entered, in the year 1584 or 1585, binding 
themselves by oath to revenge the queen*s murder, 
should the malice of her ^|emies prove successful *. 
The Babington conspiracy followed, and in 1588, 
the anntis mirabilis, as it is called, the Spanish ar- 
mada threatened general destruction. The in- 
vaders expected that the English Catholics would 
flock to the standard of the Duke of Parma the 
instant he landed, and, though a few of that body 
proclaimed their determination to resist the inva- 
sion, the Protestants apprehended the event of 
which their enemies were so confident. While 
general consternation prevailed, as it was scarcely 
believed that the kingdom possessed resources to 
meet so mighty an armament, and the fear of in- 
ternal commotion increased the alarm j while 
every preparation testified the greatness of the 
emergency, and Elizabeth displayed a heroism 
which must render her memory respectable to the 
^latest ages, the Pope issued a bull, declaring her 
accursed, and deprived her of her crown, and 
committing the invasion and conquest of the 
realm to the Catholic king, with power to execute 
his purpose by sea and land, and to take the 

• Strype's Annals, vol. iii. p. 293. 



^» 



fiSS miODUCTIOK. 

erown to himself, or to limit it to aucfa a poten- 
tate as should be agreed on by his holiness and 
him. This bull >vas followed by a great many 
c(^ies of an English bodp the production of 
Cardinal Allen, which was printed at Ani^mrp, 
and sent into the. kingdom even while the^jr- 
mada was daily looked for, (and another by 
the same author was ready for publication) de* 
nouncing Elizabeth as^a usurper, heretic, and 
schismatic, as illegitimate, &c. equally unwor- 
thy of rule and of life ; charging all to join the 
Duke of Parma, and proclaiming it to he lawful 
to lay violent hands on the Queen. Other works 
of a similar tendency were published at the same 
time ^* At so awful a crisis, when the existence of 
every thing dear to Englishmen was at stake, the 
importation of bulls from Rome, or of forbidden 
books, acts of high treason in themselves, assumed 
the blackest dye, and may fairly be pronounced in fa- 
miliar, yet expressive language, a beatiilg up for 
recruits to rebellion, for the purpose of forming a 
junction with an invading and inveterate enemy. 
But there was no time left to assemble parliament, 
that new measures against treason of so audacious 
a nature might be devised in the usual course ; 
and the executive, for the common safety, was^ 
justified on such an occasion, in adopting an ex- 
traordinary, and illegal, remedy for the evil. The 
plea of necessity ought ever to be received with 
caution, but where it does exist, it is, of course, 

* Strype's Annals^ vol. ziL b. ii. c. 18. 



»s 



paramount to all law^ It is to the credit of 
Elizabeth's government, however, that this pro- 
clamation, which Mr. Hume has adduced as a 
ffbot of the despotism of the times, was merely 
us^ in terrorem^ according to a practice, as has 
already been seen, sometimes resorted to; and that 
it was not followed by any commission even ver- 
bally authorizing the carrying of it into effect. It 
is worthy of remark, that parUament, afler the dan- 
ger was past, while it gave the tribute of applause 
to the Queen, which her conduct had so fairly 
earned, testified its watchfulness over the public 
liberty, by petitioning for leave to bring in a bill 
of indemnity for all illegal imprisonments in the 
season of alarm t. 

Thus the case, which Mr. Hume has repre- 
sented as the abstract of tyranny, appears, upon 
examination, in a very different light indeed: 
And had that elegant writer attended to the date 
of the proclamation, he could not have fallen into 
such a mistake y for, in relating the affitirs of that 
m^^norable period, he says, that Elizabeth, << while 
she roused the animosity of the nation against po- 
pery, treated the partizans of that sect with mode- 
ration, and gave not way to an undistinguishing 
fury against them." " She rejected all violent 
counsels, by which she was urged to seek pre- 

* The proclamation is dated on the Ist July. The Armada had 
retired for a season^ but sailed again for the English coast on the 15th 
of that month. 

t Pari. Hist. vol. ii. p. 258. 



£94 INTRODUCTIOK. 

tences for dispatching the leaders of that party : 
She would not even confine any considerable num'^ 
ber of them.** 

" We have another act of hers/* (Elizabeth's) 
continues the historian, •* still more extraordi- 
nary. The streets of London were much infested 
with idle vagabonds and riotous persons. The 
Lord Mayor had endeavoured to repress the dis- 
order i the Star Chamber had exerted its authori- 
ty, and inflicted punishment on the rioters. But the 
Queen, finding these remedies inefiectual, revived 
martial law, and gave Sir Thomas Wilford a commis- 
sion of Provost-martial, granting him authority, 
and commanding him, upon signification given by 
the Justices of Peace in London, or the neighbour- 
ing counties, of such ofienders worthy to be speed- 
ily executed by martial law, to attack and take the 
same persons, and in the presence of the said jus- 
tices, according to the justice of martial law, to 
execute them upon the gallows or gibbet openly, 
or near to such place where the said rebellious and 
incorrigible offenders shall be found to have com- 
mitted the said great offences;^' " I'suppose,*' ob- 
serves Mr. Hume, " it would be diflBcult to produce 
an instance of such an act of authority nearer than 
Muscovy." The only authority quoted by this 
writer is the commission itself; but, surely, an in- 
sulated state paper is not calculated to afford suffi- 
cient information upon so important a subject, since 
it is impossible to estimate a measure correctly, 
without a thorough knowledge of all the circum- 
stances out of which it emerged, and with which it 



WTBODUCTION. QiS 

was accompanied; particularly as proclamations 
and commissions were sometimes issued in terro^ 
rem, though it would have been murder in the com- 
missioners to have acted upon them. The state of so- 
ciety, as we have described it in the preceding 
chapter, was, throughout England, wretched } and 
London, at this time^ i/vas greatly infested with 
vagrants, some of them discarded soldiers, others 
assuming that and various fictitious characters, 
who colleagueing with the apprentices, then a 
powerful, as well as a numerous body, excited 
alarming insurrections. Some years before, the 
vigilance of the city government had frustrated 
one great attempt by the apprentices against the 
foreigners, who were generally hated as engross- 
ing the trade, which the people conceived to be 
their own by birthright. This failure did not 
curb the licentiousness of that body, who had 
now acquired such an increase, of strength by 
their junction with the vagrants ; and as milder 
remedies were resorted to in vain, the city ma- 
gistracy, who, about this period, evinced a high 
spirit in support of their privileges*, themselves 
applied to the throne, through their mayor, for 
martial law, as the only means of repressing 
the disorders ; — 2l clear proof that they appre- 
hended no danger from such a precedent. Eliza- 

* The instances in which the city^ ahout this time^ shewed its sjm- 
rit, were, 1st, In resisting a demand of bridge-money, by Sir J. 
Hawkins; and,- 2dly, In maintaining their privileges against an at- 
tempt by the court to interfere with the choice of their Recorder. 
Maitland's History of London, vol. i. p. 277, 270. 

VOL. I Q 



2j26 Il9TA0DUCTIOy« 

betb, at their request, granted the commisakui 
to Wilford; but he, apparently satisfied that it 
could not warrant the exercise of the illegal pawer 
tbat it verbally conferred, patrolled the streets with 
a band of armed followers, and, having secured 
five of the ringleaders, carried them before tibe 
justices for examination only. The justices com* 
mitted them for trial, and the ofiknders, having be^i 
regularly arraigned and convicted at Guild*Hall of 
high treason, suffered the punishment of their 
crimes *. Most assuredly the learned historian 
might have discovered an instance of a proceeding 
much more arbitrary than this, without travelling 
to a great distance, much less to Muscovy f ; and he 

* In the commiBsion to Wilford^ it is said, that '^ there hadbeen sim« 
dry great and unlawful assemblies of a number ctf base people, in riot- 
ous sort ; and that the punishment inflicted by the Star Chamber had 
failed, as such desperate people cared not for such punishment." Rym. 
Foed. vol. xvi. p. 279. See Maitland's Hist of Lond. toL i. p. d78; 
879. Stowe's Survey by Strype. Stowe's Annals, p. 769, 770. The 
same species of insurrection as happened on May-day in the time of 
Henry VIII. was apprehended firom the apprentices a few years be- 
fore. Mait. p. 271. 

t By 1st Greo. I. it is enacted, that if twelve persons assemble to the 
disturbance of the peace, and being commanded to disperse by pro- 
clamation of any justice of the peace, sherifif, under-sherifi^ or Mayor 
of a town, shall continue together for an hour afterwards, the contempt 
shall be felony, without benefit of clergy. Further, if the reading of 
the proclamation be by force opposed, or the reader in any manner 
wilfully hindered from reading it, such opposers and hinderers are fe^ 
Ions without benefit of clergy, and all persons to whom the proclama- 
tion ought to have been made, and who, knowing of the hinderanee, do 
not disperse, are likewise felons, without benefit of clergy* Black. 
Com. vol. i. p. 279. Yet, according to Mr. Hume's idea, the £nglish 
government then inclined too much to republicanism. We say no- 
thing of the measures adopted in. Ireland. 



INTRODUCTION. 22? 

mast have been ignor^it indeed oi the temper of 
theFren^ government, to which he was so much 
attached, not to kiiow that such disorders in that 
country would have immediately provoked the most 
sanguinary measqres. 

^«Tbe patent of High '^ Constable/' says Mr.^^^^^ 
flume, ** granted to Earl Rivers, by Edward IV. staWe and 
proves the nature of the office. The powers are ghJi. """ 
unlimited, perpetud, and remain in force during 
peace as well as during war and rebellion. The 
parliament in Edward IV.'s reign acknowledged 
the jurisdiction of the Constable and Marshal's 
court to be part of the law of the land." The ele- 
gant historian has not, in other respects, given a 
true picture of that age ; but, in this instance, he has 
outca^d the case to a most extravagant degree. 
The office of High Constable was hereditary, and 
ceased with Edward Duke of Buckingham, behead- 
ed on a charge of treason in the 12th of Hexuy 
Yin.* ; and as the Earl Marshall was, by some, 
supposed to have been the Constable's deputy, it 
was questioned whether one could be legally con- 
stituted to that office after the other ceased* Earls 
Mar^halls were, however, subsequently created, and 
the office was at times put into coitimission. But 
the judicial powers of the office extended only to 
the authority belonging to a Court of Chivalry, 
and were not permitted to interfere with the ad- 
ministration of justice in any thing which regard- 
ed the common law. 

* Hollinshed^ vol. ii. p. 865. See there a list of all the Hig^ Con- 
stables. Note by Selden to Fort. De Laud. Leg. Ang. No. 19. 



228 INTEODUCTION. 

The Steward and Marshall of the household 
had early attempted to extend their very limit-' 
ed jurisdiction, which related to contracts and 
trespasses within the verge of the Court ; and re- 
peated statutes repressed the usurpation * : but the 
High Constable and Marshall had exercised their 
powers with moderation, probably owing to the 
jealousy which the monarch must have entertained 
of an- hereditary office like the Constable's, till the 
time of Richard II. when the Commons complain- 
ed of a late encroachment from that quarter, upon 
the common law ; and, by the 8th of that king, c. 
2. these great officers were ordained toconfine them- 
selves within the ancient limits of their offices. This, 
however, did not repress the evil, and, therefore, 
by. the ISth of the same king, c 5. it was provided, 
" at the grievous complaint of the Commons, that 
the Court of Constable and Marshall hath encroach- 
ed, and daily doth encroach, contracts, covenants, 
trespasses, debts, and detinues, and many other 
actions pleadable at the common law, in great pre- 
judice of the king and of his Courts, and to the 
great grievance and oppression of the people,*' 
that this court should not interfere with any thing 
determinable i)y the common law j and declared, 
that its^ duty related exclusively " to contracts 
touching deeds of arms and of war out of the realm, 
and also of things that touch war within the realm, 
which could not be determined and discussed by the 



♦Artie. Sup. Cart. 5 Ed. II. c.26. 27 Ed. II. st,2. c. 5. 5 Ed. III. 
0.2. 10£d.III.c.l. 



INTRODUCTION. 229 

eommon law,'* &c. The law was never altered upon 
this subject, and it was not till the time of Edward 
IV. that the people had again reason to complain 
of the high constable, in consequence of the mon- 
strous patent granted by that prince, in the 7th of 
his reign, to his father in-law. Earl Rivers. But 
whoever calls to mind the state of public affairs at 
that period, convulsed, as the country was, with in- 
testine dissension, and enjoying only a respite from 
a ferocious civil war*, will never consider such a pa- 
tent, when the country was necessarily under a sort 
of military government, as affording any evidence 
of the constitutional principles of England, in con- 
tradiction to the united force of all other authori- 
ties. Sir Edward Coke pronounces it ** a most ir- 
regular precedent,*' and says that, ** therefore, by 
BO means the same, or the like, is to be drawn kito 
example t." But it is inconceivable how Mr. Hume 
should have adduced this as a proof of the tyranny 
of Elizabeth's time, when the office of High Con- 
stable had so long ceased. Had he consulted any 
authority whatever, for all authorities agree upon 
this point, he must at once have been satisfied of 
the error into which he had fallen. The na- 
ture of the Constable and Marshall's jurisdiction 
. is thus described by Lambard, whom we quotes 
because we have already seen how far he goes in 
support of the prerogative, and he dedicated his 



* Mr. Hume ought to hay^ remembered the old maxim^ Legei si" 
iefd inter arma, 
1 4 Inst p. 127. 



2S0 INTRODUCTION* 

work to Sir Robert Cecil, then Secretaiy c^ State ; 
" The Court of the Constable or Marshall of Eng* 
land determineth contracts touching deeds of arms 
out of the realm^ and handleth things coi^cerning 
war within the realm^ as combats, blazons, armoury, 
&c. but it may not deal with battle in appeals, 
nor, generally, with any other thing that may be 
tried by the laws of the land*." Crompton, Cam- 
den, Cotton, Coke, and others agree with Lamt- 
bard : As to the act of Edward VI. which, ac- 
cording to Mr. Hume, acknowledged the Consta- 
ble's and Marshall's jurisdiction to be part of the law 
of the land, it does not appear how such an enact- 
ment could afiect the present question, unless it 
had abrogated the statutes of Richard II., which, 
according to the highest authorities, Coke, Hale, 
&c. never wete annulled ; and surely the learned 
author must have CQmmitted some strange mistake, 
in quoting the 7th Edward VI. c. SO. for there is no 
such chapter^ and I have not been able to discover 
any statute during that reign applicable to the 
Court of Constable and Marshall t. It was during 
th^ reign of Charles, I, that a Court called the 

* Arch, p, 51. 

+ Foi-lescue De Laud. Leg. Ang. c. 82, with note by Selden, No. 
Id. Laifibard, p. SI. et seq. Coke's 1st Inst. p. 106, and 391. 
«li Inst. p. 51. 3d Inst. p. 26. 4th Inst. c. 17. Sir Edward remarks, 
that no addition can be made to the jurisdiction of any court, without 
an act of Parliament. Crompton's Jurisdic. of Courts, c. 5. See in 
Heame's Discourses of Antiquity, various treatises,— by Cambden, 
Cotton, Thinne, Plott, &c. Hawkins, in his Pleas of the Crown, refers 
to the Stat of Rich. II. as limiting the jiiriBdiction of the Constable and 
Marshall, b. ii. c. 4. "The jurisdiction of the Constable and Marshall," 
says Sir M^t. Hale, "is 8 Rich. II. c 2 und 13. c. 5, and not only by 



SCarsbaU's Court, was erected, which made such 
grievous encroachments upon the privileges of 
the people, that Lord Clarendon pronounces it " a 
monstrous, usurped jurisdiction*;" and, indeed, it 
was be, then Mr. Hyde, who moved for its abolition^ 
declaring it " a court newly erected, without colour, 
or shadow of law, which took upon itself to fine 
and imprison the king's subjects, and to give great 
damages for matters which the law gave no da- 
mages for *." 

these statutes^ but more by the common law is their jurisdiction limit-, 
ed. They are not to meddle with any thing determinable by common 
law." Hist, of the Common Law, vol. i. p. 52. Fleas of the Crown, 
Yol.i. p. 500. Mr. Hume has, in a note upon his history of Edward 
IV. referred to Spehnan's Glossary, verb. Coiustab. The account by 
Spelman is very imperfect, yet he says that the office, which had be- 
come grievous to the people, was regulated by the 13th Rich. II. ; but 
that the statute had been disregarded in the patent to Earl Rivers. 
See Reeves' Hist, of the English Law, vol. iii. p. 196. edit. 1787. Some 
account is also given of the Admiral's jurisdiction, which was strictly 
defined. One of the charges against Rich. II. art. 26. was, that, '^ con- 
trary to the great charter, he had caused divers lusty men to appeal divers 
old men, upon matters determinable at the common law in the Court 
Martial, because in that court is no trial but only by battle, whereby the 
said old inen, fearing the sequel of the matter, submitted to his mercy, 
whom he fined, and ransomed unreasonably." Hayward, p. 201. The 
only other authority referred to by Mr. Hume, is Sir John Davies' work 
on impositions — a book written to ingratiate himself with King James ; 
but, however the author prostituted his talents in other respects, there 
is nothing there to support Mr. Hume's statement. He merely says, 
*' that part of the law of nations whereby the High Constable and 
Marshall of England do proceed in their courts of war and chievalry, 
lis called the law of the land," p. 9 ; a point undoubted. Harl. MS. 
No. 305. Cotton, Jul. t. vi. No. 41, Brit. Mus. This last is a patent 
by James I. putting the office into commission, and distinctly shews 
that its powers were limited to questions about coats of arms, &c. 
* Clarendon's Life by himself, vol. i. p. 37, (or in Oct. 72,) &c. 



dSC INTRODUCTION. 

impriacm. " There was," continues Mr* Hume, " a grie- 
!^mf of ^^"* punishment very generally inflicted in that 
a Secretary age, without any other authority than the warrant 
ofthePrivyof a Secretary of state, or of the Privy Councilr 
CounciL ^^^ ^j^^^ ^g^g imprisonment in any jail, and during 

any time, that the ministers should think proper. 
In suspicious times, all the jails were full of pri- 
soners of state ; and these unhappy victims of pub- 
He jealousy, were sometimes thrown into dun- 
geons, and loaded with irons, and treated in the 
most cruel manner, without their being able to 
obtain any remedy from law. This practice was 
an indire^Jt way of employing the rack.*' It is 
very unfortunate that the learned author has not 
thought proper to adduce some instances of this 
atrocious proceeding, and of justice haying been 
denied by courts of law ; For the English, regard- 
ing imprisonment as torture and civil death, wa^e 
ever jealous of their personal liberty *, and had 
provided many statutes besides magna charta, to 
secure themselves from that evil. To such a 
degree did they carry their apprehensions of any 
encroachment of prerogative against their personal 
rights in this respect, that, after the defeat of the 
Spanish armada, the commons petitioned for leave 
to bring in a bill of indemnity for the illegal im- 
prisonment of some Catholics on that momentous 
occasion ; and, during Elizabeth's time, as well as 
during that of her predecessors, the judges liber- 

* See the debates on this subject in 1627. Rush. vol. i. Frank- 
lyn's Annals* Pari, i^ist. Coke's 2d Inst. p. 54; 4th Inst. p. 182. 



ated individuals who had been imprisoned by the 
express command of the sovereign and council. 
In the 34th of Elizabeth, certain great men, hav- 
ing been offended at the liberation of some prison- 
ers, procured a command to the judges not to pro* 
ceed ; but that venerable body continued to dis*^ 
charge their duty, by setting the prisoners at liber« 
ty in the face of this order* ; and having been de« 
sired to specify in << what cases a person sent to 
custody by her majesty, or her council, some one 
or two of them, is to be detained in prison, and 
not to be delivered by her majesty's court or 
judges,'^ they gave it as their opinion, (which 
they delivered in writing to the chancellor and 
treasurer) « that if any person be committed 
by her majesty's command, from her person, or 
by order from the council board, or if any one 
or two of her council commit one for high trea- 
son, such persons so in the cases before com- 
mitted, may not be deliveried without due trial by 

* Anderson's Reports^ p. 297^ et seq. At that time a crying griey«- 
ance existed — that of individuals heing confined hy order of privy<« 
couhdllors and noblemen^ to gratify resentment^ or promote their 
own unjust schemes ; but the judges exerted themselves to put a pe- 
riod to such intolerable oppression^ and never failed to release the 
confined who applied to them. Their exertions^ however^ were in- 
effectual^ as these wretched men^ having been liberated from one pri« 
son^ were frequently hurried away to some secret place of confine-* 
ment, and the judges represented the matter to the throne. Mr*. 
Hume (p. 465.) has adduced this as a proof of the despotism of the go* 
▼emment ; but^ surely^ with small reason^ for it arose from the bad- 
ness of the police and power of the aristocracy^ and the weakness of 
the executive. If privy councillors had possessed the power of com« 
mitment without assigning the cause> the judges could not have in- 
terposed. 



S^ XNTBODUCTIOK. 

the law, and judgment of acquittal had. Never- 
theless the judges may award the queen's writ to 
bring the bodies of such persons before them, and, 
if upon return thereof, the causes of the commbnent 
be certified to the judges, as it ought to be, then the 
judges, in the cases before, ought not to deliver 
him, but to remand the prisoner to the place from 
whence he came, which cannot conveniently be 
done unless notice of the cause in generality or 
else specially be given to the keeper or goaler that 
shall have the custody of such a prisoner *•" Thus 



* I quote from Chief Justice Andcf son's Reports^ p. ^98, as the words 
differ there a little from the copy m Rushworth and Franklyii^ said, to 
have been taken from this judge's reports^ then in manuscript. The 
reader will not he of opinion that Mr. Himie was authorised by these 
words to say that the judges expressly declared^ that a person sent to 
custody by the queen in her council was not bailable. Indeed the 
opinion was in vindication of the release of prisoners against an ex- 
press order from the court; and the same principle was, subsequently, 
acted tqwn. See Selden's argument in 16S8. Franklyn, p. 267> whole 
q»eeeh, with the cases, &e. from p. 264 to 280. In ie27. Judge 
Whitelock defended his own conduct and that of his brethren for re- 
fusii^ the release of certain gentlemen imjn'isoned about loan-money, 
by saymg that they had determined nothing, &c. and, says he, " it 
appears in Dyer, 2 Eliz. that divers gentlemen being committed, and 
requiring habeas corpus, some were bailed, others remitted, whereby 
it appears much is left to the discretion of the judges.'* This is in 
support of our text* The judge proceeds to state, that he " never saw 
nor knew of any record, that upon such a return as this" (a special 
commitment) '^ a man was bailed, the kiitg r^t first consulied with" 
Id. 249 — 250. Rush. vol. i. p. 510. The opinion of the judges in the 
34th of Elizabeth, had, in the case alluded to, been misrepresented, 
and Selden produced Chief Justice Anderson's report of it to the 
House, " which," said he, '^ will contradict all those apocrypha re- 
ports that go upon the case." Frank, p. 250. When the cases in fa- 
vour of the liberty of the subject, in this respect, were cited in 1628, 
not a precedent on the other side could be adduced. Rush. vol. i. 



INTRODUCTIOH. 235 

the power of the queen and her council to impri* 
son at will was denied, for the cause must be cer* 
tified^ as well as be one which it is the object of 
government to bring to a trial. The opinion is ill 
expressed; but it would ^pear that the words 
^* high treason/' as the cause of commitment, ap 
plied to all the cases of custody as well as to the 
last; and it will be observed, that the question put 
to the judges was not, whether the queen and her 
council could imprison at pleasure, but in what 
cases the commitment was good? and that they 
asserted their right to grant a habeas corpus, that 
the cause might be ascertained. The construe^ 
tion put upon the opinion appiears to be fully war- 
ranted, not only by the case to which it referred* 
as well as an after case in that reign, but by the 
use which was made of it in the year 16^7; 
for Coke and Selden quoted it as decisive against 
the right to commit without assigning the cause* 
then claimed by the crown, and the lawyers, on 
the other side, did not oppose what was said, while 
tbey could not adduce a single precedent in sup- 
port of the principle for which they had con- 
tended. 

Had such a power been exercised by Elizabeth, 
it would have been such a flagrant violation of law 

p. £35. Selden chiefly managed the argument as to the book cases^ but 
Sir Edward Coke also spoke upon the subject^ and^ after arguing the 
point on legal principles^ he took occasion to add four book cases and 
authorities all in pointy sayings '^ that if the learned counsel on the 
other side could produce but one against the liberties so pat and per- 
tinent^ oh how they could hug and cull it/' lb. See also Harl. MS. 

Brit Mus. No. 37. Coke's 2d Inst. &^, 615. 4 Inst. p. 71. 1S9. 

5 



tortimk 



436 IKTHODUCTIOK. 

as could not be too soon repressed ; and sabmis- 
sion to it could only have been attributed to the ex- 
traordinary situation in which she was placed. 
The use of ** But/^ says Mr. Hume, << the rack itself, though 
not admitted in the ordinary administration of 
justice, was frequently used, upon any suspicion, 
by authority of a warrant from a secretary of state." 
Torture has, at all times, been abhorrent to the 
feelings of Englishmen, and unknown to the laws 
of that country. Sir John Fortescue who, as we 
formerly observed, sat long as chief justice under 
Henry VI. and was afterwards nominated chancd- 
lor, founds his panegyric on the English laws, part- 
ly upon their being uncontaminated with this hor^ 
rid practice, a practice which, he justly remarked^ 
ought not to be accounted law, but rather the high 
way to the devil, but which was yet common in 
France and other countries where the civil code 
obtained *• Sir Thomas Smith, who held the of- 
fice of secretary of state both under Edward VI. 
and Elizabeth, and who wrote his work, with much 
the same view as Fortescue — ^to contrast the free 
government of his native country with that of sur- 
rounding states— ^likewise expresses abhorrence at 
such a practice, and congratulates England on its 
being free from it t. Harrison, a popular writer 
of Elizabeth's time, takes the same view t. Sir 
Edward Coke expresses his abhorrence of torture 

* De Laud. Leg. Aug. 6. 46. 
t Commonwealth^ b. ii. c. S7. 

% Harrison on tliis pointy iFollows Sir Thomas Smith very doselj. 
P. 184. b. ii. c. 11. 



INTAaDCrCTIOK. f37 

in the strongest termd> dedarhig that there is no 
law to warrant it. *' And/' says he, " the poet in 
describing the iniquity of Radamanthus, that cruei 
judge of Hell, saith, 

(kuHgatque, audiique dolo§, sMgitquefaUri. 

First, he punished before he heard, and when he 
had heard his denial, he compelled the party 
accused, by torture, to confess it." He then 
shews that this is not only against the law of God« 
but against Magna Charta; and proceeds thus: 
*^ Accordingly, all the said ancient authors are 
against any pain or torment to be put or inflicted 
upon the prisoner before attainder, nor after at^ 
tainder, but according to the judgment. And 
there is no one opinion in our books, or judicial 
record (that we have seen and remember) for the 
maintenance of tortures, torments," &c *. " The 
trial by rack," says Blackstone, " is utterly un- 
known to the law of England ; though once^ when 
the Dukes of Exeter and Suffolk, and other mi- 
nisters of Henry VI. had laid a design to introduce 
the civil law into this kingdom, as the rule of go- 
vernment, for a beginning thereoti they erected a 
rack for torture ; which was called, in derision, the 
Duke of Exeter's daughter, and still remains in the 
Tower of London, where it was occasionally used 
as an engine of state, not of law, more than once 
in the reign of Queen Elizabeth t." Nothing caa 

* 3d Inst. p. 35. 

f Blackstone's Comnientadeti, voL iv. p. 32$. 



3S8 IHTBODUCTIOK* 

justify a resort to imy ttiiog so horrid ; but tbe 
conspiracies of Papists were endlessj qb w/^ll ^ of 
the most aiammig kind, and meii, under the in- 
fluence of fear, are generally cruel, w^iie the party 
who support administration, are too apt not to con- 
demn an illegal act whidi strikes at enemies of 
whom they live in constant alarm. During Eliza- 
beth's reign, some Catholics, believed to be en- 
gaged in the deepest treason, were put to the rack 
to extort confession j but the circumstance raised 
such a clamour against the government, that, in 
1583, Burghley himself wrote and published a vin- 
dication of it, in which he states that the Popish 
party had exaggerated the matter beyond all 
bounds 'y that very few had been racked, and these 
very gently; and " that none of them had bene put 
to the racke or torture, no not for the matters of tre- 
son, or partnership of treason, or such like, but where 
it was first known and evidently probable by former 
detections, confessions, and otherwise, that the 
party so racked was guylty, and did knowe, and 
coulde deliver trueth of the things wherewith he 
was charged j so as it was first assured, that no in- 
nocent was, at any time, tormented, and the racke 
was never used to wring out confessions at adven- 
ture upon uncertainties, in which doing, it might 
bee possible that an innocent in that case might 
have bene racked *.'* The excuse is a sorry one, 

* Scott's Somers' Tracts^ vol. i. p. 211. Tbe puper is entitled, 
" A Declaration of the favourable Dealing of her Mtgestie's Commis- 
sioners, appointed for the examination of certaine Traytours, and of 
Tortures imjustly reported to be done upon them for matter of Reli- 
gion, 1583, by Lord Burghley." P. 209, et seq. 



but it pr0ves the real feelings of the age; and, 
though the period of poMication was a critical 
juncture, jj^izabeth herself <jrdered the practice to 
be forborn*. It was again employed after the Re- 
volution, in tiie time of William III. to extort con- 
fession from a state delinquent^ ; yet who will say 
that it was net at that time as repugnaiit to the 
feeMngs of Englishnten as to their laws ? 

" fiven the council in the marches of Wales was 
empowered, by their very commission, to ma^e 
use of torture whenever they thought proper*** 
Now, with regai'd to this, it is only necessary to 
remark, that this commission was issued by Queen 
Maryt, a princess whose reign ought not to be 
quoted ; that, at all events, Wales did not fully en- 
joy the administration of the English laws, as by 
34 Henry VIII. cap. 26. the president and council 
were empowered to execute justice according to 
their discretion H; and that, such was the state of 
society in that principaMty, even in the time <i£ 
Hudson, who wrote either towards the close of 
James's reign or in that of Charles, that there was 

* Camden^ p. 497. Books were piibliBhed about ihi» tiine^ in 
whidi the Queen's gentlewomen were exhorted to unitate against her 
the conduct of Judith to Holofemes. Ibid. Elizabeth always de- 
clared against forcing the consciences of men. Id. p. 487. The 
Popish priests heid^ that whatsoever was done by the Queen's author 
ity after the publication of the bull by Pius V. was null, both by 
the laws of God and man^ and that there was no lawful magistrate in 
England. Ibid. 

f Scott's Somers' Tracts^ vol. L p. 309. Note prefixed by the Edi- 
tor. 

j: Haynes, p. 196. The Instructions were issued in 1553. 

y 4th Inst. p. 342. 



240 INTRODUCTION* 

no possibility of obtaining a rej^ular conviction 
there of any man of a certain rank *• 

<< There cannot be/' continues the historian^ 
<< a stronger proof how lightly the rack was em- 
ployed» than the following story told by Lord 
Bacon. We shall give it in his own words. '< The 
Queen was mightily incensed against Hayward, 
on account of a book dedicated to Lord £ssex, 
being a story of the first year of Henry IV. think* 
ing it a seditious preclude to put into the people's 
heads boldness and faction. She said she had an 
opinion that there was treason in it, and asked me 
if I could not find any places in it that might be 
drawn within the case of treason ? Whereunto I 
answered, For treason, sure I found none; but 
for felony very mauy : And when her majesty 
hastily asked me, wherein ? I told her, the author 
had committed very apparent thefl ; for he had 
taken most of the sentences of Cornelius Tacitus, 
and translated them into English, and put them 
into his text. And another time, when the Queen 
could not be persuaded that it was his writing 
whose name was to it, but that it had some more 
mischievous author, and said, with great indigna- 
tion, that she would have him racked to produce 
his author. I replied, nay, madam, he is a doctor, 
never rack his person, but rack his style: Let 
him have pen, ink, and paper, and help of books, 
and be enjoined to continue the story where it 
breaketh ofl^ and I will undertake, by collating 

* Hudson^ p. 14; 



iNtiiobucTioN. 241 

the styles^ to judge whether he were the author 
or not/' Thus, had it not been for Bacon's hu- 
manity, ot rather bift wit, this author, a man of 
letters, had been put to the rack for a most inno« 
cent performance. His real offeAce was, dedicat- 
ing a book to that munificent patron of the learn- 
ed, the Earl of Essex, at a time when that noble- 
tnan lay under het majesty's displeasure." Essex, 
once the great favourite of Elizabeth, had fallen 
into disgrace, and from his popularity had become 
an object of jealousy. At this juncture. Doctor, 
afterwards Sir John, Hayward, published his his- 
tory of the early part of the reign of Henry IV. 
in which he treats almost exclusively of the misr 
conduct and deposition of Richard II. uttering 
Sentiments on so delicate a point, bold enough to 
startle princes, and dedicated the work to Essex, 
whom he addressed in these words : ** magnus si^ 
qvidem e$, et presenHJudicio et futuri temporis ex- 
pectatiorte •.*' No wonder that Elizabeth was of- 

* Mr. Hume says^ in a note> '^ To our a{»prehensi<in> Hayward't 
book seems ratiher to have a contrary tendency* For he has preaerv- 
^ the fiimoaa speech of the bishop of Carlisle^ which contains^ in 
the most express tetms, the doctrine of passive obedience. But 
Qoeen EKsabeth n^as very difficult to please On this head." I oob- 
dnde from this, that the learned auihoi* had never read Hayward's 
work; for the sentiibents are of a terjr difibrent description from 
What he supposed. It is true th&t the bishop of Carlisle's speecih is 
pteserved^ and the history Would hftvfe beBi incomplete without it ; 
aay^ it is also true, that Hayward appears to condemn the deposing of 
Richaid. But the boldest opinions are fo be met with in almost 
every j^age; and, since Mr. Hume has alluded to the bishop of 
Carlisle'a speech, 6f which he himself gives a high diarader in 
V. iiL page 43, we shall give an ettract from another in the lame 
production; being part of Thomaa Amndd, aichbiidiopof hunter- 

VOL. I. R 



S4jS introduction. 

fended ; and, though Mr. Hume lias ascribed her 
resentment solely to the dedication, all cotempc^ 
rary authorities attribute it to the sentiments as 
well as to the dedication, which was particularly 
offensive, from the ambitious designs imputed to 
Essex, and from another work, questioning her 
title, having been dedicated to the same noble- 
man ♦. It must be admitted, however, that 
there is a wide difference between the use, and 
the execution, of a violent threat, pronounced 
in a moment of irritation, and therefore much 



bury's^ when he instigated the Duke of Hereford to aspire to the 
GTOWB. '^ Onr ancestors lived in the highest pitch and perfection of 
Hberty> but we of seryiHty> being in the nature not of subjects^ but 
of abjects and flat slaTes." After depicting the tyranny of Riehard, 
he says, " the attainment of the kingdom must now be a sanctuary 
and repose for us both. The like examples are not rare (as you af- 
firm) not long since put in practice, nor far hence to be fetched. Tho 
kings of Denmark and of Swedeland are oftentimes banished by 
their subjects, oftentimes imprisoned, and put to their fine. The 
princes of Grermany, about a hundred years past, deposed Adolphus 
their emperor, and are now in hand to depose their emperor Winceslaus. 
The tarl ni Flanders was, a while since, driven out of his dominions 
by his own people, for usurping greater power than appertained to his 
estate. The ancient Britain& chased away their own king Carecius, 
for the lewdness of his life and cruelty of his rule. In the time of 
the Saxon heptarchy, Bernredus, king of Mercia, for his pride and 
stoutness towards his people, waa by them depofsed. Likewise Aldr^ 
dus and Ethelbertu^, kings of Northumberland, were, for their dis- 
orders, expelled by their subjects. Since the victory of the Normans, 
ihe Lords endeavoured to expell King Henry III. but they were not 
able. Yet were they able to depose king Edward the Second, and 
to constitute his young son Edward king in his stead. These are 
not all> and yet enough to clear this action of rareness in other coun- 
tries, and novdity in ours. The difficulty indeed is somewhat, be- 
cause the excellency is great." P. 14S, 143. 
* JKr<ib'a M&m»ixkf ydl 1. p. 3ia. See also vol. ii. p*. 439^—447. 



INTAOOUCTIQir* 343 

weight cannot be given to her threat of putting 
Hayward to the rack. Indeed, it appears that 
she did not soon drop her resentment^; and there- 
fore we cannot admit that her rage was diverted 
by Bacon's wit, 

Mn Hume farther remarks, ^* that the Queen's 
Hienace of trying and punishing Hayward for trea- 
son could easily have been executed, let his work 
have been ever so innocent. While so many terrors 
hung over the people, no jury durst have acquitted 
a man, when the court was resolved to have him 
condemned*" He then makes a remark about wit- 
nesses not being confronted with the prisoner; 
declares that scarcdy an instance occurred during 
all these reigns of the sovereign or the ministers 
having been disappointed in th$ issue of a pro- 
secution, and proceeds thus : << Timid juries^ 
and judges, who held their offices during plea- 
sure, never fidled to second all the views of the 
crown. And as the practice was anciently com- 
mon, of 6ning, imprisoning, or otherwise punish- 
ing the jurors, merely at the discretipn of the 
court, for finding a verdict contrary to the direction 
<^ these dependent judges ; it is obvious that juries 
were then no manner of security to the liberty of 
the subject/' In this there is some trutb mixed up 

f Camden's AxmaL p. S68. It was held by Uie lawyers^ that the 
work was written with the object of encouraging the peqple to depose 
the Qoeen. Sir G. Merrick^ one of Essex's party^ was^ in' 1601^ charged 
amoDgst other things^ certainly overt acts of treason^ with having 
caused sn oheoleto tragedy of the deposiBg of Bichard 11. to be pub* 
lidy acted at his own charge^ for the entertainment of the conspir-* 
ators. lb. 

1 



244 INtfiODUCTIOI^; 

with much gratuitous assumption. In the firiK 
place, the Queen made no menace of trying 
Hayward for treason, though she evinced great 
anxiety to have the .case brought within the 
compass of treason — 2l fact, which goes of itself 
far to negative all the historian's unqualified 
account of the state of the government, par- 
ticularly about the judges, who, by the way, 
did not, as we have already observed, hold their 
places during pleasure, but during good beha« 
viour. The juries, too, though occasionally sum- 
moned into the Star-Chamber for their verdict^ 
were not reduced to such a deplorable condi- 
tion as the historian imagined. But, in the next 
place, we may observe that the judges display^ 
ed an integrity in Elizabeth's time, which forms 
a strong contrast with the conduct of the sworn 
guardians of the law during the two succeeding 
reigns. Elizabeth's judges put a check upon the 
proceedings of the High Commission, and, in spite 
of the interest which was used to have the indivi- 
dual condemned who killed the pursuivant that 
attempted to enter his house by virtue of a war^ 
rant from the commissioners, they dismissed him 
from the bar, as having only vindicated the rights 
of an Englishman. They asserted the privileges 
of the people in regard to illegal imprisonments ; 
and they declined to sanction, by their opinion, an 
imposition laid upon merchandise without an act 
of parliament. The following circumstance, too, 
is in point : One Bloss had affirmed that King Ed- 
ward was alivcf and that Elizabeth was not only 



ments. 



INTRODUCTION^ 245 

married to the Earl of Leicester, but had born four 
children to that nobleman. Ministers were eager 
to chastise him ; but having found that there was 
no statute which authorised his punishment, they 
instantly set him at liberty *. 

" The power of pressing both for sea and land impress. 
service," continues the historian, " and obliging 
any person to accept of any office, however mean 
or unfit for him, was another prerogative totally in- 
compatible with freedom. Osborne gives the fol- 
lowing account of Elizabeth's method of employ- 
ing this prerogative : <' In case she found any like- 
ly to interrupt her occassions, she did seasonably 
prevent him by a chargable employment abroad, or 
putting him upon some service at home, least grate- 
ful to the people ; contrary to a false maxim since 
practised with far worse success, by such princes 
as thought it better husbandry to buy off enemies 
than reward friends." — " The practice," says Mr. 
Hume, " with which Osborne reproaches the two 
immediate successors oi Elizabeth, proceeded part- 
ly from the extreme difficulty of their situation, 
partly frona the greater lenity of their disposi- 
tions." Legally no one could be sent out of the 
kingdom against his will t ^ and though every man 
was bound by law to provide himself with arms 
according to his quality, for the public defence, 
he was not bound, except in a case of invasion, 
to go beyond his owi^ shire t. But every thing ip 

* Strype's Annals, vol. ii. p. 240, 241. 
f Second Inst. p. 47, 48. 

X I Edward III. St. 2. c. 6. 4 Henry IV. c 13. Prynne's Humble 
Remonstrance against the Tax of Ship-money, p. 11. 



246 INTRODUCTION. 

liable to abuse^ people of influence in the state 
being too apt to overiook oppression which does not 
touch themselves ; and labourers and artificens were 
pressed for sea as well as land service^ and sent out 
of the kingdom* ; but no instance, so far as I know, is 



* In ancient times^ ^^ knights or gentlemen expert an wikr^ and of 
great revenuee and lirelihood in their ootintry^ covenanted yiMi the 
king to serre him in his war, for such a tinie^ with mieh a ftimher of 
men: and the soldiers made their covenant with their leaders or 
maaters, and then they were mustered before the king^s commission- 
ers^ and entered of record hekfte them ; and that was certlfled into 
.the Exchequer^ and thereupon they took.thdr wages of the king^ as 
it appeareth by many precedents of the exchequer, and may be ga'- 
thered by the preamble and body of the act, (5 Richard II. c. II.) 
See" Coke's dd Inst. p. 86. c. 96. This also appears by 1 Henry 
VI. c. 6. in regard to the soldiers of Henry V. by 18 Hemry VI. 
c*. 18. and 19. 7 Henry VII. e. 1. 3 Henry VIII. c. 5. This fell into 
desuetude, and pressing commenced. The fkct appears to have been, 
that andeittly men were raised by the influence of the aristocracy ; 
and that this influence, tog^er with the nvmber of the unemployed, 
gave subsequently rise to impressments, whidi were never legaL 
Sir Edward Coke informs us, (lb.) that those only could be lawfully 
conveyed out of the kingdom, as soldiers, who received tbe king's 
press-money, which I presume was a bounty for each service. But 
it is plain, that after men were enrolled, they would require very lit- 
tle inducement to go abroad. 

Mr. Hume says, that " when any levies were made for Irehmd, 
France, or the low countries, the Qaeen obliged the counties to levy 
the soldiers, to arm and clothe them, and cury them to the sea-ports 
at their own charge." I am not prepared to contradict this : but I 
wish that the learned writer had given his authorities for such an as- 
sertion, for I am not at present awure of the existence of such a prac- 
tice in Elizabeth's reign, and, if such there were, it was directly 
against law. Such a thing had been done in the time of Edward II. 
a prince dethroned for alleged misgovemment; but by 1 Edward III. 
Stat. 2. c. 7. it was repressed. This statute was oonflrmed by 4 Hen- 
ry IV. c. 13. The dty of London in 15^8 levied ten thousand men, 
whom they armed and dothed; and they afterwards likewise raised 
another thousand : but these appear to have been voluntary acts, in 



INTRODUCTION. ^4? 

adduced* of individuals of higher rank having been 
impressed, under the Tudors, except the famous 
one of Alderman Read, in the time of Henry VIII., 
&r refusing a. benevolence^^ an act generally con- 
demned a;& tyrannical* Had such cases occurred, 
hoirever, under Elizabeth, as the persons must 
have been men of note to interrupt her occasions, 
they would, doubtless, have been handed down to 
us.— ^With regard to the assertion of Osborne*, 
un vouched by contemporary, or any authority, it 
is little to be regarded. A writer o£ the present 
age, of no great ability like Osborne, who should 
make a general assertion of what had happened 
fifty or a hundred years back, would not be 
thought entitled to much credit ; and, luckfly, the 
accuracy of this author, in regard to Elizabeth's 
reign, can be broqght to the test. In some sen*- 
tences immediately preceding the passage quot* 
ed by Mr. Hume, Osborne says, that Elizabeth 
called parliaments often, and that ^^ it was not 
the guise of those times to dissolve them in discon- 
tent, but to adjourne them in love/' " And," 
says he, ^^ it is no less remarkable, that,^ in so long 
a reign, she was never forced, as X have heard, to 
make use of her negative power, but had still 

the same manner as tl^eir fitting out of sfaipi a^nst the armada wafe. 
Maitland's Hist. p. S73. et seq. 

At the time of the northern rebellion too^ the shires raised men. 
Haynes. 3ut then inyasion Was apprehended^ and in the Ane of re* 
l)ellion^ all the Protestant party were too ^alous to stand upon legal 
rights. 

* Osborne died in 1659. He was originally a courtier in tiie time 
of James I. and Charles ; he afterwards bec$ime a p^trliamept^miiQ^ 
))ut rose \/o no distinction. 



£48 I14T&0DUCTI0V. 

such a party in the House of Lords as were 
able to save her from that trouble ^/* Now^ 
it may be observed, that this alleged good cor- 
respondence with her parliaments, is not altOi* 
gether consentaneous to the idea of her having 
sent leading men, from whom she dreaded opposi- 
tion, upon expensive employments abroad; but 
the statement is incorrect, for, on one occasion, 
she sharply rebuked the commons on dissolving 
them. And with regard to her never having been 
forced to make use of her n^^tive power, it is 
only necessary to state, that, in the 39th c^ her 
reign, she refused no less than forty^eight several 
bills which had passed both houses t. But it is 
indeed extraordinary to find both Osborne and 
Hume giving so different a character to the go- 
vernment of Elizabeth's two next successors, (Os- 
borne's Qiay, partly, be ascribed to the general inr 
dignation excited by the favour shewn to Wente 
worth, afterwards Earl of Strafford, for becoming 
a creature of the court,) since it could not be un- 
known to them, that, in the year 1621, some of 
the most distinguished members of the commons 
were sent abroad by James on the most frivolous 
pretences, because they dijscharged their duty in 
parliament ; that, in the year 1623, a citizen of 
London was, by the same monarch, ordered to 
carry a dispatch to Ireland, because he refused to 
compjijr with a demand of a benevolence^ a spe- 
cies of impositipn never attempted by Elizabeth t j 

 Osborac, p. S89^ and S91. f D'Ewes, p. 596, 

} Rush. vol.i.' 



INTRODUCTION. 249 

and that Charles I. carried his tyranny in this re- 
elect to the most odious height. 

The historian has justly observed, that men of 
inferior rank often abused the power of pressing, 
as officers frequently exacted money for freeing 
persons from the service. But, however great the 
grievance was, and it, undoubtedly, was an enor- 
mous one, it may fairly be questioned whether it 
ought not rather to be ascribed to the state of so- 
ciety, than to the uncontrolled power of the crown. 
ITie only instance given by Mr. Hume, proves 
Ae readiness of the Queen to affiird redress to the 
suferers the instant the fact reached her ears. 

Forced loans and benevolences arp, by Mr.Foite* 
Hume, numbered amongst the arbitrary engines'**"' 
of government possessed by Elizabeth, though 
that princess never attempted the fatter illegal 
mode of raising money. Forced loans were as 
directly against the principles of the constitution 
as any tax without the assent of the legislature. 
But the evil could not be so easily repressed, 
since, while the request of a prince, especially in 
disorderly times, is too apt to degenerate into a 
demand, the illegality of the measure was shelter- 
ed under that pretext; and people, in general, 
were not likely to dispute the request to lend 
small sums for a short time, though they lost the 
interest upon the ground then current, and es- 
tebhshed by law, that it was unjust to take any 
thing for the use of barren money. The lender 
however, could not recover his money by any legal 
process, and a dishonourable prince might defraud 



250 INTRODUCTION. 

him : Accordingly, this formed one of the chaises 
against Richard II., and Parliament generou^ 
liberated Henry VIII. from repayment of his 
loans, which however might be borrowed at inter* 
edt. Elisabeth frequently borrowed large sums oi 
money at the enormous rate of 14 per oent« ; and^ 
as while she borrowed at such a charge^ she ap«- 
pears to have applied only twice (Mr. Hume 
says often) to her subjects^ on the tnost moment* 
tons occasions too, and for a short period, for 
loans in an irregular way> we may safely conclude 
thati had it beto carried farther, the temper of the 
kingdom could not have submitted to the griev*^ 
ance. The first occasion on which Elizabeth re- 
sorted to this mode of raising money, was upon 
the northern rebellion t And it will be perceived 
from the warranti a copy of which is to be found 
in Haynes' collection^ that it is in the form of 
a request^ and that the lenders are assured of 
repayment within twelve months. The measure 
was justified on the principle of necessity^ as 
treasure *^ now withowt Parliament, cannot be 
had but by way of lone,'' and it was daid that 
<< the Prince is not here the borrower, but God 
and our naturall cuntry." Tlie influence of the 
crown, in the country, was, at this time^ very 
great, in consequence of the number that had 
obtained a share of the church lands; and the 
request does not appear to have encountered 
opposition there amongst the higher ranks, whil^ 
says Mr. Bertie, in a letter to Secretary Cecil, " the 
perverse in this" (the lower) *• rancke, shall be, 
by shame, constreyned to contribute with their 



INTltODUCTIOy. 251 

goods V At the year's end, the Queen was 
not, owing to the great expense incurred, in a 
condition to repay the money, and therefore^ 
she thus instructed the collectors, ^< to use all 
good meanes, ether by your letters, or by your 
conference with the partyes that have so lent 
to us any monny, as for the reasons above itoyd, 
and at our request they will be content to forbear^ 
the demand of their monny from the daye the 
^me is, or shall be due, for the space of seven 
monthes ; at which tyme, or before, you may assure 
to them an undoubted payement, for so we have ful- 
ly determyned by advise of our counsell to perform 
the same." She concludes by saying, that, «* as the 
lenders had given her cause to think well of them 
by their readiness to lend, she hoped they would 
give her reason to increase her good opinion, by 
fwbearing their demand according to her re^ 
quest t." This was the identical loan which gave 
occasion to the historian for the following state- 
ment : " Their remains a proposal made by Lord 
Burleigh for levying a general loan on the people, 
equivalent to a subsidy; a scheme which would have 
laid the burthen more equally, but which was, in dif- 
ferent words, a taxation imposed without consent 
of pariiamenti'' Now, there is no farther proposal 
in the case, than an order for letters of privy seal. 
Yet the elegant author referred to, compares this, 
which he says was ** proposed mthout any visible ne- 
cessiti/** to the imposition of a sixth part of men's 
goods, attempted by Henry VIIL, which, enor- 

• Haynes, p. 418, 519. t MiUden, p. 181. 



252 INTRODUCTION. 

mous in itself, was not even to be repaid, and to 
the after exactions of Charles I., who was, says 
the historian, ** enraged by ill usage from his 
parliament.'^ But wb^t sets this in a different 
light is, that, though the Queen succeeded in 
the counties, wberje there was less public spirit, and 
greater court influence, sh^e failed in th^ metropo- 
lis; for the citizens refused to lend, apd she bor- 
rowed ^16,000, at the rate of six per cent, fop six 
months, or 12 per cent, per annum, granting at the 
same time a discharge from the statute of usury. 
At the end of the si:^ months she was unable to 
refund the money, find prolonged the term of 
payment for other $i:^ months, with six per cent. 
;more, jbesides brpkage* It jis c.qrioif s too, that ^r. 
^uixie elsewhere s|:ates the fact of her having 
borrowed frona the city, through the influence of 
Sir Thomas Gresham, and yet that he totally over- 
looked the date of the loan, as well as the refuta* 
tion which it carried with it of his own sUtement, 
since, if Elizabeth could have borrowed without 
interest, she would not have paid for the loan at 
so enormous a rate *. The other loan raised by 



 Stew's Survey by Strype, vol. i. p. gS3. The first writs to tlie 
citizeiui were for twelve mpnths, and J presume without injterest, as 
there is no mention of it. Haynes. Stow^ while be specifies the rate 
of interest on the loan of 1669, does not distinctly give us to un^ 
derstand that interest was not paid in 15S8; but from the oppoeitiim 
the loata met with I suspect i^ In 16S9 she borrowed £l6fOOQ at 
ten per oent.^ but that could npt in any view be called oompuLMvy. 
Stow gives a list of loans by the city. The first he mentions was to 
Edward III. when he had resolved on an expedition to France, and 
had obtained a tax to enable him to undertake the expedition. The 
citizens lent 20,000 marks, which were to be repaid out of the 



iNTKOT>uctraN; 258 

Elizabeth, was immediately aftef the defeat of 
the Spanish armada, when vigorous preparatioti^t 
were still deemed requisite against any after at* 
tempt : then it was that the mayor of London 
officiously imprisoned some citizens for refusing to 
lend *. But the season was fit for an illegal pto^ 
ceeding: From the extraordinary charges to 
which the governn^ent had been put, and the 
treasure still requisite, necessity seemed to justify 
such a loan, while the victorious triumph over the 
Spaniards threw the irregularity of the means em^^ 
ployed to compass the object, into the shade. 

" The demand of benevolence,** says Mr. HumeiB«»e^oicnce6. 
** was another invention of that age for taxing 
the people. This practice was so little conieeiv* 
ed to be irregular, that the Commons in 1585, 
offered the queen a benevolence, which she very 
generously refused, as having, at that time, no 
occasion for money.*' By the fundamental prin-i 
ciple of the constitution, confirmed by Mag- 
na Charta, &c. money could not at any time, 
be exacted from the people without an act of 

parliamentary grant. In the year 1644> Henry VIII. borrowed 
fi*om citizens £21,263, 6s. 8d. upon lands mortgaged to them. 
The principal lenders were knights^ and the rest were kn^hted for 
their loyalty. In 1551 the city became boimd with £dward VI. for 
repayment of a loan from some bankers at Antwerp. P. 281^ 282. 
The next was that mentioned in 1569. All liiis is to be found in 
the very place referred by Mr. Hume> when (p. 476.) he tells us that 
Sir Thomas Gresham engaged the company of merchant-adventurers 
to grant a loan. Stow says that divers merchants and aldermen were 
lenders. 

Elizabeth also, on extraordinary emergencies^ lent money to the 
eitizens. Ib« 

* Murden^ p. 632. 



S54 INTEODUCTION« 

the legislature : but Edward IV. taking advan- 
tage of the particular state of affairs, two years 
after the l^tde of Tewkesbury, and just on the 
eve of a war with France*, when the kingdom had 
been rent with civil dissension, and his power, 
upon the reduction of his adversaries, was great, 
instead of summoning a parliament from which he 
might ask a benevolence, (from time immemorial, 
every legislative grant has passed under that name,) 
directly applied to the people, pretending that he 
demanded nothing of right, but appealed to their 
generosity. The people, however, considered his 
request as approaching to a demand t, and resent- 
ed it so deeply, that the device was lu-ged by the 
Duke of Buckingham, in his discourse to the citi- 
zens at Guildhall, as a proof of the oppression prac- 
tised by Edward, and as a reason for not permit- 
ing respect for that prince's memory, to prevent 
their setting aside the succession of his children t. 
Richard III. himself, with both houses of parlia* 
ment, by statute 1. c. 9. of that prince, stigmatized 
it as an act of injustice and oppression, and de- 
clared it to be illegal, in the strongest terms of re- 
probation. Henry VII. whose situation in re- 
gard to the influence of the crown, has been 

* Habix^ton in Ken. p 461. 

t In the Croyknd Chronicle it is saidr-'' Indueta est nova et ni- 
amdita impositie mnneris, nt per benevolentiaBi qtulibet daret id quod 
veUet^ imo yerius id quod noUet." Hist. Croylandensis Continuation 
p. 568. We are informed by this wnter^ that Riehard violated ihe 
statute himself, by exacting a benevolence^ which the people caHed^ a 
malevolence. Id. p. 571. But the fact is not mentioned by other 
writers. Even Bacon tells us that the benevolence was devised by 
Edward IV. Hist. p» 602. 

X See More's Hist in Ken. p. 498. Halle^ f. SO. Holinshed> p. 728 



INTEODUCTION. Q55 

already described, had, in 1492, resolved upon 
something of the kind, leviable at a certain rate, 
but the people resisted it till Parliament lent its 
authority to the particular tax proposed*. In 
1505, he repeated the measure successfully without 
the interposition of the legislature t. His son and 
successor, instigated, as it is alleged, by Cardinal 
Wolsey, attempted to levy money without an act 
of parliament ; but violent symptoms of rebellion 
obliged him to recal the warrants and disavow the 
measure, when he declared that he meant only to 
appeal to their good*will, not to ask any thing of 
right t* In the year 1546, when the Reformation 
had so greatly extended the influence of the crown, 
Henry a second time resorted to this unlawful 
way of raising money; but, though he sent AU 
derman Read to Scotland, and practised severi«> 
ties against others for refusing, it is extraordinary, 
-^ and the fact has escaped historians-^^^that he was 
obliged to apply to Parliament for its authority to 
levy the sums proposed. As a statute was passed 
at his request, the demand ceased to be irregular §. 

« 9ee 8t. ii. Henry VII. c. 10. t Bacon's Hist. p. 609> 631. 

X Herbert^ p. 66^ 67. Holinshed^ p. 891. Halle^foL 138. This co* 
temporary writer tells us that people " aaiei, if men should give their 
goodee by a oommission^ then wer it worse than the taxes of Frannoe, 
and 80 EngUnd should be bond and not free." Yet Mr. Hmne oould 
not discover any proof of the English being sensible of any superioritj in 
their government. Halle is supposed to have been bom about the last 
year of the fifteenth century. He was a lawyer, became a seijeant^ 
and wa)i likewiae a member of Parliament He died in 1548. Chal- 
mers' Biog. Diet 

§ The commission for the benevolence is dated the 5th of January 
1546. Rym. Feed. vol. xv. p. 84. Mid the statute was passed the same 
year, 37 Hen- VIII. c, 35. { 83 and 84. printed in the late publica* 
tion of Statutes of the realm, vol. III. p. 625. 



SS6 INTRdDUCflOl^^r. 

Nothing of the kind was ever afterwards atten^pt-' 
ed by the House of Tudor. Thus, anterior to the 
dynasty of the Stuarts, there had been only fivef 
attempts at benevolence, of which two obtained 
the authority of Parliament, and consequently be-< 
came legal taxes. 

As on this subject-'-^K>f real importance to the 
political history of the country— »Mr. Hume has^ 
successfully led public opinion^ the reader will 
deem a strict scrutiny of that celebrated writer's 
statements no trespass upon his patience^ In 
treating of the benevolence levied by Edward IV. 
he says, ** but, as the king deemed these sums 
unequal to the undertaking, he attempted to levy 
money by way of benevolence, a kind of exaction^ 
which, except during the reigns of Henry HI. and 
Richard II. had not been much practised in former 
timeSf and which, though the consent of the parties 
was pretended to be gained, could not be deemed 
entirely voluntary." In the apparent support of 
this statement, there is an array of references, 
whence the natural conclusion is, either that the 
whole of it was warranted by them, or that he had 
alluded to the practice of former tindes, from hav- 
ing himself adduced instances of it in the preCed« 
ing parts of hi^ history. The conclusion is, in 
both resj)ects, erroneous. All the writers, with 
ih€ exception of Fabian, ^nd his langiiage like- 
wise implies it^ pronounce the benevolence by 
Edward IV. a new device, in the most direct 
and explicit terms. No instance is insinuated 
by the elegant author himself against Richard 
II. in his history of that king; and, though 



INT£0]>UCTION« 26? 

in his history c^ Henry III., it is said tiiat <* Hen-^ 
ry demanded benevolences* or pretended voluntary 
contributions from the HobiUty and prelates/' 
the assertion derives little support frcHn the only 
authority to which be refers, or from any other. 
Henry's long reign was full of civil dissention, and 
marked with many violations of public rights which 
he was obliged \o acknowledge, and soleninly to 
swear never to repeat *. He was guilty of extor- 
tion, not only from the Jews, who appear to have 
been thought lawful prey, but from the citizens of 
London, whose pardon afterwards he was forced to 
b^ with tears in his eyes t. It is even alleged, 
that some of his household were free-booters, and 
that he sh^ed in the spoilt. Having reduced 
himself to great straits, and disposed even of his 
plate and jewels §, he summoned a parliament ; but 
that assembly, far from relieving his wants, assail- 
ed him as usual with the most bitter reproaches : 
Disappointed in his hopes of procuring money from 
them collectively, he endeavoured to obtain it by 
applying to them individually — ^promising each a 
return of favour, pleading his debts, and even 
feigning that he meant to make war with France : 
But his request was received with every mark of 
contempt and scorn ||. Turning from the barons, he 

• M. Paris. Cotton's Short View. Daniel in Ken. Henry, vol. 
▼iL b. iv. eh. 1. 

t M. Paris, p. 657, 670. 
J Henry, toL vii. p. 18. 
§ M. Paris, p. 650. 
11 Id p. 657. 

VOL. I. S 



g^g iNT&aDVcnox. 

applied to tte ecdmi$&tit^ to whmn be used the mi* 
serable whiueof a^fliendicaiit^declanbg that it would 
be graUer charity to assist him than the wretch who 
begs from door to door. •* Asgerens majorem elee* 
mosynamfore sibi jovaraen conferre peconiare quam 
alicui ostiatiw mendicanti." But, with the ex- 
ceptimi of two abbot% he was not more success* 
ful with that body ♦*— *In thi« part of Mr. Hume's 
wwk, as elsewhere, we encounter bold assertion^ 
He roundly states that this and other practices 
were imiformly continued by Henry^s successors t. 
In another place I, he argues that the legislative 
enactment which empowered Henry VII. to Ie*y 
me benevolence, indirectly established the general 
princii^e in favour of the crown^ Bnt, with equal 
j%istiee may it be said, that a statute whilrh im* 
poses one tax for the pobUc ex%encies, im|dies a 
power in the soi^reign to assess the pecf^te at dis*- 
cretson^ The istatute of Richard HI. was not 
abrogated by that in fevcmr of Henry VII., and 
the existence of the latter fully imports the under- 
landing of both king and people, that money 
could not be legally raised in this way any more 
than by an ordinary subsidy, withcmt the intervene 
tion oi* Parliament. Mr. Hume^s view has how- 
ever the merit c£ originality. Wolsey contended 
that Henry VIII. was not bound by the statute of 
Richard III., because it was passed under a usurr 



* M. Paris^ p. 658. Daniel in Ken. p. 179. 

+ Hist. vol. ii. p. 165, 166. J Vol. iii. 



paUofi ) yet, tboiigli a pretext fbt ifi$t»tiee was 
eagerly hunted after^ tha iiigefiiifty 0fU^ty'§ advl* 
net never started such ^ plea : N<^ Were the 
Stuart family more suceetMfal *< 

" The CotttmoM'' (Mi mm attthority calk it the 
Parliament^) *• in 1585/* toy* Mr. Hollies dffdi^d 
Elizabeth a b^nei^cdenee. whidi «rdve» that it was 



* Mt* H«aie liii, wltb m«e tiiMusibSlity^ qiioitd i* piMigtf iMii 
Cotton's Abridgement in regard to loans j th*t^ in the 9d of Rieh^ 
ard II. it was enacted that, when a loan was demanded, ^^ such as 
have reasonable excitse for not lending siay there Be received wilhotlt 
i^txJUi^ ftDttAQ^s, frdtsll, or §Asi" '' Bf fl^ law/' aay» Mi. Uma4, 
" the kind's prerogafiy^ of exaetinf loins waa ratified, and wlMlt 
ought to be deemed a recuondble excuse was still Mt in his Qwn breast 
t6 determine i** btit had he attended to what occurred immediately 
afta-, (ietf Rdico»A», j^. 19^5^19^4,) lie w#ttld haVe dktoV«M Ma 
mistake (xf the meaniag. For patlictment endotfvoitred to pf9caxe a 
loan in the fifth of that prince &om the merchants ; but they refused, 
and it wa^ not pretended that there was any law to compel them* 
This tA^I hate led Ait Mstorian to oonsult the fctJl rolls €i pw^- 
ment as printed in 1767 by order of the Hams oi Lords; a*d theie 
he would have discovered that, ih the 25th of £dward III. loans 
were onlered to be repaid, and it was enacted that none should Be 
cdHip^lled i6 lead '^ qmr eeo esi eontre teson ei taficttOickUe 4^ Ia 
ierre" Rot Par. vol. h. p. 339. No. 16. Thsty evea in Hie Very 
pase refearred to, it is said that letters of priyy seal had been issued, 
and that tho^e who recused to lend had been ttireatenedf, and com- 
itMnMI to ipi^if before th6 ecmndl, '^ a gtahde dftftiage ^ affin^e 
des ditz povres Cces. et ensdandre du roi, et encontre la loye de la 
terre." Vol. iii. p. 6^. Ko. 30. 2d Richard II* Now, since com- 
pttlsaioty iftttahs weire fe'j^rdbttted as against the htw of thcf land, aikE 
an exeusie^ WSf to ber rieeeived Without fettthei^ sOAktnons, travail, tt 
gri^. It fer p«#lecdy ^videtit that it reidttined With those ^plied to, 
not with <l^ Mfig, to determine whettief the e^euse was reasonabfei 
for the sov^r^gfi h«d no Way to ascertain Whether it Wefe to or not. 
Had the e&a^met^ been capable dt Mr. Hume's construction, it 
would have been used by the crown not onfy thfee yeai's afterwards, 
but at a later period^— to justify a measure condemned as ill^al* 



260 INTRODUCTION. 

little conceived to beirregular t." Now, as the grand, 
the only objection to what in common speech is 
termed a benevolence, arises from it's being a real 
extortion under the pretext of a voluntary gift (for, 
•were the practice to prevail, individuals would be 
exposed naked to the influence and indignation of 
the crown,) it is utterly impossible to. conceive 
upon what ground a legislative grant, pregnant 
with no injustice to* any particular class of the 
community, could, under one name, be more re- 
pugnant to the theory or spirit of the constitution 
than under another. Against such a species of 
benevolence, the law of Richard III. neither was', 
nor could be, directed; for parliament ever con- 
tinues to be invested with the same power, and 
its acts must, therefore, be equipollent. But had 
this elegant author bestowed a little more inves- 
. tigation on the subject, he would have discovered 
that the word benevolence had, in parliamentary, 
and common language, totally different meanings, 
importing in the first, an ordinary legislative sup- 
ply to the throne, and in the other, a species of 
extortion at the mere will of the prince. So deep- 
ly rooted is the first meaning, that, from time im- 



By the way, we may be pardoned for a single word about what is 
called Cotton's Abridgment It was published by Prynne in 1657, 
and is alleged to have been made, not by Cotton, but by Bcwyer, 
keeper of the Recwds, about the end of Elizabeth's reign. It is va- 
luable, but not complete, nor always accurate. See preface by Raith- 
by to the first volume of his edition of the Statutes. P. «3. 
t Hist. voL V. p. 460. 



INTRODUCTION., * S6j 

memorial, the assent of the sovereign to a money 
bill has been thus: expressed in Norman French : 
•* Le Roy, or. La Roigne. remercie ses loyaulx sub- 
jects, accepte lour benevolence, et aussi le veult.** 
** The King, or Queen, thanks his, or her, loyal 
subjects, and wills it to be so *•'* Let us now. .take 
the passage : founded on by Mr. Hume, which is 
part of a speech by Sir Robert Cecil, in the year 
159^ or S, and we shall probably perceive small 
cause to infer that there had been any irregular 
offer of money. A very large supply, according 
^ to the opinion of those times, had been moved 
for; and many contended that it would form a 
precedent for future grants, prejudicial to the na- 
tion. Sir R. Cecil, then Secretary of State, in 
order to remove this apprehension, observed, that 
" In her Majesty's time, it was not to be feared 
that this precedent would ever do them harm, for 
her Majesty would never accept any thing that was 
given unwillingly. Nay, in the parliament the twen* 
ty-seventh of her reign, she refused a benevolence 
ofiered her, because she had no need of it, an^ 
Tirould not charge her people t." Now on a strict 
examination of the journals for the year 1585, 
nothing of this kind appears ; and the only occa- 
sion in which she declined an offer of money, was 
in the ninth of her reign, when she remitted 



* Blackstone's Commentaries^ vol. i.p. 184. I^fiwei' Jovrnali at the 
«nd of every Session^ House of Lords, 
t lyEwes' Journals^ p. 494. 



£68 ^MTAOOUCTIOK. 

the third pa3nnent of a subsidy tendered hy Mil 
in ordinary form^ alleging that she had bo need 
of money at that time, and that it was better 
in her subjects* pockets than her own, though 
her real motive was to evade a condition of 
marriage on her part, which the gift imported ^. 
^To this then must we presume that Sir Robert re- 
ferred, and we do it with the greater confidence, be^ 
cause we are informed by the editor of the Journals, 
that the speech founded on by Mr. Hume was ex* 
tracted, not from the original journals of the house, 
but fVom an anonymous journal, (takeii by some 
member,) which he had in his possession, and it is 
easy to conceive that an error of a date may have 
crept into it. But perhaps the word benevolence 
may still startle the reader, since there may reason- 
ably be supposed a dijBference betwii^t a formal and 
unvaried response of the sovereign, and the coni- 
;non language of the two houses of Parliament. 
To remove this iinpression, we may observe, that 
upon a strict investigation of D*Ewes* Journals, 
from beginning to end, we have discovered, that the 
word benevolence, employed to denote a regular 
legislative grant, occurs not seldomer that twenty 
time^ f. Nay, in reference to that very sub- 

* B'Ewes' JTounials^ p. 131. Gambtei in Ken. p. 400. 

t In the first year of her reign^ Sir Thomas Gargraye^ Speaker of 
the House of Commons^ in his speech to the throne at the conclusion 
of the session^ ^^deeired in the njune of the house that her Mijesty 
would he pleased to take in gpgji part th« Jre^ gift of her si^lgeeta^ 
vho> in token of their love and zeal to h«r M^esty^ did ^i^h gma^f^ 



iNTBOBUonov* 968 

sidy vfaicb Cecil vas strenuously eodeavonriiig to 
obtain^ and to which his speech related«<*«ihe wofd 
benevoLance is used four times, once by the eecie* 
tary himself*. Nor should the double meaning of 

offer tiotD b^r^ BOt <mly the suMdff of tona^e and poundage, but like* 
wise <m^ iuM4y «m<^ two^/iftegnihf md Unth$,'* D'£wes' Journal p« 
31. Sir N* Baeoii> then lard kecf>erj i^^turBed warm tbanka at iSm 
deore of her M^jestyj and calU the grant a liberality and benevolence-^ 
using the latter word to denote supply five times. P.3^ In the fifth of 
the Qoeea, the same hffd keeper again slyles the supply a Ubefality and 
beneToleoce, aod, as he had done befi>re, talks of the Commons' ben»« 
Y<^ent minds, p. 7S. In the 13th of the Queen, the same lord keeper, 
on returning thanks for the subsidy, calls it a benevolence sev^ tjonei^ 
p« 151. talks of their benevolent minds, &c. In these instances tbs 
word is used without the least formality » In the 18th, he speaks *' of 
the grant of a subsidy," and styles it a benevolence thiee times. He 
also talks of their benevolent minds, p. 234. 

* On Friday the Sd of March, Sir Robert Cecil states, that the 
eopumittee of the House of Commons had had a conference with the 
Committee of the House of Lords, (a thing, by the way, keenly oppos« 
cd by many, as tending to infringe the Uberlies of the Commons,) 
about a supply, and he says, that ^^ their lordships will not give in any 
wise their assent to pass any act in their house of leu than three en« 
tire subsidies to be paid, &c. And that to what proportion of beneVp* 
lence^ or unto how much their lordships will give assent in that behalf^ 
they would not as then shew unto the said Committees of this house." 
The Lords insisted for further conference, but this was opposed by 
Bacon and others. The proposed grant was generally called a subsidy, 
and it is so by Cecil himself." P. 483. In page 484, the word be«> 
nevolence occurs. 

Amongst those who thought a conference with the Lords much pre* 
judicial to the ancient liberties and privileges of this house, and to 
'' the authority of the same," was Mr. Beale, who '^ insisted upon the 
preservation and maintenance of the former usual and ancient liberties 
and privileges of this house in treating of subsidies, contributions, and 
otherlike benevolences amongst themselves." P. 485. All the influence of 
ministers to procure a conference with the Lords, failed at this time, on 
the constitutional ground stated-<-'andthe following passageof the Jour- 
nals is entitled to much notice. " It having beenalready overruled by the 
House, that there should be no conference admitted with the Lords touch- 



364 INTRODUCTION. 

the word be matter of wonder ; for subsidy had also 
two significations, denoting in one sense^ a general 
grant of money in whatever shape, in another,— a 



ing the mattei^ of the stibsidy, which their Lordships had desired ; it 
was therefore ordered^ upon a motion made in the House^ that some an- 
swer might presently he sent from thence to their Lordships^ to satisfy 
them touching their said motion for conference ; for that^ in respect the 
said conference had heen abeady denied^ and had heen voted to he 
prejudicial to the liherties of the house hy the judgment of the same^ 
that a convenient numher of this house should he appointed presently 
in the name of this whole House^ to give unto their lordships' most 
hurohle and dutiful thanks^ for their said lordship's good^ favourahle, 
and courteous offer of confereiice^ &c. and to signify unto their lord- 
ships that this house cannot in those cases of Benevolence or con* 
tribution join in conference with their Lordships, without a prejudice to 
the liberties and privileges of this House, and of the infringing of 
the same." They therefore pray to be excused, ^' for that so to have 
assented without a bill had been contrary to the liberties," &c. P. 4Sff. 
A conference, however, was agreed to, on Monday the 5th of March, 
'^ touching the great and imminent dangers of the realm and state, and 
the present necessary supply of treasure," — and Mr. Vice-Chamberlain 
in reporting, as one of the committee, the substance of what passed, says^ 
^' It was in the end^ after sundry speeches of divers grave members of 
this House, tending to divers forms of provision of treasure, some by 
way of treble subsidies and like proporiioTiableJifteenths and tenths, and 
some by other sorts of benevolence resolved, &c. p. 491. Now, it is 
worthy of remark, that this took place on the 7th ofMarch,1793, while 
Sir Robert Cecil made the speech, on which Mr. Hume founds his state- 
ment upon the Sd of that month. The difference of sentiment in re- 
gard to the supply, arose from the desire of many to relieve the lower 
ranks ; but all the plans were strictly regular. The famous Bacon as- 
sented to three subsidies, but not to the payments under six years, 
and against the supply granted, he urged the impossibility of raising 
it on the one hand, and the danger of discontent on the other ; and, 
lastly, the danger of the precedent, '^ This being granted in this sort, 
other princes hereafter will look for the like ; so we shall put an evil 
precedent upon ourselves and our posterity : and in histories, it is to 
be observed, that of all nations, the £nglish are not to be subject, base 
or taxable" P. 493. 



INTRODUCTION. 265 

• 

specific assessment ; so that sometimes one subsidy 
was ^ven, with tenths and fifteenths, at others^ 
two, three, four, and so on : a supply was likewise 
called a free gift, a free grant, a contribution. 

Hiaving cleared up this subject, and displayed 
upon what a sandy foundation the historian builds» 
it will be proper to mention, that the two houses of 
Parliament, did, in the year 1586, depart from the re- 
gular course, by contributing amongst themselves a 
certain sum for the purpose of -assisting her majesty 
in her wars in the low countries*. Their object was 
to aid the sovereign without burthening the inferior 
classes, who groaned under the load of taxation ; 
and who shall dare to censure this manly act, be- 
cause they unanimously performed it without the 
formality of a bill, entertaining no groundless, cold- 
hearted, fears of danger from the precedent ? Has 
there ever been, or is there now any principle, 
either in the theory or spirit of the constitution, to 
blast such generosity ? And, instead of indulging 
in absurd deductions against those times, ought we 
not to lament, that the precedent of that assembly 
has been lost upon their successors ? But, lest it 
should be imagined that Cecil alluded to this con- 
tribution, it may be again observed, that her ma> 
jesty thankfully received it. The clergy in con- 
vocation also granted one, which was not confirm- 
ed by act of Parliament t. — The resolution of the 

* D'Ewes, p. 386, 387, 390. 

t The grant by the Clergy, though in convocation, was more ques- 
tionable, because it was leviable upon the whole clerical body, instead of 



Ac. 



jt66 INTBOBUCTIOV* 

Commons in the 4th of Charles L affinds mdditioQ. 
ai proof in support of our statement: ** That it is the 
ancient indubitable right of every freeman, that he 
hath a full and absolute property in his goods and 
estate ; that no tax, tallage, loan, benevolence, ot 
otherlike charge ought to be commanded, or levi* 
ed by the king or an)' of his ministers, without com' 
man assent by act of Parliament^' 
The power « Queen Mary also," says Mr. Hume, *' by an 
ciiitoms» order of council, increased the customs in some 
branches, and her sister imitated the example.'' 
Magna Charta, which merely confirmed the com* 
mon law, expressly provides against every thing of 
the kind, and, so firmly was the principle establish- 
ed, that there does not occur an instance of any 
imposition on merchandize, having passed without 
being complained of in Parliament as a ^grievance 
and being redressed ; nor even of any attempt to 
impose, from the time of Edward IIL till the fourth 



being a contribution by the individual members of convocation^ and yet 
was not regularly passed into a law. Strype'sLife ofWlii^ift^p.5261^e/ 
seq. Annals^ vol. ill. p. 405. It cannot be unknown to the reader, that 
the practice was for the convocation to offer a subsidy, and send it un- 
der the royal hand and seal to the Commons, as a money bill for the ap- 
probation and sanction of the Legislature. See D'Ewes' passim, par* 
ticularly p. ^9, ^16, 688. This was omitted ; but no objection to the 
payment had been made by the Clergy, and Parliament, which, we 
may readily suppose, would not have refused its assent, never inter- 
fered. This precedent was afterwards taken advantage of by Laud, 
in 1640, as we shall afterwards see, — a proof of its unusualness. 
Troubles and Trial, &c. p. 80. The Clergy were likewise assessed at 
this time with a charge ot troops for the low countries, which was 
doubtless ill^al, but diey did not stand upon l^al rights with their 
patroness. Strype's Annals, vol. ill. p. 406, et seq. 



of Qaeen Mary, a period of nearly 200 years ♦, 
The military achievements of Edward HI. gave 
him great influence in such an age, apd he availed 
himself of bi3 popularity* to impose new duties oii^ 
commei^c^: But parliament never permitted any^ 
thing of the kind to pa30 unnoticed, and he, &r 
from pretending to the power of imposing, adopted 
the readiest way to recover his popularity, by re^ 
calling the measure, applying in the regular tbrm 
for subsidies, and thankfully accepting of them as 
gifts— ^thereby directly disclaiming the idea of ex- 
acting any thing as a right t. Queen Mary, who re* 
vived a practice which had been so often reprobate 
ed and repressed, and so long unattempted, did not 
arrogate the right of imposing, but evaded the 
law, which she did not venture avowedly to break. 
The custom of wools had, in consequence of the 
improvement in the English manufactures, greatly 
decayed, as, instead of the raw produce, much 
woollen cloth had been exported ; and the same 
quantity of wool which, in its raw state, would, 
owing to later duties, have paid 40s. was, 
when wrought up, chargeable with 46. 8d. only* 
The regulation was calculated to promote English 
manufactures; but Mary, (whose government 
should never be cited as illustrative of the ancient 
constitutional principles,) alleging that the wool 
was liable for the duty, in whatever shape it was 
exported, and being then engaged in a war with 
France, and much in want of money, laid an 

* 2d Inst. 61. t Id. Mag. Chart. Ch. SO. 



268 INTRODUCTION. 

additional assessment upon the cloth, which how- 
ever did not nearly equalize the duties *. She 
died the next year, and a loud clamour against 
the imposition was raised by the merchants in the 
first of Elizabeth. That princess assembled the 
judges to deliberate upon the measure, and give 
their opinion upon its legality ; but, though her 
successors readily obtained both judicial abd ex- 
tra-judicial sanctions to their extortions, it was to 
the credit of Elizabeth that her judges would not 
prostitute their office by an opinion in her fa- 
vour f : While all the great lawyers, including 
Plowden, openly condemned the tax as altogether 
unconstitutional ; nay, Plowden composed an ar* 
gument against it t She herself did not pretend 
to any right to alter the customs, but rested her 
plea entirely on the equity of the thing, arguing 
that, though it did not fall within the words, it 
did within the spirit of the laws in regard to wool, 
and therefore ranked it under the old customs to 



* Treatise by Sir Mat. Hale^ published in Hargrave's Tracts^ 
Part III. Mr. Hackwell's argument against Impositions^ 4 James I. 
Howel's State Trials^ vol. ii. p. 453. Aliens paidhi^er duties; but 
as the ill^al assessment was proportional^ I did not conceive it neces* 
sary to specify the rates. See the whole of the great case of imposi- 
tions in 4th James I. Howel^ vol. ii. p. 371 to 534. 

f Dyer's Reports^ p. 164> 165. ^^ It was complained of by the mer- 
chants/' says Dyer, '' with great exclamation^ and they sent to the 
queen to be unburihened of ii, because it was not granted in parlia*i 
ment." lb. Strype's Annals^ vol. i. p. 15. 

X Hargrave'j Observations on the great case of impositions^ 4 James 
I. in Howel's State Trials^ vol. ii. p. 378. See also p. 454^ and Plrefaoe 
to Hargrave's Tracts. 



lNtRODUCTION« 260 

disguise its illegal origin. With this, possibly, the 
merchants were satisfied, and parliament, with the 
nation at large, then occupied with the most im- 
portant afiairs that can engross the attention of 
any state, and perceiving no disposition to extend 
the precedent into a right, permitted the illegality 
of the measure to fall into oblivion. Even in 
Philip and Mary's reign, the right to impose was 
directly questioned, and the judges decided against 
the crown. The town of Southampton obtained 
an exclusive grant by letters patent to import 
Malmsly wines, and all others were prohibited un- 
der the pain of treble customs — a mere device to 
raise the duties. But when the matter was tried 
in the exchequer, upon an information by the 
Attorney-General against certain merchants, " two 
points were," say^ Sir Edward Coke, " resolvt^d by 
all the judges, 1. That the grant made in restraint 
of landing of the said wines, was a restraint of the 
liberty of the subject against the laws and sta^ 
tutes of the realm. 2. That the assessment of tre- 
ble custom was merely void, and against law : as 
it appeareth by the report of the Lord Dier, under 
his hand, which I have in my custody *." There 
x>ccurred in that reign, however, another instance 
of evasion of the law. On the breaking out of 
the war with France, she prohibited intercourse 
with that county — a measure that might have 



** 2d Inst p. 61. Bacon^ in his defence of Elizabeth's government 
against a libel in 1593^ alludes to this imposition ; but though^ in the 
next reign, he aigued for the right to impose, he did not in this. 



270 INTRODUCTIOM. 

httn fftoper in itself^ had she not eviifced tfast it 
proceeded from an improper motive, and then al- 
lowed it to those who procured a Itcense to trade 
at a certain rate of' dntj on the artielei imported* 
Eiijsabeth pursued the same course in regard to 
siveet-wineft on the war with Spain* The injus^ 
tice of both Queens is sufficiently manifest from. 
these instances^ but, independently of the jlodg- 
ment against Mary, and the legal opinions in the 
jjcxt reign, the very subterfuges to whfeh they 
resorted, a^Ebrd the bert evidence of tl^ fedings 
and understanding of the age on that subject ^* 



' * ^ Inst. Mag. Cli. c. 30. De Tal. non Concect. c. 1. 4tli Inst 
]». St9, SO, 31, llil. Hftrgmve'ft Ttacta. The giteAi esm of itApfM- 
tUHM hi Howel> Yol. ii. Mr^ H«me quotes tframphalilSy the tre«tile 
by Str John Davies on impositions ; but it is weU known that this 
lawyer wrote the tifeatise from very unworthy motives, as did Bacon 
atiofiier ikt the same tkne. "The argumeM by DtfvieB k so extntor* 
ditiary, that, sinee it has been so mudi rdied on by Hnme^ we shull 
be excusedfor giving an abstract of it. We ^all premise, however, with 
mentioning, that Davies expressly states thsit no imposition by preroga- 
^ve h^ been atfeisftpt^ from the tiuie o^Edward III. tiS that (»/Qtteen 
Mary. '^ True ii is" says he, ^* ifiat dnring the reign &f the^e 
princes" (the successors of Edward anterior to Mary) " we find no 
impositions directly set upon mercJuindise by their ahsolute power orprero' 
gntive" c. 17. Bii» KrginneM is to this eff^iet: live subject is ta be 
j^udged by the kw of nations, whicli the eomnt^n law acteowledges, 
and which existed before the common kw. The civil and canon 
law, howeter, form part of the law of nations, and these allow the 
prince tb Urf im^Motis at tHll. But afi absoktet'^nees^ accordSng 
to Fetteseiie, are e^fuaf; (by the way; Fbrtesciw'ff whole dtatdments 
are repugnant to the most distant idea of absolute power, being lodg- 
ed in the king of Engknd) and, as the king of England has equal 
power with other monarchs, he has a right to hnpose. TMs loay be 
inferred from his other prerogatives, which are of a higher deserip- 
tion,--«8 the power of making peace and wur, prohibking the subject 
from quitting the kingdom, laying embargoes, &c., but it would be 



IKTROOrUCnOlf. €71 

*< Embargoes on mercha&dise/^ says Mn Embaigoes 
Hume, » were another engine of royal power r"^' 
by which the GBglisk princes were able to extort 
money from the people* We have seen in- 
stances in the reign of Mary. Elizabeth^ before 



gtmige if die grdfttcr power w(sr« g$mi> titA tl&e leas withheld^ there* 
fore we msy into that he enjoiy« the power to impose. The king has 
m right of pr^^«ertf hi tite port8> which are called his^ and conse* 
qoently may lay impoaitieHS upon the trade of those ports which are 
hh owik fie is iJm foanttiii of justice^ and honnd to administer it to 
wBiot^tamti^ Btit tin eamiot be ckrtie without expense ; therefore he 
mmf iBdemsify himself. He is oh%ed to {n^otect commerce^ and as 
^urt eaamot be done without cost^ so he' justly kys impositions to 
meet the outlay: Akd, with regard to the greatness of the power, 
that afibrds no argusseiif against it^ sinco^he has greater, even die 
tppsftitment of the ju^es. The nature of customs appearfe horn the 
juttfte, and the records admitting them appear to he anterior to ^e 
•Mtafes, ergo, they were imposed by prerogative. A« for the tariotts 
aCatiktea which seem to limit the prerogatrre, they are of no fottse, 
because the prerogative eaimot be restrained, Edward I. laid impo- 
sitiofis, and though the commons complained, he remitted them of 
meie grace. Edward II. took a new custom in the beginning df 
his ragn ; but being a weak prinee, and ovetnded by Ms baroni^ 
ooasented ^ abofish aU impesttiokis not giv^ti by Parlismettt 
Bdward III. imposed many duties by his prerogative ; and 
that^ he remitted them at various times, it was on the petitioh 
of tiMi CooffliefM, and in eonsequenee of larger grants in a parliamen- 
tary way. The examples of severity at the dose of that prince's 
r^xpky whi<^ he impntes to other causes, struck such a terror that 
there was no attempt tahnpose afterwards till the time of Mary. But 
what then ? Calais was conquered from France, and a staple was esta- 
lushed thereby Bdward til. by wMdt he laid impositions out of the 
kingdom, and obQged the merchants to carry dieir exports thither. 
^' This he did by ordinance in virtue of this prerogative ; and if this or^ 
difmnce so made had been thought unllawfid and against the liberty of the 
subject, it would never have been approved and continued by so many 
parliaments in the times of Mich. IT. Henry IV. Henry V. and Edw. IT. 
neither could there have been such heavy penalties laid by these parlict^ 
ments upon the trcmsgressors of tho^e ordinances." Queen Mary used 



272 INTRODUCTION. 

her coronation, issued an order to the custom- 
house, prohibiting the sale of all crimson silks 
which should be imported, till the court were first 
supplied. She expected no doubt a good penny- 



her prerogatiye after she lost CiJais^ and thougli the merchants in the 
b^inning of the next reign comphuned of it^ yet it was continued. 
The judges were assembled ; and though their judgment is not to be 
Jbundx tue may conclude that it would have heenfauourable to the crown* 
(Here he argued unphilosophically from his own corruption.) Eliza- 
beth also imposed some new duties. In the 33 chap, he has a compa- 
rison between the impositions set and taken in England by the preroga- 
tive and the gabelles^ &c. of other countries^ ** whereby it will appear, 
that the subjects of the crown of England do not bear so heavy a bur*> 
then by many degrees as the subjects ^ of other nations." He impu- 
dently contends, that the king of England has as much power as any 
emperor of Rome or of Germany, or any other state or prince in the 
world ; but he admits that the English monarchs had not exercised 
their authority. He gives a melancholy picture of impositions on the 
Continent, and says, ^' Thus we see that the king of England doth lay 
but his little finger upon his subjects, when other princes and statei 
do lay heavy loins upon their people." This he ascribes not to a dif- 
ference of power, but of gracious qualities in the prince. ^^ Lastly," 
«ay8 he, " our kings of England, in their wisdom, well understood the 
i^ture and dispositions of their people, and knowing them to be a free, 
generous, and noble nation, held them not fit to be beaten with Re- 
hoboam's rod, esteemed them too good to be whipt with scorpions ; and 
therefore, God be blessed, we have not in England the gabeller standii^ 
at every town's end; we have not a publican in every market ; we pay 
not a gabelle for every bunch of reddish, or branch of rosemary, sold 
in Cheapside ; we have no complaining in the streets, as is said in the 
I44th Psalm ; and therefore I may weU conclude with the conclusion 
of that psalm, ' Happy are the people that are in such a case, blessed 
is the people that have the Lord for their God above in heaven, and 
king James for their king here upon earth.'" 

In p. 145, he well observes, that ^^in France the most richest and 
andentest of the neighbour kingdoms, the impositions not only upon 
merchandize crossing the seas, but also upon the lands, goods, and 
persons within the realm are so many in number, and in name so di* 
vers, as it is a pain to name and recollect them all. 



»> 



INTRODUCTION* ' 9t}f3 

worth from the merchants while they lay under 
this restraint/' As the learned historian had al- 
luded to the embargo in the time of Queen Mary, 
under the head of customs imposed by her, he 
ought not to have repeated it, as if it had been 
another engine to extort money; and, with re- 
gard to the instance in the reign of Elizabeth, it 
is necessary to do little more than quote the words 
of the authority to which this elegant writer re- 
fers: **That the coronation,** says Mr. Strype, 
the only authority referred to " might be done 
with the greater magnificence^ the customers of 
London were appointed to stay all crimson-colour-* 
ed silk as should arrive within their ports un-^ 
til the queen should first have her choice towards 
the furniture of her coronation ; and to give warn- 
ing to the Lords of the Council if any such should 
arrive there. But, nevertheless^ to keep the matter 
secret^.*' This argues a lamentable meaniless in 
Elizabeth, but does not support the historian's 
statement. She does not pretend to stop the goods 
by her prerogative ; for, in that case^ secrecy would 

Such is tlie treatise which Mi*. Hume selected as affbrdii^ the most 
indisputahle evidence of those powers in the throne which he chose to 
ascribe to it (See also in Carte's Hist, vol iv. p. 191^ a transcript from 
Manuscript in Davies' hand- writing.) But it is quite deair^ that the ac^ 
knowledged constitutional principles in his own time would have givoi 
ground for similar deductions^ because the powers from which Davies 
drew" his inferences have not been taken fhmi the crown. By the 
way^ nothing demonstrates the stiretches of prerogative attempted by 
the Stuarts^ bo much as the shameless profligacy of the leiiding law- 
yers. Bacon also prostituted his pen in this question ; but he assumed 
a diligent and more modest ground, claiming it from law. 
• 3trype'8 Annals^ vol. i. p. 27. 

T 



37i INTRODUCTION. 

have been impracticable : She evidently trusted 
to the ingenuity of the customers to invent excu- 
ses for detaining the goods, and affords the clear- 
est proof of the illegality and novelty of the mea- 
sure, by sending the injunction ** to keep the mat- 
ter secret." Upon the subject of embargoes in 
general, we shall only observe that the law does 
not appear to have undergone any material change. 
There had been no fewer than thirty acts about 
opening and shutting the ports. The power entrust- 
ed to the sovereign on this head is conceived to be 
requisite, in order to prevent a greater evil. But 
it was always held as law, that no dispensation or 
licence contrary to the embargo could be granted 
for money by the prince. Sir Ed. Coke, amongst 
others, is explicit on this point ; and Sir Mat. Hale, 
who has told us that proclamations with various 
penalties, which neither could be, nor were intend- 
ed to be enforced, were occasionally issued, ob- 
serves, ** that if it were admitted, that in these par- 
ticular cases of arms, ammunition, victuals and, 
money, such proclamations .might be made, and 
thereby the ofienders might be subject to fine and 
imprisonment ; yet it could not be extended to 
other things, neither ought or might this inhibi- 
tion be an engine to gain money by licences. For» 
if the proclamation had any strength, it was be- 
cause of the inconvenience of the exportation of 
those things. If it were not a public inconveniency, 
it could not be inhibited barely by proclamation ; 
and, if it were a public inconveniency, it might not 
be licenced for private profit* If it mighty the 



INTRODUCTION. 275 

Strength of the proclamation would consequently 
cease *." 

*• The sovereign even assumed a supreme and Poweras. 
uncontrouled authority over all foreiff n triftde : ?™^ ^y 
and neither allowed any person to enter or depart ™''gp over 
the kingdom, nor any commodity to be imported toldl^and 
or exported, without his consent." The slightest ^^^^t 
examination might have satisfied Mr. Hume, that «^v«i«aia 

, . . , , 'in prevent- 

his statement was altogether erroneous and un-mgthem 
founded ; and that the law in regard to embar- vdUng*' 
goes, and to opening and shutting the ports, differ- Jj^^** 
ed then very little from what it wj^s in his own 
time f. As to the right of individuals to enter or 
quit the kingdom, the utmost liberty was allowed 
at common law, unless the prince laid a positive pro* 
hibition j but by the 4th chapter of the constitu- 
tions of Clarendon, ecclesiastics were restrained 
from going abroad, because, from the attachment 
to the Romish see, they promoted its usurpation 
over the liberties of England ; and, by the time 
of Edward I. peers were also restrained, because 
they were the regular counsellors of the crown ; 
knights, because they were bound to defend the 
kingdom from invasion ; archers and artificers, be- 
cause they carried the arts out of the kingdom. 
But by 5 Rich. II. C. 2, matters were so far re- 
versed, that great men and notable merchants on- 
ly were permitted to pass beyond seas at pleasure. 
By the 25th of Henry VIII., it was provided that 

* Haxgnve's Tracts^ Pars ii. c. 9. p. 96. Seethe whole duster. 
f 3 Iii8t.t;. 84. Hkle's Treat in Haigrave'sTractl. The great case 
of impodtioii already referred to in Howel. Sbckst. yoL h p* S66. 



276 INTRODUCTION. 

<< no person reBident within any of the king's do- 
minions should depart out of any of those domi- 
nions,, to any visitation/ congregation, or assembly 
for religion ;" this was revived for a limited period^ 
by the 1st Eliz. Ci !•* The powers granted to 
the crown may be imprudent, or impolitic $ but^ 
where the legislature thinks it necessary to make a 
provision against any supposed evil, it is, surely, 
not logical to rank this under the head of preroga- 
tive. The prince is bound to execute the laws, 
though these may not always.be consonant to strict 
principles of policy or general liberty. When the 
supposed necessity for the act ceases^ ot mp^e en* 
larged notions are entertained, an alteration is 
made upon the law. This accordingly happened 
on the point we are now discussing ; the law of 
Richard 11. prohibiting the people from going 
abroad having been repealed ; but the prerogative 
was not abridged, nor yet is^ since the prince has 
always pca^L U,e pLer of restrailg. -der 
severe penalties, any individual from leaving the 
kingdom — by the writ ne ea^eat regnum : The prin- 
ciple of the |aw is, that certain individuals mighty 
on great occasions, injure the state by carrying in-* 
formation abroad ; and it is thought better to lodge 
in the king a power that may be abused to the 
oppression of an individual, than expose the nation 
to the hazard of ruin. This branch of the preroga- 
tive however, has long been imexercised j and, even 
in Elizabeth's time, restraint was rarely used. — "No 

* 3 tuBU c. 84. Hale's Treatise in Hargrave's Ttects^ and the 
greftt case of impositions already referred to* Blackst. Vol i. p. 266. 



IKTRODUCTION. 277 

man could travel/^ says Mr. Hume, " without the 
consent of the prince. Sir William Evers under* 
went a severe prosecution because hehad presumt 
ed to pay a private visit to the king of Scots.'^ 
The true answer to this account of the prerogative, 
is the view which we have given of the law : But 
this Case of Evers, when in vestigated, shews that the 
government of Elizabeth, in the exercise of powers 
committed to her by the legislature, was not cha* 
Facterized by rigidness. It happened about the 
close of that Queen's reign, when she had the mor* 
tification to discover that her courtiers turned their 
eyes towards the rising sun. Evers went to Scot^ 
land for the purpose of intrigue, and he was de- 
tected : Yet, while he might legsdly have been 
punished for leaving the kingdom without a li* 
cence, he suffered imprisonment for merely having 
solemnly denied that he had been at the Scottish 
court. Whether his confinement was long con^ 
tinued does not appear ^/ 

** There was," says Mr. Hume, " a species of The spedes 
ship-money imposed at the time of the Spanish in-ney^/°t^ 
vasiori. The several ports were required to equip l^*^*^ 

■^ ■■• i * imposed by 

Elizabeth 
* Hume has quoted Bitch's Mem. vol. ii. p. 508. in support of his at the time 

statement: but it would have been better to have gone to Birch's °( ?? ^P*' 

 Disti inva* 

0wn authority^ which is the following passage of a letter from the gjoQ^ 

Secretary to Sir R. Wiiiwood then in France^ regarding the Scotdi 
ambassadors : — ^' Some small requests they made for Sir William 
Evers^ who is in prison^ for coming secretly to see tHe king in Scot- 
land, which he afterwards abjured when the contrary was ^in, and 
so only imputed to him in that respect joro delicto** Winwood's Mem, 
vol. i. p. 524. See a very characteristic letter of James, in regard to 
the intrigues in which Evers was concerned. The English began to 
^ lyiiuch discontented with Elizabeth'? government. Birch, lb. et jrj. 



278 INTRODUCTION. 

a certain number of vessels at their own chargef 
and, such was the alacrity of the people for the 
public defence, that some of them, particularly 
London, sent double the number demanded of 
them/' In other words, the sea-ports, animated, 
like the rest of the nation, with zeal for the public 
defence at such a crisis, volunteered ships and 
men *. It does not appear that any compulsive 
means were attempted, and it cannot be denied 
that, if ever a case could justify an illegal mode 
of calling out the resources of the country, it was 
the one in question, when an invasion, which threat- 
ened every thing valuable in existence, was daily 
apprehended. At such a crisis, such as do not shew 
alacrity in the public defence, may \)e considered 
concealed enemies. And, at that period, as it was 
ships and men, not money, that were required, so 
all classes volunteered their services. Surely, there- 
fore, it would be a poor return for that noble spint 
which baffled the attempt of the enemy, and preserv- 
ed for their posterity so ^lany blessings, to cast oblo- 
quy upon conduct that ought to endear their me- 
mory to us, as if they had sanctioned an illegal tax ; 
or to liken a measure which, though imperiously 
called for, was yet voluntary, to a proceeding by 
the prince, that arose from a determination to 
overturn every constitutional principle of govern- 
ment, by raising money without the intervention 
of the legislature. — In I6OI, the city of London, 
on an apprehension of afresh attempt by the Span- 

!v  
* Maidand's History 6f London. 



INTRODUCTION^ 8^9 

isLtdSf again raked men for the public defence, and 
fitted out a certain number of gallies — conduct for 
which they received the royal thanks t. It may 
be imagined that, possibly, the city might not, on 
the last occasion, have been so forward, had it not 
•been for their secret conviction of the overwhelm^ 
lug influence of the crown, but, as they maintained 
at least the appearance of volunteering, while they, 
with the rest of the kingdom, knew that any com- 
pulsory demand of the kind was unconstitutional, 
it must be admitted, that they reserved their right to 
l^ist any thing of the kind, whenever they per- 
ceived that they could do it with effect. The grand 
constitutional limits to the prerogative at least, stiU 
remained unaltered in the estimation of all men. 

" New-year's gifts were expected at that time,*^ New-yew' 
says the historian, <*from the nobility, and from ^' 
the more considerable gentry/' In support of this 
statement, he quotes, from Strype, an account of 
new year's gifts to Henry VIIl. in the year 1632* 
But, had that very document been examined, it 
must have satisfied him of his mistake. The value 
of the whole gifts amounted to L. 792, 10s. lOd^ 
^d the number ofthegranters was thirty-eight, pf* 
whom twenty-four were ecclesiastics. Had such 
gifts been expected from all the nobility, we should 
have found all their names in the list ; yet it con^ 
tains the names of fourteen laymen only, and> 

. t Maitland's History of London^ p. 171. They seem to have been 
adventuring with the Queen in fitting out vessels^ and to have acqidr- 
ed a good share of the booty. Strype's Annal8> vol. iy. p. 120. et seq. 
regarding the carrack taken in 1592. 



280 INTRODUCTION. 

of these, just seven were peers. . The fact is, that 
new year's gifts were then in fashion ; and that those 
who depended upon the court, or desired its pa^ 
tronage, embraced that method of testifying respect 
for their master; while, if they did not always obtain 
similar presents in . return, which however appears 
to have been the case, they expected something, m 
another way, infinitely more valuable. According- 
ly, of the seven commoners, whose names as donors 
appear in this list, one was master of the rolls, and 
another was "Hasilwoodof the receipt*." But what 
sets this matter completely at rest, and evince^ how 
readily the historian caught hold of every insulat- 
ed circumstance which seemed to afford a basis for 
his theoretical view of the ancient English govern- 
ment, is £^n original document in the British muse- 
um, being a long roll of vellum, signed by Eliza* 
beth in three difiterent places, which contains an 
exact account not only of all new-year!s gifts to the 
queen, bpt of those by her, in the eighteenth 
year of her reign. Those to whom gifts were 
made, were ladies of quality, maids of honour, 
and other ladies, statesmen, noblemen, bishops, and 
gentlemen, including those of the bed-chamber. 
The presents were in plate, almost all gilt, and the 
weight of the whole was 51095 oz. On the other 
side of the roll is a list of gifts to the queen, and 
these are by the identical individuals to whom she 
had made them. The gifts to the sovereign were 
in money, and the whole amount was L. 10^2, I6s. 

* Strype's Ec. Mem. vol. i. p. 137. 



INTBODUCTIONr. 281 

8d. which, I presume, would be dbout the value of 
the plate. In short, this mighty affair, from which, 
amongst other things, Mr, Hume infers, that " the 
inventions were endless which arbitrary power 
might employ for extorting money,'* turns out to 
have been a mere reciprocity of politeness and 
kindness between the monarch and the principal 
subjects who had access at court ; and the lattef 
just appear to have given, on those occasions, the 
price of what they received, while those mutual fa- 
vours were calculated to secure fpr them benefits 
of a far higher kind *. 

" The legislative power of parliament,'' §ays Mr. Power of 
Hume, " was a mere fallacy^ while the sovereigii tX^^^ 
was universally understood to possess a dispensing ^*^ 
power, by which all the laws cQuld be invalidated' 
and rendered of no effect. The exercise of this 



* Ayscough's MS. Brit. Mus. No. 4827^ entitled thus> ^' Anno 
fieffu, R^ine Elizabeth. Dedmo octavo. New yeres guiftes geren 
by the Qneene's Maiestie at her IJighness Honor of Hampton Court, 
to theise persones whose names hereafter ensue the ftrst'of January 
the yere aforesaid." On the other side is the tist of presents to her. 
The roll ako contains an account of plfte, some of it in gold, and of 
considerable wei^t^ given in presents on other occasions. 

Mr. Hume has charged Elizabeth witB breaking faith with Raleigh; 
in regard to the expedition undertaken by him and Frobisher in 1692, 
and the prize of the Cairack worth £SOQ^OOO ; for that ber share am^ 
ounted only to a tenths and that^ when the prize was so great, she would 
not be satisfied, and Raleigh earnestly requested her acceptance of 
£ 100,000 in lieu of all demands. But there seems to be a mystery 
in the case. Great part of the wealth had been pilfered > and Raleigh 
appears to have been suspected of unfairness, and to have been impri- 
soned on that account. See all the papers about it in Strype, vol. iv. 
Nos. 81, 83, 83, 84. 85. Cambden, p. 569. His whole conduct was 
censured on the occasion. See Life prefixed to his Hist. p. 5. 



28S INTRODUCTION. 

power was also an indirect method practised for 
erecting monopolies. Where the statutes laid any 
branch of manufacture under restrictions^ the sove- 
reign, by exempting one person from the laws, 
gave him in effect the monopoly of that commodi- 
ty. Thett was no grievance at that time more 
universally complained of than the frequent dis- 
pensing with the penal laws/'-— We shall first 
speak of dispensations from the penal laws, which, 
according to the historian, were so much com* 
plained of. One of the powers annexed to the 
crown, has always been that of pardoning crimi* 
nals and remitting penalties, while the sovereign 
is not legally obliged to prosecute in any particu- 
lar instance* Hence sprung the exercise of ano- 
ther power, which, though illegal, was analogous 
to the undoubted privileges of the monarch — ^that 
of granting dispensations to individuals from the 
p^ialties of certain statutes that were supposed to 
press particularly hard Upon them, (and, from 
the number about apparel, for instance, <^ some of 
them fighting with and cuffing one another," as 
well as those about uniformity, &c. in religion, 
such must frequently have been the fact) that 
they might not be vexed by informers. But one 
departure from law, seldom fails to introduce ano^ 
then In bad times, those of Henry VII. during 
the ministry of Empson and Dudley, and of Mary 
particularly, power to grant dispensations and 
compound for forfeitures, was procured from the 
crown by certain persons, who by that authority 



INTEdBUCTION. 283 

oppressed the people *. This last, however, was al- 
ways held to be grossly illegal, and Sir Edward Coke 
lays it down, «* that all grants of the benefit of 
any penal law, or of power to dispense with the 
law, or to compound for the forfeiture, are con- 
trary to the ancient fundamental laws of the 
realm/' He informs us also, that " it was one of 
the articles wherefore the Spencers in the reign of 
King Edward ll. were sentenced, that they pro- 
cured the king to make many dispensations."' 
.The understanding of people in Elizabeth's time, 
^nd'the general practice of government, may be 
estimated from the following passage in Smith'$ 
Commonwealth. " The prince useth to dispense 
with lawes made, whereas equitie requireth a mo- 
deration to be had, and with paines of transgressing 
of lawes, where the paine of the lawe is applied 
only to the prince. But where the forfaite, as in 
popular actions it chaunceth many times, is part 
to the prince, the other part to the declarat(H*^ 
detector, or informer, there the prince doth dis- 
pense with his part onlyt. Where the crimi- 
nall action is intended by inquisition, (that man- 
ner is called with us at the prince's suite) the 
prince giueth absolution or pardon, yet with a 
clause, modo stet rectus in curiae that is to say, that 
no man obiect against the offender. Whereby, 

* 3d Inst. p. 187. See Coke's Reports^ part 7. p. 63. case of penal 
statutes^ 2 Jac. Hil. From this case^ it appears^ that Elizabeth had 
granted a power to compound. I hope it was a solitary instance, 
and the judges condemned it. 

f Smith's Commonwealth^ B. ii c. 4. 



284 iNTROUUCTioir. 

notwithstanding, that he hath the prince -s pardon; 
if the person offended will take upon him the 
accusation (which in our language is called the 
appeale) in cases where it lieth, the prince's pardon 
doth not serue the offender.*' With regard to 
dispensations which laid any particular branch of 
commerce or manufactures under a restriction, 
they could not be too much reprehended, and 
parliament itself had early exerted its powers to 
prevent so great a grievance. *? In the 50th of 
Edward III." says Coke, ^* Richard Lions, a mer- 
chant of London, and the Lord Latimer, were 
severely sentenced in parliament for procuring li- 
censes and dispensations to transport wools *.*' 
On the subject of monopolies, in general, we 
shall only observe in passing, that they were 
carried in Elizabeth's time to a monstrous height, 
and that they were clearly illegal ; but that Mr. 
Hume has not been fortunate in an instance 
adduced by him to exemplify the effect of 
dispensations from a law that laid any particu- 
lar manufacture under restriction. A statute 
passed in 1576, prohibited goldsmiths from selling 
articles under the fineness of twenty-two carrats. 
An individual, however, had, long anterior to thp 
act, inanufactured certain articles of a lower stand- 
ard ; and, as the statute threatened him with ruin, 
the Queen granted him a dispensation for the 



* 3d Inst. c. 86.— Also Rot. Pari. 60 Ed. iii. np. 17 and ^8.^ vol. v,. 
p. 323 ancL 326. These both directly strike against monopolies^ and 
dispensations of all kinds^ and the first does also against impositions 
•n merchandize^ without an act «f Parliament. 



INTRODUCTION. S85 

s4le of the pairticular articles which he had prepar- 
ed before the passing of the ^ct^ and which are 
specially described in a scliedule annexed to the 
patent *. This was illegal ; but not such as could 
excite any considerable discontent* 

** But, in reality," says Mr. Hume, " die crown PwcUma, 
pdfdsessed the full legislative power by means of 
proclamations, which might affect any matter 
even of the greatest importance, and which the; 
Star-Chamber took care to see more rigorously 
executed than even the laws themselves. The 
motives for these proclamations were sometimes 
frivolous and even ridiculous. Queen Elizabeth 
had taken offence dt the smell of woad, and she 
issued sui act pirohibiting any from cultivating that 
useful plant. She was also pleased to take offence 
at the long swords and high rufis then, in fashion. 
She sent about her officers to break every man's 
sword, and clip every man's ruff which was beyond 
a certain dimension. This practice resembles the 
method employed by the great Czar Peter to 
make his subjects change their garb." This is a 
very extraordinary statement* The legislature 
had conferred a certain: power upon the throne in 
the time of Henry VIII. to issue proclamations, 
which, to a limited extent, were to have the effect 
of. laws; but the power was withdrawn in the 
next reign, by the authority that conferred it, and 
no one ever ascribed to the prerogative of itself, 
any right to alter the laws of the land. With re- 
gard to the instances referred to by Mr. Hume, 

. ^ Bymer's FgedL toL xv. p. 756. 



286 nrrEODUCTioN, 

they do not warrant his statement. Elizabeth 
deeming the smell of woad a nuisance, because 
sdie could not herself endure it» interdicted the 
cultivation of the plant; but parliament com- 
jdained of the proclamation, and it was instantly 
recalled •• As for the others, they may be sup- 
posed too ridiculous to require any remarks, lunce 
people might not choose to impugn, the illegal ex- 
ercise of the royal power on such trivial occasions^ 
and yet, upon examination, the matter will appear 
in a very different light. It was the practice of that 
age for people not only to go about with- remarka- 
bly long swords, and to wear them in a threaten- 
ing manner, but to carry a species of pocket- 
pistols called daggs, and to wear, besides, privy 
coats or doublets of defence. Thus arrayed, they 
disturbed the public peace, quarrelling with, and 
making frays upon, the unarmed. The quiet pairt 
of the community complained, and the Queeu is- 
sued proclamations prohibiting the use of privy 
coats, &c. as well as daggs and similar weapons, 
which, she well observes, " in time of peace were 
only meet for thieves, robbers, and murderenu'' 
She enjoined, at the same time, that the swords 
should be reduced to a more moderate length, not 
exceeding a yard and half a quarter^ a size suppo^ 
sed to be less formidable to the peaceftd ; and that 
they should not be worn in the " hectoring^ way, 
then in fashion. It must immediately occur to 
the reader, that, had no statute devolved upon the 

* D'Ewes, p. 65S^ 6^. Townsend's Jaamijs^ p. 250. 



IKTRODUGTION*' 287 

executive the right of correcting such anevil, it 
belonged to the Queen as conservator of the pub<* 
lie peace; but parliament had not been so in- 
attentive to the general safety, for it had provide 
ed laws against going armed/ by which penalties, 
such as forfeiture of the arms, fine, and imprison* 
ment, were imposed upon the guilty. EU^aUeth^ 
therefore, proceeded upon powers vested in the 
throne by the legislature^ and which subsist at this 
day. The proclamations were founded on statutes 
iT^hich were specially quot^*, and were perfectly 
legal as well as expedient Sir Ediward Coke ob- 
serves, that such writs might be devised for the 
better execution of the statutes ; and then says em- 
phatically, in speaking of this subject, ^^ Note, pro- 
clamations are of great force when they are 
grounded upon the laws of the realm t.** Nor 
was it she who sent about officers to measure the 
swords, but the mayor of London, who, in carry- 
ing the proclamations into effect, sent select citi- 
zens to the several gates to ascertain whether they 
were obeyed t> Far from censuring this proceed* 
ing, we oi^ht to mark it with approbation.— The 
case of the ruffs is more questionable in law, and 
luckily also in point of fact. It was the mistake 
of those times for the legislature to interfere with 
matters that ought to be left to the regulation of 
individuals, and many statutes had, from time . to 
time, been devised against excess of apparel, 

* Strype's Annals^ vol. ii. p. 603^ et seq. 
. f 8d Inst. p. 162. See ch. 73^ about going or riding armed. 
J Stowe't Swv.ey by Strype. Temporal Government^ vol? ii. p*^ 441* 



288 IJiTRODUCTION. 

whichi it was imagined^ tended to impoverish the 
nation, arid draw after it a train of evils *. Dur- 
ing Elizabeth's reign, parliament did not allow 
this subject to escape its notice, but passed three 
19.WS against that supposed mischief, while several 
bills were rejected f. In conformity with the 
laws, the Queen issued proclamations^ in which 
she threatened to exact the penalties ; but, as none 
of the statutes entitled her to meddle with the 
ruffs, so there appears to be only one authority 
for the story about them, and that a questionable 
one — Howes, the continuator of Stow; Accord- 
ing to that writer, the ruffs began to be worn ex- 
ceedingly high, and foreigners ridiculed the fa* 
shion as barbarous: To prevent this imputation, 
as well as the offence to the eye, the Queen sent 
about grave citizens to measure that ai'ticle of dress, 
and curb the licentious use of it |. If Howes be 



* 3d Inst. ch. 9^. 

t D'Ewes^ p. 134^ 188^ £94. Th€se laWs had become very yexli-> 

tious^ and therefore by 1 James L ch. 26, they were all abrogated* 

S Inst. c. 95. 
I Howes mentions this in his Life and Raigne of James I. in hag 

cx>ntinitation of Stow's Annals^ p. 869. After saying that the old English 
weapon was the sword with the buckler^ he says that this continued not 
long ; ^^ for shortly after began long tucks and long rapiers^ and he was 
held the greatest gallant that had the deepest ruffe and longest rapier.' 
The offence to the eye of the one^ and the hurt unto the life of the sub- 
ject that came by the other, caused her majesty to make prodjanation 
against them both, and to place selected grave citizens, at every gate, 
to cut the ruffes, and breake the rapier's point of all passengers that 
exceeded a yeard in length of their rapiers, and a nayle of a yard in 
depth of their ruffes." He says that the English called the rufl^ the 
French fashion ; but that the French disclaimed it, calling it the Eng-- 
lish monster. Now^ in his Annals, Strype gives a partieular account 



INTRODUCTION. , 289 

correct, the acquiescence of the people may easily 
be accounted for, without even supposing that they 
connived at such a usurpation upon their privileg- 
es. When the royal proclamation had been issued, 
the common council applied to the throne for a 
mitigation of the laws; and, as this was granted, 
it is possible that Elizabeth might, at their request, 
consent to relax the rigour of the statutes, on con- 
dition of their restraining the offensive size of ruffs ; 
and that those who were obnoxious to punishment 

of the proclamations about the arms^ which are grounded upon sta^ 
tutes; and^ in his edition of Stow's Survey^ which^ considering the ac^ 
curacy both of the original author and the editor^ we must conceive 
to be correct^ it is expressly said that the mayor^ out of his sense of 
official duty^ sent the citizens to different quarters of the city to inspect 
the swords. Many accidents and quarrels had happened. There is, 
however^ no mention of ruffs either in the account of the proclamations 
about apparel given in the Annals, or in the Survey, while it is parti- 
cularly mentioned in the last that the common council of London 
petitioned the Queen to relax the rigour of the st^ttutes, as many in- 
formers were abroad vexing the people by prosecuting for the penalties, 
&c. lb. Now it is inconceivable that such an omission should have 
occiured ; and, with r^ard to another authority quoted by Mr. Hume, 
Townshend's Journals, it has not the most distant allusion to such a 
subject. Sir R. Cecil, in announcing the recalment of monopolies, thus 
addresses the house humorously, but in bad taste, " That you may 
eat your meat more savoury than you have done, every man shall have 
salt as good cheap as he can buy it or make it freely, without danger 
of that patent which shall be presently revoked. The same benefit 
shall they have which have cold stomachs, both for aquavitcB, aqua 
eomposita, and the like," && After proceeding in this way, he says 
'^ l^hose that desire to go sprucely in their rufis, may with less charge 
than formerly accustomed obtain their wish ; for starch, which hath 
been so much prosecuted, shall now be repealed." Townshend's Joum. 
p. S50. D'£wes,p. 652, 653. Surely this does not support Mr. Hume's 
statement. Nay, it does the reverse ; fgr if Elizabeth had really taken 
such offence at the size of the ruifs, the secretary would haye hinted 
that he hoped gentlemen would not wear them too high. 
VOL. I. U 



290 INTRODtJCTfON. 

hy staiute-k>¥ for excess o£ apparel, (such only 
would be likely to wear uncommon ruffs,) would 
be {Satisfied to suffer in that respect, when they 
found themselves relieved from the legal penalties 
in another. But, indeed, this is a point scarcely 
Worth investigation ; as it would not be any great 
proof of slavishness in the people that they were 
above contesting a triiSe of this kind with a be- 
loved monarch, whom they, with the rest of Eu- 
V rope, considered the bulwark of the protestant 
cause i and, unless it be supposed that the historian 
could have produced something more important to 
justify his general statement, few will be inclined 
to adopt his view of the government in that age. 
Stopping Stopping the course of justice by particular 
of jiiSL warrants, is reckoned by Mr, Hume amongst the 
lJ^^" abuses of those times, and one of the strongest 
""*^ proofs of arbitrary power : He says also, that parlia- 
ment, in the thirteenth of the Queen, praised her 
iTor not imitating this practice, which was usual 
amongst her predecessors ; but he has scarcely 
done j ustice to his authority. In those days, the 
speaker of the Commons, when presented to the 
Sovereign for his or her approbation, used to make 
a fulsome oration upon the ex^cellency of Uie pre- 
sent ruler : high compliments passed on both sides, 
and abuses of former times were brought forward to 
form a contrast with the felicity of the present. 
In the course of his harangue, the speaker, on the 
occasion alluded to, in the Idth of Elizabeth, ^* said 
something in commendation of her inajei^ty,whohad 
given free course to her laws, not sending or re* 
quiring the stay of justice as heretofore sometimes 



INTRODUCTION. S91 

hath been by her progenitors used. Neither hath 
she pardoned any, without the advice of such be- 
fore whom the offenders have been arraigned) and 
the cause heard *." The historian says> that ** tlie 
Queen, in refraining from the practice^ was very 
laudable. But she was by no means constant in 
this reserve. There remain in the public records 
some warrants of hers for exempting particular 
persons from all law-suits and prosecutions ; and 
these warrants* she says, she grants from her royal 
prerogative, which she will not allow to be disput- 
ed.*' 

This abominable practice early attracted the at- 
tention of the legislature, and is expressly provided 
against, not only by Magna Charta, but by other 
statutes. Nor were the laws on this head consider- 
ed a dead letter ; as courts of justice had repeatedly 
adjudged the warrants to be void t. Mr. Hume has 
rfefei'red merely to the warrants themselves, which 
neither shew the circumstances out of which they 
emerged, nor the consequences with which they were 
attended ; add he holds that, because the queen in 
common form declares, that she will not allow her 
commdnd to be disputed, these warrants could not 
be impugned ; but, had he consulted Coke's Insti- 
tutes upon this point, he would have discovered 
that, not only in early reigns, but in those of Hen- 
; ry VIL and Henry VIII. and even of Elizabeth 
herself, these warrants had been resolved by the 



^, p. 141. See those oratiohs generaliy za to the strain of 
tiiem, as well as addtessei^ to the speaker. 

t ad Inst p. 6«. Ste also Stat 5 £. 11. c. 3S. 2£d. IIL e. 8. 
14 £• in. St 1. c. U. 11 Rich. U. c. 10. 



292 INTRODUCTION. 

judges to be against law, and the sheriflFs had been 
amerced for not executing the writs. Nay, it is 
very singular, that one of the three warrants refer- 
red to by Mr, Hume, is also specially referred to by 
Sir Ed. Coke, as having been adjudged void *. 
MoBopoiiei. 'pjjg great grievance of Elizabeth's reign was 
monopolies. — When an individual, by applying ta- 
lent, time, and industry, to any particular object, 
has made a discovery, there seems to be no way 
so well calculated to remunerate him without in- 
jury to the community, as to grant him the exclu- 
sive right to the benefit of the invention for a certain 
term of years. This principle was early understood ; 
but Elizabeth, availing herself of it, granted exclu- 
sive patents for ordinary manufactures, either as 
gifts to her coui'tiers, or as a mean of procuring mo- 
ney for the crown ; and the whole nation sensibly 
felt the effects of such a system, which was not only 
against the fundamental laws of the realm, but had 
been often adjudged to be so, even in parlia- 
ment, as well as in the ordinary courts of jus- 
tice!. In the course of Elizabeth's time, the 
evil swelled to that magnitude, that the people 
at large bitterly cried out against it, and though 
parliament adopted language on the occasion 
little consonant to the public spirit of that as^^ 
sembly in the former parts of the same reign, the 
ministers of the Crown, with the Queen herself^ 

* Mr. Hume has referred to three different places of the 15th vol. of 
Rymer's Feed, for such warrants by Elizabeth^ and the second is p. 
708. Now^ the warrant is in favour of Hitchcocke> and this is cited 
by Coke as having been condemned. Sd Inst p. 56. 

t 3 Inst. ch. 85. A new statute against them was passed in the 
next reign^ 21 J. I. c. 3. when the evil had got very high. The stan 
tute bears to be a recc^nition of ancient laws. 



INTRODUCTION. 293 

perceived it to be full time to yield to the public 
voice. Sir R. Cecil, when he announced to the 
Commons her Majesty's purpose to reeal the pa- 
tents, complained that " Parliament matters were 
ordinarily talked of in the streets." " I have heard 
myself/* says he, " being in my coach, these words 
spoken aloud — « God prosper those that further the 
overthrow of monopolies. God send the preroga- 
tive touch not our liberty/ — The time was never 
more apt to make ill interpretation of good mean- 
ings. I think these persons would be glad that 
all sovereignty were converted into popularity* ." 
Mr Hume has justly remarked, that, had the sys- 
tem of monopolies been continued, England would 
have contained at present as little industry as Mo- 
rocco or the coast of Barbary ; but he ought to 
have seen, at the same time, that, since such a spi- 
rit was abroad, it would have required a band of 
Janizaries to have supported the throne in such an 
unconstitutional proceeding, Elizabeth herself, po- 
liticly pretended to have been misled, and ex- 
pressed the utmost indignation against the paten- 
tees, vowing vengeance upon them for their crimes, 
and solemnly protesting, with an appeal to heaven, 
that she never had granted one patent, which she 
did not believe to be conducive to the public goodt. 
Some of the patents were then remitted to the 
courts of law, by which they were condemned, and 
made void as illegal t* 

Wardship, as one of the feudal incidents, it is Wardphip* 

* D'Ewes, p. 653 ; but see p. 652. 
+ See her speech in D'Ewes, p. 659. 
X 3d Inst. c. 8^. . 



094 INTRODUOTIOK. 

unnecessary to describe, because every reader of 
intelligence is acquainted with it It has been 
generally regarded as a sad grievance of former 
times ; but, in my opinion, the point may admit ot* 
a doubt. They who suffered under it, possessed 
advantages of the highest kind over the rest of the 
community ; and this was just one oi the conditimt 
upon which they held so eminent a station, while 
it possibly was a mean of preventing the aristocra- 
cy from acquiring the most pernicious influence in 
society, by accumulations during the in£incy of 
heirs. As society improved, wardship was proper* 
ly abolished, because the other ranks had acquired 
such a standing in the community, that they could 
form a counterpoise to the aristocracy. In short, 
it was just a species of tax upon property ; and we 
may observe, that the wards of the crown had bet- 
ter treatment than those of subjects. The right oi* 
giving the ward in marriage was one of the condi- 
tions of the holding ; but the resistance of the 
ward was only attended with a definite pecuniary 
forfeiture. 
^^r^f ** None of the nobility,*' says Mr. Hume, 'v could 
marriageof marry without permission from the sovereign. The 
ty. ^ ' queen detained the Earl of Southampton long in 
prison, because he privately married the Earl of 
Essex's cousin/' With the exception of wardship, 
which applied to other immediate vassals of the 
crown as well as the nobility, I know of no law 
that permitted the sovereign to interfere in those 
matters. But, with the Tudor family, the nobility^ 
who began to decline in influence in the comrauni* 
ty, became attached by many ties to the court, and 



it was usual with theca ta oonsuiUi tl^e nu^uurch in 
dte gr^iad affair of their majriage. This sprung fro^n 
afeeling of interest, a desire of patronage, not from 
any notion of right in the crown to interppse in 
such ai&irs, and the no^^obsecvance of thi^ prac- 
tioe spears to have provoked the royal displea- 
sure, which, I presume, skewed itself in banishing, 
or debairing, the parties from court. Camden in- 
forms us, that Elizabeth resented the conduct of 
Southampton, in privately marrying without con- 
sulting her, and took deep o^nce at Essex, for ap- 
pointing him master of the horse contrary to her 
€»^ders ; but the authority for the statement about 
the imprisonment, is the following passage in a 
letter by Essex : <* Was it treason in my Lprd of 
Southampton to marry my poor kinsw(»nan, that 
neither long imprisonment^ nor any punishment be^ 
sides, that hath been tmud in like cases, can satisfy or 
appease * V* What that punishment, besides impri- 
sonment, was, except the loss of the royal favour 
and banishment from court, I cannot compre- 
hend. But we may observe, that it does not ap- 
pear that Southampton was ever prosecuted, in any 
court of justice, even the Star Chamber ; so that 
his case affords no proof of a right in the crown to 
laeddle with such matters t. His imprisonment^ 
however, admits of an easy solution. 

* Birch's Memoirs^ vol. ii. p. 479. 

t The case of Lady K. Grey and the JSarl of Hertford appears to 
«app<;xrt the te^. Elizaheth was very jealous of competitors for the 
crowA ; and when the Earl of Hertford priyately married Lady K. 
Grey oi the hlood royal^ she adopted very rigorous proceedings^ which 
were cconmonly condemned^ and yet she did n^t allege the clandestine 
mamikge m the cause, Hertford was allowed a limited time to prove 



396 INTRODUCTION. 

The openings for talent and enterprize in that 
age, were so extremely limited, that young men 
of the first families entered into the service even 
of subjects, while they who had the prospect of 
the royal countenance eagerly crowded to court. 
The treatment which servants were then exposed 
to, however, is revolting to our ideas : The sons of 
distinguished families could submit to personal 
chastisement. Nor was this a matter which could 
be remedied by law, because submission was volun- 
tary. Those servants might easily have cast off their 
bondage, but they must have dismissed with it all 
hope of promotion, while what was common, and 
deemed a necessary ordeal through which enter- 
prise passed to an eminent sphere in the state, re- 
flected no disgrace upon the individual. Cour- 
tiers were also under a rigid discipline, and con- 
finement in the Tower was a species of punish- 
ment to which they were exposed. Sir Walter 
Raleigh was imprisoned three months for debauch- 
ing a maid of honour, the daughter of Sir N. 
Throckmorton, whom he afterwards married ♦. I 
presume that Southampton suffered as a courtier, 
and that he quietly submitted from the hope of 

his marriage ; but he failed to bring evidence within the period^ and 
having passed through some doort of the prison to visit the lady^ he was 
sentenced by the court of Star Chamber for debauching a virgin of the 
blood-royal in the Queen's palace, for having broken prison, and hav- 
ing abused her a second time. His defence was, thai he was marriedU 
Cambden, p. 389. 

* See his Life. Birch's Mem. vol. i. p. 79. The stat. 33 H. VIII. 
c. IS. against striking in the king's palace, excepts out of it, noblemen 
and others who correct their servants with their fists, or any small staff 
or stick. Sect. 6. 



NTRODUCTION. 297 

regaining her majesty's favour, and with it, ho- 
nours, place, and other rewards, to which he 
eagerly aspired. , 

Purveyance was reckoned one of the grievances Purvcyweet 
of that age ; and it will be proper to give some ac- 
count of it. Originally, the King's household 
was provided with necessaries from the royal de- 
mesnes; and the deficiency was supplied by a 
constant market kept at the Court-gate. As this 
was discontinued, purveyance began. At first, 
however, nothing could be lawfully taken without 
the owner's consent, the purvejrors being merely 
caters employed by the Court. But, acting under 
the royal authority, they, at times, abused their 
office, by not sufficiently consulting the will of the 
sellers. The Legislature was not inattentive to 
the evil, while it sufficiently regarded the comforts 
of the Sovereign, who, in his progress through the 
kingdom, in ages when, from bad roads, &c. there 
were so many impediments in the way of quickly 
transporting provisions, must have often had the 
greatest difficulty in procuring the necessaries of 
life, and there had been no fewer than forty- 
eight statutes passed on the subject. By the 
early statutes, the sale to the purveyors was vo- 
luntary; but, by later ones, those officers, pro- 
vided they had a commission under the great 
seal, were entitled to take certain articles for the 
Household, at prices which should be fixed by the 
constables, or other discreet men in the neighbour- 
hood, who were first duly sworn to do justice to 
both parties. In spite of all the forty-eight sta- 
tutes, purveyance was abused by the officers, whom 



1^8 UfT&OJDLlXCTIOX* 

Elizaibeth heiself, ia ittdignatiQii* caUed Iwpes } 
and ahe expressed aa inteaticm of subatitutiqg fow 
the practice, some other arrangement K 
p^rweiitiog The historian remarks, that ^ it ia no wonder 
the Queen, in her administration, aluopld p9^y ^ 
little regard to liherty» yhile parliament itself, m 
enacting laws^ was entirely ne^igent of it.'' 
He then condemns the persecuting stfitut^ 
which were passed against Rtpists and pun** 
tans, as extremely contrary to the genius of 
freedom; and observes, that ^< their conferring 
an unlimited supremacy on the Queen, or, wha|; 
is worse, acknowledging her inherent right to it, 
was another proof of their voluntary servitude/* 
In the preceding chapter we have had occasion to 
speak of the supremacy, and it will be perceived 
from it, that Mr. Hume has not taken a correct 
view of the matter. It is true that Elizabeth af^ 
fected to have derived from it a discretionary 
power of regulating religious matters; but she 
confined her government within the pale of the 
laws. Sir Edward Coke proves that the supre- 
macy was always vested in the crown of Engls^nd. 
But his grand object was to vindicate the indCf 
pendence of that country on any foreign power* 
After quoting some old statutes, &c. he says that it 

* 2d Inst p. 6^2f et acq. Cambden p. 388. Mr. Hume ny% 
jkhat Elizabeth TictaaHed her navy by purveyanoe dining the first 
years of her reign ; but Cambden^ his authority^ only tells us^ that in 
1561^ ^* she revoked certain warrants which had been issued out for 
victualling the fleets giviug money to the commissioners to buy it 
without burthening her people." lb. The warrants were doubtlen^ 
illegal^ and it is well th^t they were not acted upon. 



IHTHOJPUCTIOKf 999 

was settled " by three other acts of parliament, v«?. 
hy the statute £5th Henry VIII. c 2i; "Wherein by 
authority of parliament it is enacted and declaredy 
(diffeoting their declaration to the king) that this 
your grace's realm, recognizing no superior under 
God but only your grace, hath been, and is, free from 
subjection to any man's laws, but only to such as 
Ihave been devised, made, and ordained, within thJ9 
realm for the wealth of the same, or to such other, 
as by sufferance of your grace and your progeni- 
toxs, the people of thh your realm hccoe taken at 
their free liberty by their own consent to be used 
amongst thern^ and have bound themselves by long 
use and custom to the observance of the same, not as 
to the observance of the laws of any foreign prince^ 
potentate, or prelate, but as to the customed and an- 
cient hows of this realm, originally established as laws 
of the same, by said sufferance^ consents, and customs, 
and none otherwise^ And by the statutes of g^th 
Henry VIII. c. 21. 1 Elizabeth, c. 1. and iJac. c. 1. 
the crown of this kingdom is affirmed to be an im- 
pMerial crown ♦." Having cleared up this point, it 
may be observed, that Mr. Hume, in speaking of 
the persecuting statutes against papists and puri- 
tans, seems to have forgotten the question which 
he was endeavouring to settle— The power of the 
crown in regard to the parliament? for his ac- 
count of what th^ parliament did, unless he had 
fihewn, which he does not pretend to do, that, in 
thJA in^UM^ce, they were obliged implicitly to obey 

*<4th Iiut. p. 34e2. See also 5th pert of RqKNrtfl^ p. 1. Hseq. 



. 



SOO INTRODUCTION. 

the dictates of the sovereign, merely proves that 
the legislature was not actuated by wisdom or 
policy, in imposing their principles by cruelty on 
the people. The same laws might, nay most pro- 
bably would, have been passed under, the purest 
republic ; and, if the presbyterian party had pre- 
vailed, they would have devised still more severe 
statutes against every sect that differed from them, 
while they reduced the power of the crown to a non- 
entity. But because they abused their power, could 
it thence be inferred that they did not possess it ? 
Mr. Hume properly pronounces the law of the 
23d of her reign, " making seditious words capi- 
tal, as also a very tyrannical statute ;" and it was 
no less impolitic, for, independently of all other 
objections, it may be remarked that severity ever 
defeats its object. But the question is, whether 
the statute sprung from such an overwhelming in- 
fluence in the crown over both Houses of Parlia- 
ment, as really deprived them of the legislative 
power, or from erroneous views of policy in them, or 
even from personal attachment to the sovereign ? 
That statute made seditious rumours and words, 
verbally w^tererf, punishable, on the first conviction, 
with the loss of ears, six months imprisonment, 
and a fine of £^00 ; and, on the second convic- 
tion, it was made felony, without benefit of clergy. 
Writing and publishing seditious words, &c. were 
likewise felony, without benefit of clergy. But, 
besides that the offence was to be tried with- 
in a year of its being committed, and proved by 
two witnesses confronted with the prisoner, the 
act was to expire with the life of the Queen. It 



INTRODUCTION, 301 

roay be observed, that the very fact of Elizabeth's 
being obliged to apply to Parliament for protection 
against personal wrongs, together with the cautious 
limitations of the statute, disproves Mr. Hume's 
idea of the unlimited extent of her prerogative. 

He has most justly condemned as tyrannical ^^ <*^ 
the use which was made of this statute in the cases Pcnry. 
of Udal and Penry. The whole proceedings 
against the first were irregular; but, as he had 
attacked the bishops very bitterly, denied the 
church of England to be a church, and held that 
she was destitute of a lawful ministry, sacraments, 
&c. the clergy eagerly drove on the prosecution. 
Udal, however, was not executed, every means 
being in vain taken to prevail upon him to recant, 
and Ijie died in prison *. Udal had refrained from 
any personal attack upon the sovereign, and the 
charge against him was constructive, that he had 
abused the ecclesiastical government, and conse- 
quenjly her Majesty, as its head ; but the case of 
Penry was very diflferent. Not content with the 
most scurrilous abuse of the bishops,^ whom he 
wishel to strip of all their livings, &c. as a troop 
of bloody atheistical soul-murderers, and sacri- 
legious church-robbers, &c. fully- intending to 
reserve their revenues for his own party, not 
satisfied with telling the people that they ought 
not tc wait for authority to establish a pror 
per ecclesiastical government, but to proceed in 
spite oi* prohibitions, he published that her Majesty 
envied her subjects a saving knowledge of the true 

* See tdal's case by himself, in Howel's State Trials. Strype's 
Annals, vdI. iv. p. 21. et teq. Life of Whitgift, b. iv. c 3. Birch's 
Mem. vol. i. p. 62. 



soft INTROBUCTtdK. 



; thftt she wa6 yet anbaptised> while her peo- 
ple remained in infidelity, and stood genendly con- 
demned to hell ; that an honest man could not pos- 
sibly live under her government in any vocation 
'whatever ; that she might as well make a new re. 
ligion as new laws fbr religion *» &c* That this 
language fell under the statute cannot be question- 
ed i but, when a warrant was issued for hii^ ap^re* 
hension, he fled to Scotland, where he remained 
for three years. Fired with additional zeal in that 
country, he at last returned to England with t pe- 
tition to her Majesty, which he intended to bave 
delivered personally; wherein he declares that 
«< he had cause to complain, nay the Lord ani his 
church had cause to complain, of her government ; 
that her subjects were sold to be bond slaves, not 
only unto their affections, to do what they would. 
So that they kept themselves within the compiss of 
established laws, but also to be servants to the Mad 
dfSin (the Pope) and hi^ ordiriancesi ; thai: she 
ought to rank herself amongst those who opposed 
the Gospel j that the practice of her government 
fliiewed if she could hclvd railed ivithout the Gbspel, 
it never would have been established, and that it 
flourished more under her sister's reign thanhers." 
While he thus rails, he shews at the same tme in 
{ilain terms, ihat he desired her concurreice to 
root out every sect but his ol*n f . Tfis also 
was assuredly seditious w^ithin the statute, aid Was 

* Ann. voL iv. No. 07. Life of Wliit. b. iv. C S. 
tLifeQfWlut.b.iT.c.3, 11. Neale^yoLi. p. ^59^#^ 



XKTRQDXJCTIDK. SOS 

qalcolatod: to cli Autib tiie state s but thep it had not 
been p.ublUhedf and.of i^oinse was yet no Ubd. 
Fw bi9 :fof]ner writingg. be cocdd iiot be i^caigned^ 
su» tbe time limited by the statute va3 expiised, and 
l^prefom be was mgiistLy: charged with tbiii which 
^84. be^n. m his custody as yet unpoWshf d» IM 
is said tbait the queen le^etted bis death *{ but 
tbe fury of the prelates exceeded her own. 

<« It was also/' says Mr* Hume^ ^ imputed to 
Fenry by the lord keeper Fuckerio^ that» iu some 
of his papers^ ^ he had not only acknowledged bee 
Majesty's power to establish laws, ecclesiastical and 
civile but had avoided the usml terms of makity^p 
enacting^ decreeing, and ordjiining laws, which im* 
ply/ says he, < a most absolute authority/ '^ Hence 
the author infers that the queen's power was ac^ 
knowledged to be absolute ; but in this, as in othei; 
instances, he only aflfords a proof of the danger of 
forming opinions regarding the laws and opinions 
of any age or country, frcun insulated passages^ and 
particular expressions. In strict constitutional 
language, the sovereign is the fountain of all law^ 
^nd, as it must be known to every one, all ^i^a* 
tutes bear in gremo^ to have been made by him, 
with the advice and consent of the lords spiritual 
9nd temporal, and the commons in parliament asu 
eembled. When, therefore, in the next reign, the 
king pedantically claimed absolute power, he was 
answered that his noti<m was correct, but that this 
absdute power could only be exercised by means 
of his great council the parliament t. In Eliza- 

* Neale, x<SL i. p. 568. 

tSeeHur. M8.Brit.Mtt8.No. TSr.sndNo. l.oftheTol. Are- 
moDBtmiioe ddivered to King James in wriemg, after tbe inhibition to 
t)ie lower House, not to proceed to examine his right to impose da« 

VOL. I. 



304 INTRODUCTION. 

beth's time, no one ever pretended that laws could 
be made by the sovereign without the intervention 
of the legislature, and the very usual terms of mak- 
ingy enacting, &q« ought to have set Mr. Hume 
fight, while it is somewhat inexplicable how the 
whole passage referred to should not bavd had that 
effec^. That portion of the puritanical party to 
which Penry was attached, denied the power of 
the iegislafufe to make laws about religion, while 

ties ttpon goods and merdiandxse; 'vTith Yelverton's speech -against Uie 
light arrogated by the king to impose without an act of the l^isla- 
ture. ' He admits^ that there is a supreme power in the king ; but ar« 
gues that his power out of parliament is controlled by Ills power in it, 
*' Then^*' says he^ " there is no faither question to be made^ but to 
ezamme wher^ the sovereign power as in; this kingdom ; for there is 
the right of imposition. The soyeireign power is i^reed to l^ in the 
idn^. But^ in the king^ is a twofold power : when in. parliament, as 
he is assisted widi the consent of the whole state ; the other out of 
^liament^ as he is sole and singular^ guided merely by his own will ; 
'andif, of these two powers in the kkt^, one is gre^kter than the other» 
and can direct and control the other^ — tba;t is sufrema potestas, the 
jaovere^ power; and the other is subordihaia/* p. 5. He clearly 
psotes; by a vast number of authorities^ that tib^ supreme power is in 
parliament, where only laws, &c. could be in^de, as well as taxes im« 
posed ; then alludes to the conduct of Wolsey, in r^ard to the bene- 
volence attempted by him, and warns others to reflect on his fate ; 
refers to the aot !25 £d. III. against loans, (a dear proof of Mh 
Hume*s mistake as to the act of 2 Rich. II.) and to the law of Rich, 
III. against benevolences ; quotes Bracton*s words. Rex est uhi domi'* 
natur lex non voluntas, and alludes to the melancholy conc^tion of 
France, declaring that there' would be as few parliaments in England 
as there ha^ be^n in that country, were the right of imposing once 
acknowledged to be in the crown. The statutes and authorities ii| 
favour of the liberty of die subject are gone over at great lengthl 
Fortescue is quoted ; Commines referred ta See the same speech in 
Howell's State Trials, vol. iL p. 477. See i^lso Hafcewfll's on th^ 
same subject, p. 407, et seq. See also the case of proclamations^ Id. 
p. 793, et seq», taken from 12 Coke*s Reports, 74. Mich. 8. James I. 
1610. Had Mr. Hume seen it, he would have avoided some ftmda- 
mental mistakes which unfortunately run through his history. 

See also Raleigh's Dialogue between a Counpillor of Stj&te and a 
Justice of Peace. 



INTRODUCTION. 305 

they confidently asserted that they derived a legis- 
lative authority from heaven, which the civil go- 
vernment wa» bound to ratify. When it was ar-^ 
gued against them, that their ecclesiastical govern- 
ment was incompatible with the civil, they plainly 
avowed, that, if such were the fact, the ciyilgovern- 
ment, which was the result of human policy^ ought 
to be made conformable to the ecclesiastical, which 
was divine, not the ecclesiastical to the civil. Their 
ideas about deposing princes too were equally bold. 
In short, as we have shewn, in the preceding chap- 
ter, from the notes of this very lord-keeper Puc- 
kering, their notions would have necessarily led to 
the subversion of the state, while they, who exclaim- 
ed against the tyranny of forcing consciences, declar- 
ed it, at the same instant, to be the duty of the magis- 
trate to root out every sect which dared to impugn 
their decrees. It was, under this impression, that 
Puckering drew up his observations in Penry's case; 
and his real words, which Mr. Hume has neither 
quoted correctly nor fully, leave no doubt on the 
point. He endeavours to prove from many grounds, 
that Penry is not, as he pretends, a loyal subject, 
but a seditious disturber of her Majesty's peace- 
able government ; and, in the sixth place, he says 
this appears " by so many of his protestations, 
wherein he acknowledgeth her Majesty's power 
only to establish laws ecclesiastical and civil, shun- 
ning the usual terms of making, enacting, decree- 
ing, ordaining laws, which import a most absolute 
authority j as though her Mcytsty had no such 
power, but only a prerogative to establish and ratify 

VOL. I. X 



906 iNTRODUcrrioK. 

suck laws as are made to her hand by the omnipotent 
presbytery J as he and others of his crew haioe boA 
taught and written */' The language of Pucker- 
ing is certainly not commendable, for he might have 

* Strype's Annals^ yoL iv. No. 116 and 117. In giving an aceount 
of the Presbyterian party^ I have abstained from quoting the works of 
their greatest enemies^ as Heylin^ &c. and I am aware that many of the 
leaders began to qualify their langoi^e^ and aflfect great loyalty, — ^when 
they foondtbeirweakness^and were exposed todanger. lamalsoawar^^ 
that, as Puckering, in his judicial capacity, opposed them, it may be ar« 
gued that his testimony ought not to be relied on ; and therefore to shew 
his correctness, I give the following passage from the works of the lead- 
ing man, Cartwright, which will speak for itself. " It is truej" says he^ 
in his reply to Whitgift, '^ that we ought to be obedient unto the duile 
magistrate which gouemeth the churche of God, in that office whychis 
committed unto hym, and according to that eallii^. But it must be le- 
membred, that duile magistrates must goueme it according to the rules 
of €rod prescribed in hys word, and that they, as they are nourises, so 
they beseruaunts unto the churche, so they must remembre to subiect 
them selves imto the churche, to submit their scepters, to throwe 
downe their crownes before the churche, yea, as the prophet fifpeaketh^ 
to licke the duste of the feete of the churche. Wherein I meane not 
that the churche dothe eyther wring the scepters oute of princes' 
handes, or taketli dieir crownes firom their heades, or that it re« 
quireth princes to licke the duste of her feete, as the Pope under 
thys pretence bathe done;" (from this qualification we should condude 
that the first part had some mystical meaning, and that the writer had 
no idea of the Romish arrogance, but what follows, shews that he also 
would have been a pope in a difierent guise ;) '^ but I meane as the 
prophet meaneth, that, whatsoeuer magnificence, or excellence!^ or 
pompe, is eyther in them, or in their estates and oommonwealthes, 
whych dothe not agree wyth the simplidtie, and, in the judgment of 
the world, pore and contemptible estate of the churche^ that tibat they 
will be content to lay downe." 

'' And here commeth to my minde that wherewy th the world is 
nowe deceiued^ and wherewyth M. Doctor goeth about bothe to de- 
ceiue him self and others to, in that he thinketh that the churche 
must be framed according to the commonwealthe, and the churche go^ 
uemment according to the didle gouernment, which is as much as to say, 
^ if a man dliuld fashion hys house according to hys hangings, when 



INVRODUCTIOK. 507 

altujded to the parliament ; but, while it was soothe 
ing to the royd ear, for which this courtier prepar- 
ed it, it was not unconstitutional, and could not be 
misunderstood. The queen acted with, not against, 
the legislature. 

What we have just said, partly explains the Ian- BiugUey'g 
guage of Burghley, when, in a speech to the coun- J^STTnlw 
cil, he prop<Med that the queen « should," to useJJ^^^ 
Mr. Hume's words, " erect a court for the cor- *i«'» <>^«" 
rection of all abuses, and should confer on the 
commissioners a general inquisitorial power over 
the whole kingdom j*' " to proceed therein indeed,'* 
says Burghley, *^ as well by direction and ordinary 

as in deede it i&cleane contrary^ that, as the hangings are made fit for the 
house^ so the commonwealthe must be made to agree wyth the churche^ 
and the gouemment thereof wyth her gouemment : For^ as the house 
is before the hangings^ atid therefore the hangings which come after 
must be framed to the house whych was before^ so the churche being 
before there was anye commonwealth^ and the commonwealth com- 
ming after^ must be fashioned and made sutable unto the churche^ 
otherwise God is made to geue i^aee to man^ heauen to earthe^ and 
religion is made as it were a rule of Lesbia to be applied unto anye 
estate of commonwealth whatsoeuer." 

'' Seeing that good men^ that is to say the churchy are as it were the 
foundation of the worldci it is meet that Ihe commonwealthe^ which kr 
builded upon thdt foundation^ shoulde be framed according to the 
churche> and therefore^ those voyces oughte not to be heard^ this or- 
der will not agree wyth our commonwealthe^ that law of Grod is not for 
oure state^ thys forme of gouemment will not matche wyth the pol<- 
lide of thys reahne/' P. 144. 

The severity of the sect may be estimated^ from what is said in 
p. 68^ 70^ 90^ 100^ &C. in regard to punishments. 2d Reply. In p. 93^ 
he properly approves of the ancient maxim, that as little as poss^le 
should be left to the discretion of the judges. 

Cartwright was apprehended by a warrant from the commissioners ; 
and it was remarked sarcastically by men of note^ that surely the ob- 
ject was to do him honour ! Birch's Manoirs^ voL i. p. 6% This re* 
quires no comment. 



308 INTRODUCTION. 

course of your laws, as also by virtue of your Ma 
jesty's supreme regiment and absolute power from 
whence law proceeded." " This proposal/* says 
Mr. Hume, " needs not, I think, any comment. 
A form of government must be very arbitrary in- 
deed, where a wise and good minister could make 
such a proposal to the sovereign." The minister 
who proposes to overturn the laws of his country by 
an arbitrary act of the chief magistrate, can neither 
be accounted good nor wise ; and, had such an at- 
tempt ever been made, Burghley might himself 
have fallen a sacrifice to his guilty rashness, or 
would, doubtless, on the first change in administra- 
tion, have suffered the fate of Empson and Dudley, 
to whose actions he alluded. But, though the 
whole speech be in the grossest style of adulation, 
I do not conceive that it will be difiicult to rescue 
his memory from this imputation, and to prove that 
he never intended that the sovereign should act 
without the interposition of the legislature* Our 
inquiry too, will throw light upon that statesman's 
plan, which would otherwise be scarcely intelligi- 
ble. The scheme was first developed by the lord- 
keeper Bacon in his address, in her Majesty's name, 
to both Houses at the dissolution of parliament, in 
the thirteenth of her reign. After adverting to 
the state of the country, and shewing that inquests 
were overborn, the guilty acquitted, and the inno- 
cent condemned, and the laws, which were good 
of themselves, made **instrumentis of all injuries and 
mischiefs," by the very individuals who were select- 
ed by the prince to enforce justice throughout the 



i^nrRODuCTioN. 309 

4cingdotn, h^ intimates that there should be a trien- 
nial visitation of all temporal officers and ministers 
by commissioners nominated by the queen, upon 
the principle of the ^sitation of the church, who 
should be authorized " to try out and examine by 
aU good ways and means, the offences of alt such 
•as have not seen to the due execution of the laws, 
and according to the offences so ibund and certifi- 
edj to be sharply punished without omission or re- 
demption *•" The scheme, which the lord keeper 



* D'Ewes, p. 153. We have already brought forward much evi- 
dence regarding the state of jilstice in those times ; but the reader 
may, perhaps^ stiU excuse the following^ taken from the anonymous 
answer to Knox's blast, published in 1559, entitled, ^' An Harborrow 
for faithful subiects," and written by John Aylmer, afterwards Bi- 
shop of London. He shews that the English laws excelled others, 
and particularly the dvil, in respect of the trial by jury in the place 
of racking to extort evidence, a practice which he strongly condemns, 
(another proof of Mr. Hume's mistake on the subject;) yet of the trial 
by jury, he sayis, " But in deede at these dayes it is growen to great 
corruption, and that thorowe one speciall means, or two, which be 
these. If there be any noble man dwellinge in the countrey either a 
duke, a marques, an earle, or baron, he shall lyghtlye have in his re- 
tynewe all the cobbes in the countrey, which be the questmongers> 
and if any matter be touching him, his man, or his frende, whether 
it bee a cryme capitall, or nisi prius, sentdowne for landes; the case 
shall wey as he wil. For his deteynors must nedes haue an eye to 
xny lorde, though they should go to the deuill for it : and so be some 
innocents knyt up ; and some offenders delyuered, some titles of inhe- 
ritaunce lost, against al iustice and right." He speaks then of the 
corruption of sheriffs, and says justly, '' This corruption of it be not 
loked to, will make this order, which was the best that could be, the 
wickedest that can be." N.B. the work is not paged, but see the 
titles. " Against racking," " The Questmongers, &c." on the margin. 
I suspect strongly, from such a state of things, that the trial by jury, 
though warmly esteemed by the high classes, was not at that period, 
much liked by the middling and lower. EUzabeth, therefore, by pro- 
posing such a scheme as the visitation, bespoke respect for the great 



V 



:?ij 



SIO niTBODUCTION. 



had tbiifl intimated at the difloolution of that Par- 
Uamenty he proposed, in the Queen's name, at 
the opening of the next, but he introduced the 
topiq by teUing them, that '< he left it to their 
judgments*,^ Had Elizabeth's influence been 
really so great in parUament as has been imagined, 
she could have had little difficulty in carrying a 
measure which she appears to have so much de- 
sired ; but it struck too forcibly against the power 
of the aristocracy to be listened to, and it never 
was heard of again till about the year 1594, when 
Burghley gratified his mistress by the speech re- 
ferred to. It cannot be imagined, however, that 
he could advise her to attempt a measure without 
Parliament, which she could not accomplish with 
it ; and, therefore, we must presume, that her ab- 
solute power was to be exerted through her grand 
council. Elizabeth was so pleased with the speech, 
that she desired a copy of it ; but the scheme 
seems never to have been thought of more t. 



body of the people^ and a desire to protect them from the power of 
the aristoeracy : But the latter clung to a system which gave them 
such influence. 

♦Id. p. 194. 

t The whole of BurghleyV speech is in the grossest strain of adu- 
lation^ for that celebrated individual^ though a great statesman^ was a 
lliorough courtier, and he does not advise that the thing should be 
immediately attempted. " How the time fitteth now for it," says 
he, " I know not, neither is it meet for me to aspire thereunto." I 
should conceive that, at the councO board, men meet for business, not 
to make speeches, and that Burghley in his general conduct must have 
done so ; but this is a mere harangue without point or immediate 
object, flattering the Queen, yet enigmatical. Strype's Annals, vol. iv. 
No. 164. 



marttODUCTioN. 311 

We have now examined the grounds upon which Sentiments 
Mr. Hume conceived that the English government ^^^ 
bore some resemblance of that of Turkey, as well^^^^ii^ 
as given an account of the particular institutions 
and usages of that period ; and it remains to make 
a few remarks upon bis assertion, that the estab- 
lished principles of the times, attributed to the 
prince such an unlimited and indefeasible power, 
as was supposed to be the origin of all law, and 
could be circumscribed by none. In support of 
this statement, he refers to the homilies which, he 
observes, inculcate absolute obedience ; and thence 
he concludes, that people complained with small 
reason in the next age, *^ because some court 
chaplains were permitted to preach such doc- 
trines; but there is,*' continues the historian, 
<'. a great difference between these sermons, and 
discourses published by authority, avowed by 
the prince and council, and promulgated to the 
whole nation/' Indeed, we must admit, th^ 
there was a decided difference in the cases. The 
homilies against disobedience and rebellion were 
prepared in consequence of, and immediately 
after, the Northern rebellion, when the fears 
of the best patriots alarmed them with the idea 
of an overturn of the state by a religious fac- 
tion, and when, therefore, they desired the assist- 
ance of religion to support the whole frame of the 
civil government, which zeal of a different kind 
would have torn to pieces *. The Queen was not 

^ Strype'g AnnaLi^ ^oL i. p^ 403. 



. 



SIS INTRODUCTION. 

then attempting to subjugate the nation by acting 
without the concurrence of parliament ; but opeoij 
avowed herself its head. In the next age, the 
court chaplains preached up damnation to those 
who pretended to resist the prince in assuming to 
himself the whole powers of the legislature, after 
he had quarrelled with his parliaments : Nor were 
they barely permitted to preach thus, but keenly 
encouraged in that pious undertaking. We have 
already shewn that, instead of that tameness erf* 
spirit which the historian has attributed to the age, 
there was a very numerous party, whose doctrine 
savoured deeply of republicanism, and that their 
writers maintained very bold sentiments about de- 
posing princes. 

The learned author has said, that the English 
were not aware of enjoying any political advantages 
beyond their continental neighbours, and has re^ 
marked, that he has met with no writers that speak 
of the English government as any thing else than 
an absolute monarchy. But, surely, his research 
had been limited, or his inattention great, for proofs 
of this are to be found in most writers of the age. 
Fortescue's work, De Laudibus legum Anglice, was 
printed in Henry VIII's reign, and was then re- 
ferred to by lawyers*, nay was even quoted from 
the bench in Mary's reignt : in 1567, an edition in 
Latin and English was published, and dedicated 
by the translator to one of the judges of the 

* Prolog. Johan. Rastall in laudem Legum^ Anno S Henry VIII. 
to Le Liv. des ass. en temps du Roy Edward III. 

t To shew the meaning of a word, Plowden's Corns. Case of 
Buckley. 1 Ph. & M. vol. 1. p. 125. Edit. 1816. 



INTRODUCTION, S13 

Queen's Bench ; and, in 1599, the translation was 
published alone, with the following title, " a Learn- 
ed Commentary of the politic laws of England, 
wherein, by most pithy reasons and demonstrations, 
they are plainly proved to excel, as well the civil 
laws of the empire, as also all other laws of the 
world; with a lai^e discourse of the difference be- 
tween the two governments of kingdoms, whereof 
the one is only regal, and the other consisteth of 
regal and politic administration conjoined *." Did 
no other document remain, which, fortunately is 
not the fact, thisof itself would refute Mr. Hume's 
notion. We have already referred to Smith's 
Commonwealth, and to Hayward's history, and we 
shall not return to them. Many passages might 
be quoted from various works, published in Eliza- 
beth's time, but we shall content ourselves with 
the following : Aylmer, afterwards Bishop of Lon- 
don, in the tract which he published anonymously 
in answer to Knox's First Blast of the Trumpet 
against the Monstrous Regiment of Women, de- 
fends female government in England expressly on 
the principle of the superiority of the English go- 
vernment, where the laws governed the magistrate, 
not the magistrate the laws. " Well," says he, 
" a woman may not reigne in England : better in 
England then any where, as it shall wel appere to 
him that without affection will consider the kinde 
of regiment : whyle I conferre ours with other as 
it is in it selfe, and not maymed by usurpacion, I 
can fynde none either so good or so indifferent. 

* Biog. Brit, and Chalmers' Big. title Fortesc. 



SH INTRODUCTION. 

The regiment of England is not a mere monarchies 
as some for lacke of consideracion thinke^ nor a 
mere oligarchies nor democratic but a rule mixte 
of all those» wherein ech one of these have or 
shoulde haue like authorities Thimage whereoi^ 
and not the image, but the thinge in dede, is to be 
sene in the parliament hous, wherein you shal find 
these S estats. The king or queue, which repre- 
senteth the monarche. The noble men, which be 
the aristocratic ; and the burgesses and knights the 
democratie. The verye same had Lacedemonia, 
the noblest and best city gouented that euer was ; 
thei had their kings, their senate and Hippagretes, 
which wer for the people* As in Lacedemonia 
none of these could make or breake lawes, order for 
warre or peac, or do any thing without thother, 
the king nothinge without the senate and com* 
mons, nor either of them or both withoute the 
king, (albeit the senate and the ephori had greater 
authoritie then the kinge had.) In like nianer, if 
the parliament use their priuileges, the king can 
ordein nothing without them. If he do, it is his 
fault in usurping it, and their follye in permitting 
it: Wherefore, in my iudgement, those that in 
King Henry the viii. dais would not graunt him 
that his proclamacions shuld have the force of a 
statute, were good fathers of the countri, and wur- 
thy commendacion in defending their liberty.''-— 
** But to what purpose is all this ? To declare, that 
it is not in England so daungerous a matter to 
have a woman ruler as men take it to be." — ** If, on 
thother part, the regiment were such, as all hanged 



INTRODUCTION. 315 

uppon the Kinge's or Queue's wil, aud not iipou 
tiie lawes wrytteu ; if she might decre, aud make 
lawes alone, without her senate; if she iudged of- 
fences according to her wisdome, and not by li- 
mitation of statutes and laws ; if she might dispose 
alone of war and peace ; if, to be short, she wer a 
mere monark, and not a mixte ruler, you might, 
peraduenture, make me to feare the matter the 
more, and the les to defend the cause. But the 
state being as it is or ought to be, (if men wer wurth 
theyr eares,) I can se no cause of feare */' He 
afterwards presents a picture of the wretchedness 
of the French, and compares their condition, and 
that of other states, with the situation of England t. 
Thus much for Aylmer :-»Cartwright, in defend^ 

 An Harborowe for Faitlifal Subjects^ title on margin—'' It is less© 
daunger to be gouemed in £ngknd by a woman than any where els." 

t ^' The husbandman in Fraunce> al that he hath gotten in his 
whole h£e, louseth it upon one day. For when so euer they faaue 
warre^ (as they are neuer without it^) the king's soldiers enter into the 
poore man's house^ eateth and drinketh up al that euer he hath, geueth 
their horse his corn^ so longe as it lasteth^ without paying a farthinge, 
and neuer departeth so long as there is any thing left in the hous. This 
was the maner : but this king bathe amended it with the wurse^ for his 
souldiers come not thither^ but his rakehels thofficers^ which pare 
them even to the bones. The pore man neuer goeth to the market to 
sel any thing, but he paieth a tolle^ almost the half of that he selleth ; 
he eateth neither pigge^ gose> capon^ nor hen^ but he must pay as 
much for the tribute of it there as it might be bought for here. O 
unhappy and miserable men that liue under this yocke. In Italy^ 
they say^ it is not much better ; the husbandman be there so rich^ 
that the best coate he weareth is sacking, his nether stockes of his 
hose be his own skin, his diet and fare not very costly," &c. — '^ In 
Germanic, thoughe they be in some better 'case than thother, yet eat 
they more rotes than flesh," &c.'— >'' Now," addressing himself to his 
countrymen, '^ compare them with thee^ and thou shalt see howe 



316 INTRODUCTION, 

ing his system of Church government, which he, 
of course, calls divine, says, ** the Churche is 
gouerned with that kind of gouernment whiche the 
philosophers, that wryte of the best common- 
wealths, affirme to be the best. For, in respecte 
of Christe the head, it is monarchic, and in respect 
of the aundents and pastours that gouern in com- 
mon, and with lyke authoritie amongst themselves, 
it is an aristocratic, or the rule of the best men, 
and, in respecte that the people are not secluded, 
but have their interest in Churche matters, it is a 
democratic or a popular estate. An image, where- 
of appeareth in the pollicie of thys realme, for, in 
respecte of the Queen her maiestie, it is a monar- 
chic, so in respecte of the most honourable coun- 
sel, it is an aristocratic, and having regard to the 
parliament, which is assembled of all estates, it is 
a democratic *.*' 
Harrison, who published in 1577> gives this account 
' of the Parliament. " This house hath the most 
high and absolute power of the realme ; for there- 

happye thou arte. They eat hearhes ; and thou beefe and mutton : 
thei rotes ; and thou butter, cheae, and egges. Thei go from the 
market with a sallet ; and thou with good fleshe fill thy wallet. They 
lightlye neuer see anye sea fish ; and thou hast thy belly full of it 
They paye till their bones rattle in their skin ; and thou layest up for 
thy Sonne and heir." Id. Title on margin — ^^ How the French Pe- 
zantes bee handled." 

Dr. John Ponet, in " A Short Treatise of Politique Pouuer, and 
the true Obedience which Subjects owe to Kynges," enters upon an 
inquiry into the origin of political authority, its absolute or limited 
nature, and the limits of obedience, and even maintains the right to 
depose and punish tyrants. Yet this doctor was, first, bishop of Ro- 
chester, and afterwards bishop of Winchester, under Edward VI. 

* Reply to Whitgift, p. 35, and also p. 145. - 



INTROBUCTION. 317 

by kings and mightie princes haue from time to 
time beene deposed from their thrones ; lawes ei- 
ther enacted or abrogated ; oflfendors of all sorts 
punished ; and corrupted religion either disannul- 
led or reformed. — ^To be short, whatsoeuer the 
people of Rome did in their cenluriatis or tribun- 
itiis comitiis, the same is and may be doone by au- 
thoritie of our parlemeht house, which is the head 
and bodie of all the realme, and the place wherein 
euerie particular person is intended to be present, 
if not by himselfe, yet by his aduocate or attornie. 
For this cause also any thing ther enacted is not 
to be misliked, but obeied of all men without con- 
tradiction or grudge*." No language can be 
stronger than this ; but, as Mr. Hume has brought 
together every circumstance which could convey 
a contemptible idea of Parliament, we shall make 
a few observations on that point, and produce some 
instances to prove the general spirit that pervaded 
that assembly. 

In the previous chapter, we have traced the Conduct of 

causes of the influence which the crown then en- with the 
joyed in the state; and it remains to say, thatj^j^*^^' 
Elizabeth having had certain powers in regard to |^*J^^; 
religion devolved upon her, objected to the intro- powers and 
duction of bills which tended to abridge her au-^"^ *^^ 
thority ; and, in the course of her reign, even sent 
members to the Tower who disobeyed her injunc- 
tions on this head, as well as some who insisted 

* Harrison's Description of England^ in Holinshed^ vol. i. b. ii. c. 
8. p. 173.—- See PUwden's Corns, title Prerog. regarding the power of 
the Crown. 



918 UfTHOBOCTIOK. 

upcm her marriage^ and her naming a successor, 
&c. * That the proceeding was unconstitutional, 
no one doubted ; and, in the Idth of her reign, 
when she &st attempted an encroachment upon 
the privileges of the Commons, by ordering a 
member to abstain from attendance in his plaee^ 
till he received &rther orden^ the circumstance 
created such a flame in the lower house, that 
she instantly restored the member ; but her popu- 
larity and influence eiuibled her to repeat the 
measure, and even to send the members to the 
Tower, who, not choosing, at such a moment, to 
contest the matter with the crown, submitted to 
the hardship* 

In the year 1566, Mr. Onslow, then speaker of 
the Commons, in his address to the throne at the 
condusion of the session, pronounces a panegyric 
upon the common law. ** For,'* says he, •* by our 
comtmon law, although there be for the prince pro- 
vided many princely prerogatives and royalties, yet 
it is not such, as the prince can take money or 
other things, or do as he will at bis own pleasure, 
without order ; but quietly to suffer bis subjects 
to enjoy their own, wit^ut wrongful oppression, 
wherein other princes^ hy their liberty y do tdke as 
pkaseA ihenu*^-^^* He tells her, that, as a good 

* This stretch of prerogative may be said to hare been as directly 
i^nst the liberty of the subject in his prirate capacity, as contrary 
to the privileges of Parliament^ and^ therefore^ seems to contradict 
what we have said about the power to imprison ; but the fact is^ that 
these members did not try the matter at law^ but submitted to in- 
justice — ^a course^ perhaps^ the most prudent under all circumstances. 
The courts of justice^ therefore^ still remained uncontaminated with 
any precedent contrary to law. 



INTRODUCTION. 319 

prince, ishe was not given to tyranny contrary to 
the laws, had not attempted to make laws contrary 
to order, but had orderly called this parliament, 
who perceived certain wants, and thereunto had 
put their helping hand, &c"* Onslow was, at 
the very time, though prolocutor of the Commons, 
the Queen's solicitor t j and his speech was so far 
from giving ofience, that, while the Commons 
. were reprehended for having trenched upon the 
prerogative, by questioning her right to grant pa- 
tents for monopolies, &c. it was pronounced wise 
and eloquent To smooth down and justify the 
reprimand, the Lord Keeper, in her Majesty^s 
name, tells the Parliament that '' she meant not 
to hurt any of their liberties t." At the opening 
of the next Parliament, in the thirteenth of that 
reign, both houses were informed from the throne, 
that the first reason for calling them, << was to es^ 
tablish or dissolve laws, as best should serve for 
the governance of the realm : << and that, because 
in all councils and conferaices, first and chiefly 
there should be sought the advancement of God's 
honour and glory, as the sure and infallible founda- 
tion whereupon the policy of every good public 
weal is to be erected and built, &c«-— therefore they 
were to consider whether the ecclesiastical laws, con- 
cerning the discipline of the church, be sufficient 
or no, and, if any want should be found, to supply 

* iy£we», p. 115. 

f Id. p. 96. Sc ISl. Onslow alleged^ that, as solicitor, he was not 
fit to have a place in the House^ far less to be speaker. Ib« 
t Id. p. lU. 

4 



320 INTRODUCTION. 

the same ♦." Now, it Avill riot be forgotten, that it 
is chiefly on religious matters that Elizabeth's 
government has been censured, and it has been 
alleged that a divine right on that head was arro- 
gated by the crown. The lord keeper, who de- 
livered the royal address, reminded the parliament 
in no less liberal terms of their duty, in reforming, 
abrogating, or altering the temporal laws. It was 
even treason by an act of that Queen to deny that-, 
parliament had power to determine the succession, 
or other matters regarding the crown. " It were 
horrible to say," observed Mr. Mounson, in that 
very session, " that the parliament hath not au- 
thority to determine of the crown, for then would 
ensue, not only the annihilating of the statute 35 
Henry VIII., but that the statute made in the 
first year of her majesty's reign, of recognition, 
should also be void." " For the authority of 
parliament,** said Serjeant Manwood, on the same 
subject, " it could not, in reasonable construction, 
be otherwise, for who should deny that authority, 
denied the Queen to be Queen, and the realm to 
be a realm +." It was during this session, that Mr. 
Strickland, for having introduced and pressed a bill 
about religion, which was said to be injurious to 
the prerogative, was summoned before the Coun- 
cil, and commanded to attend their farther pleasure, 
and in the meantime not to return to the House ; 
but, as has just been said, this infringement of their 
privileges was taken up with so high a spirit, that 

* p'Ewes, p. 137. t Id. p. 164, ISS. 



INTRODUCTION. 321 

though the ministers affected to defend the restraint, 
the member was restored on the following day*. Mr. 
Yelverton, in arguing for the liberty of the. House, 
and representing the danger of the^ precedent, if 
they did not vindicate their privileges, said, " that 
all matters not treason, or too much to the dero- 
gation of the imperial crown, were tolerable there, 
where all things came to be considered of^ and 
where there was such fulness of power, as even the 
right of the crown was to be determined, and by 
warrant whereof we had so resolved. That to say 
the parliament had no power to determine of the 
crown, was high treason. He remembered how 
that men are not there for themselves, but for 
their countries. He shewed it was fit for princes 
to have their prerogatives ; but yet the same to 
be straitened within reasonable limits. The prince, 
he shewed, could not herself make laws, neither 
ought she, by the same reason, break laws f ." He 
concluded with defending Strickland's bill. Now, 
though one member argues that the House ought 
to petition the throne as the only way to obtain 
redress, not one courtier rose to object to these 
general principles. Peter Wentworth, in the 18th 
of that reign, was committed to the tower by the 
House, for undutiful expressions towards theQueen; 
but though he defended what he had said, instead 
of shewing regret for it, her Majesty interposed in 
his favour, and restored him to his place. Now, it 

* D'Ewes^ p. 175, 176. 

t Id p. 17>5. Liberal speeches, this session, were made by many 
members. 

VOL. I. T 



622 iirritoiiccTioK. 

18 Yemarkabie, that th^ general positions which h6 
laid down, as that die prince must be under the 
law, for the law makes him king, Asa never were 
impugned even by the council \ 

* Wentwortli's speech commences at p. 236, and extends to 5241 of 
D'Ewes' Journal. That ihe reader may be apprised of the irreve- 
rend words spoken of her M^jesty^ upon which he was committed by 
the Houae to the Tower, we shall transcribe wme passages. Hesaya 
*^ that God was, the last Session, diut out of doors ;" but what fell 
out of it, forsooth ? his great indignation was therefore poured upon 
this House, for he did put it into the Queen's heart to revise good and 
idielsftomia laws,". &c* '' It is a dangerous thing in a prince to abuse 
his or her ncAulity and people, and it is a dangerous thing in a prince 
to oppose or bend herself against her nobility and people. And how 
could any prince more unkindly intreat, abuse, oppose hersdf against 
hx nobflity and people thltn ber Msjcsty did the last Pftrliament?" 
N» B« She refosed her assent to certain laws. " Is ibis a just recom« 
pence in our Christian Queen for our faithful dealings ? The heathen 
do requite good for good, llien how much more is it to be expected in 
tCSnktian prince? Afid will not this her Majesty's handling think yon, 
Mr. Speaker, make cold dealing in any of her Majesty's subjects to* 
waid her again ? I fear it will. And hath it not caused many alrea^ 
dy, think you, to seek a salve for the head that they have broken? 
I^'io^estate can stand fdiere the prince will not t)e goTsmed by advicek 
And whatsoeyer they be that did persuade her Majesty so unkindly 
to intreat, abuse, and* oppose herself against her nobility and pieople, 
or commend her Majesty for so doing, let it be a sure token to her 
Majesty, to know them ^or tzeators uid underminors t^^ Mi^^ty's 
hie, and lemove them out of her Migesty's presence and favour." 
P. 239. 

Whoever will read the eixamination of Wentworlh by a Committee 
pi the C^tamons, p« S41. H ^, see p. ^44. wiU be satisfiedj^ that ^e 
ground of commitment to the Tower regarded these and some other 
expressions, and that ^^ the iEine spirit of liberty" which his speech 
breathes, was not the cause. This happened in the 18th of the Queen. 

See Ihe proof of the sjarit of Fttol Wentworth in the 1S«6. p. 188. 
See farther, too, the manly spirit of Parliament in discussing matters, 
notwithstanding several restrictions. P. 130. 

No one dared to answer in the native the constitutional queries of 
Wentworth in the «8th and 99th of the Queen, who thought the H- 
berties of the House infringed. 



Wd b^e p^erhs^^ i^diid eno)[igh^ b£it ds the.leiirii- 
€d historlai!! H^ repieatedfy st^ed thiatt the Eoiglish 
liid lidt (Suppose tbM they ei^i^dyed supelrior piiviiw 
leges to tfeeif n^^hbtmfsy trfe shall farthef observe, 
Isf, iTiat if the pfeo{)le enjoyed f)rivileges, as it is evi- 
detrt they did, it would riot lessen our opinion of 
their enjoyfiaetitSi that they were unac(|aainted 
^th the i#tuation of the continental states^ . and 
thit it wotfld be incumbent on Mr. Hume to prove 
that France enjoyed any thing of the kind. 2dly, 
That the wretched condition of France, governed 
&Ad taixed at the will of the prince, and oppressed by 
foreign militar}% seems to have beenafact with which 
most men werie acquainted, and that proofs' of it not 
only occur in books, but in the journals of Parlia- 
ment. Sir Humphrey Gilbert, in support of thte pre- 
rogative to grant patents, advised the house, in lan> 
guage similar to what was adopted in a future reign^ 
to abstain from such topics, lest " her majesty migfet 
look to her own power, and thereby finding her 
validity to suppress the strength of the challenged 
liberty, and to challenge and use her power any 
way, to 4o as did Lewis of France, who^ as he 
termed it, delivered the crown there out of ward^ 
ship*, which the said French king did upon like oc- 
casion. He also said that other kings had ab^lute 

* Mr. Hume in the body of his history quotes Ais very speech ; 
but he, unfortunately, stopt at the word wardship; and thus over- 
looked the rest of the passage, which might have prevented him from 
taking so erroneous a view of the English government in that age. 
While, too, he alludes to Wentworth's observations on it, he over- • 
looks tlie remarks of another member. 

2 



SS4> IKTRODUCTION. 

p&wer^ as Detimark and Partugat, where, as the 
crown became more free, so are all the subjects 
thereby, the rather made slaves */' This speech 
was disliked, but no notice was taken of it at the 
time. At the next meeting of Parliament, how- 
ever, on a question about the residence of burges- 
ses within the boroughs they represented, a 
member, after stating to the House that it belong- 
ed to them <* to consider of all, and, as occasion 
may serve, to alter, constitute, or reform all things 
as cause should be," alludes to Gilbert's speech 
in the following terms : ** We know that, such as 
have spent their whole time in service, or have 
seen only the manner of government of other na- 
tions, and can tell you how the Crown of France 
is delivered out of wardship, or otherwise tell a 
tale of the King of Castile and Portugal, how 
they, in making laws, do use their own discretion, 
the King of Denmark useth the advice of his no- 
bles only, and nothing of the commons ; or can 
point you out the monstrous garments of the com- 
mon people in some parts of Germany, or the 
mangled commonwealth of the allies, or shadows 
of the great cities, which now are to be seen in 
Italy i surely all those men, except they know also 
our own homes, are not to be trusted to conclude 
for our home afiairs t." Wentworth, on a future 
day, declared Gilbert's speech to be an injury to 
the House, and reprobated that individual in the 
coarsest terms, for his disposition to flatter and 

 Id. p. 168. t D'Ewes, p. 169. 



INTKODUCTION. 325 

fawn upon the prince, comparing him to the 
chamelion, which can change itself into all colours 
save white ; " even so,*' said he, " this reporter 
can change himself into all fashions save hones- 
ty *." No evidence can- be more direct or com- 
plete than this. 

We have now travelled over a vast variety of 
ground, and it must be apparent that, though 
there were some institutions, as the star-chamber, 
&c. not consonant to the genius of a free govern- 
ment, and occasional proceedings of a dangerous 
kind, the grand constitutional principles were 
clearly defined, as well as recognized by the mo- 
narch in the general course of administration t. 



• P. 175. 

t In note D. the reader will find some additional matter upon this 
subject, and a more particular examination of Mr. Hume's statements. 
We have reserved for that note also^ some observations r^;aiding the 
qiinions of the grand reformers on the continent, about dvil liberty^ 
with the sentiments prevalent in Scotland. 

In a note to p. 442. ch. 44. Mr. Hume has made some remarks 
about the practice of addressing and serving the monarch on the knee, 
&C. and says, that Elizabeth's " successor first allowed his courtiers to 
omit this ceremony ; and, as he exerted not the power, so he relin<« 
quished the appearance, of despotism." But I cannot discover on what 
grounds he has paid this compliment to James, who, he himself oon« 
fesses, arretted a divine uncontrolled right in his language, which his 
predecessors had not done. We leam from Sully, that James did not 
omit this ceremony ; for Sully declares that he was not a little sur- 
prised at the service on the knee, when, as French ambassador, he 
dined with James, (Mem. de Sully, tom. iii. p. 273. edit, k Paris, 1814.) 
and it is incqntestible, that Charles exacted it, and every observ- 
ance in its utmost rigour. When the trial of that prince was deter- 
mined on, the Council of War ordered the ceremony to be withheld; 
(Whitelocke, p. 365,) and Charles is represented by his attendant, 
Herbert, to have felt it severely, saying, that he was the first to whom 



S26 INTRODUCTIOV. 

th^t mark of respect ever was deoiedi and that iii former timef, 
even subjects of high degree always receive4 it. Herbert^ p. 109. 
Now it is utterly inexplicable how Mr. Hume should have missed 
ibiB, for in describing the situation of Charles on that occasion^ he 
Bays, '^ all the exterior symbols of sovereignty were withdrawn^ emd 
his attendants had orders to serve him without ceremony. At first he 
was shocked with instances of rudeness and familiarity^ to which he had 
been so little accustomed. Nothing so contemptible as a despised prince 
was the reflection which they suggested to him. But he soon reconciled 
bis mind to this as he ha^ done to his other calamities." Thus^ it 
was a calamity to him to be deprived of a ceremony which^ in Eliza* 
bethj it was tyranny to exact. Even Straffiird^ when Loid-Depaty of 
Ireland^ requested an order^ that '^ on days of meeting none but no- 
blemen should come farther than the drawing-chamber^ that the gal- 
lery should only be free for those of the council^ and that all their 
servants should stay in the great chamber^ where they and all others 
Were to be bare> as well as in the presence^ there being there a state 
«8 well as in the other." ^ Straf. Let. and Dis. vol. i. p. SOO and SOI. 
Bastwick's account of the reverence exacted by the biidiops in 
Charles I.'s time^ as well as of the pomp and state assumed by 
ihem^ is probably caricatured; but the picture bears internal 
marks of having been taken from the life; and it is really ridi- 
culous. See his Litany. The fact is, that in former times, the 
manners were remarkably sdvere. Sons, arrived even at man- 
hood, are represented as standing uncovered and silent in their 
father's presence; daughters, as standing at the cupboard in their 
mother's, or only kneeling on a cushion. Sully himself, though he 
was surprised at the service on the knee at the English court, reposed, 
while hisfimiily stood at a distance. Henry, vol. xii. p. 353. With re- 
gard to kneeling, though I confess I have attended little to these trifles, 
I apprehend, from several passages I have met with, that it was the 
old fashion, for which we have substituted bowing, and which is yet 
retained by the ladies, for the courtesy is just that ceremony mutfla- 
ted, as bowing is a mutilated kind of prostration. Every one remem-* 
bers die following passage in Shakespeare: 

f* Off goes his bonnet to an oyster- wench ; 

A brace of dray-men bid, God speed him well. 

And had the tribute of his supple knee" 



INTRODUCTION. 937 



CHAP. III. 

Tracing the Progress of Society^ and investigating thfi ^41- 
rious drcumstances which ctfflscted the Constituticfn of 
England diu/ring the Reign of James L 

yV-Et have seen that, throughout all the fluctuations 
of society, the grand princif^^a of the constitute 
had been still maintained* Circw)Mtaiice& had 
conferred great influence upon the crown ; but it 
had operated through the imcient channels of the 
govermment, and had thus presery^d foi the other 
branches of the legislature the right of yindicxfing 
public privileges, and redressing gpevance^ milh^ 
out innovating upon established priQeiplea* 

Though the free impQrt^ation of manufacture^ 
the laws against trading iiii grain, the ii^udicidiB 
attempts of th^ legislature \o regulate the wages 
of labouri the enforcing of Ipng apprenticeships tq 
the most vulgar trades, and the ab<>nuna]bie pirao 
tice of granting monopolies, h^ iiQpeded f he pcch 
gress of improvement, there had been still a great 
advance. The woollen manufactures flourished 
in a high degree ; and some towns had risen to 
considerable opulence by commerce. Crowdedi 
streets, filth, &c. all evils in themsMves, were yet 
attended with certain benefits to posterity ; for, by 
occasioning plagues, and thus sweeping ofi* a large 



9t8 INTBODUCnON. 

portion of the population, they raised the wages of 
labour, and consequently the profits of stock, and, 
by unexpectedly opening rich successions, enabled 
many, by the accumulation of capital, to extend 
their concerns, and improve their machinery^ 
Leases of large tracts had improved the wealth of 
the country inhabitants*; and the demand for 
home manu£u:tures, as well as for tlie articles of 
commerce, bearing a proportion to the increasing 
opulence, necessarily afforded emplojonent to a 
number of hands, and more widely difiused wealth. 
While society was thus in a progressive state of 
improvement, in spite of nmch impolicy, the na- 
tional prosperity was rapidly promoted by religious 
persecutions on the continent* Antwerp, long 
famous for her manufactures, had annually fur- 
nished ^^ngland to a large amount; but having been 
sacked in the year 1585, through the furious 
bigotry of the Spanish court, she no longer 
outrivaled the English in their own market, 
while a great portion of her rich and industrious 
inhabitants, driven from their native city, sought 
an asylum in that country, into which they im- 
ported their skill and capitalt. Many articles for- 
merly supplied by foreigners, were now provided at 
home. The demand for manufacturing labour there- 
fore increased, and, as the number who could pur- 



* This is evident from Harrison ; and from what Spencer says of 
leases in his Account of Ireland^ as well as from the information we 
derive from various sources, I apprehend that leases were more com- 
mon in England in that age than now. 

f Anderson's Hist, of Commerce^ vol. ii. p. 158. 



INTRODUCfTfON. S9Q 

chase the necessaries of life augmented^ anew spring 
was given to agriculture by the home consump. 
tion of the produce of the soil ; while the improved 
state of the country population reacted in giving 
additional employment to liie manufacturing class- 
es.-^The general prosperity was accelerated^ like^ 
wise, by emigration^ particularly to the American 
colonies^ which were established under James, and 
which operated not only in opening an outlet to 
the superfluous population, but in creating a new 
market for manufactures. 

Towns give the tone to public feeling: there 
only genius, though elsewhere exerted, meets with 
its reward. Thither resort menV>f intelligence and 
independent fortunes, who naturally canvass the 
measures of government, and acquire a bolder and 
more decided character, by the collision of ^-:toti- 
ment. -The citi2Msns or burgesses, too, daily rising 
into greater independence, cultivate mental im- 
provement, and, by the habits of public business 
which they acquire, in conducting the government 
of their city, or burgh, are naturally roused into 
attention to the great national affairs. This natu- 
ral course of things may be counteracted; but, as in 
England, while the constitution was more popular 
than in other states, there was no standing army, 
and besides, after the church lands were confis- 
cated, there remained in the crown few of those 
sources of influence that make it the interest of 
eertain classes to support the administration in acts 
that otherwise they would oppose, the public spi- 
rit was daily invigorated by national prosperity. 



330 INTROPUCTION* 

The aristocracy having, been reduced to o^ 9u]b- 
jection to the lawa» the inferior ranks had no lo^gtr 
an interest to encourage and support an arbitrary 
interference in the CrowQ> which was calculated to 
shield them trom subordinate tyrajinyy white the 
wretched country population! who, cast out of ei^- 
ployment and subsist^oace, bad deranged the ord^of 
society, and confirmed the power of the e^^outiv^ 
having now been either einployed or g!cadi:tally cd^i- 
sumed byfamine, ceased to molest* in a violeiit deh 
gree, the independent inhabitants, and thus no loei- 
ger allowed them to view any irregularity in the exe^. 
cutive as a necessary evil, nor prevented a vmon of 
all classes for the security of their rights^ Aa re- 
ligion had been instrumental in vastly fac;tending 
the influence of the crown, it now oper^^ in, a 
contrary way* The rights to church lapdfii beii^ 
confirmed, the aristocracy, who perceived that 
they bad nothing more to expect from that quiir» 
ter, were no longer alarmed by their fears of losk(|[ 
their lands* nor seduced by their cupidity of KOr 
quiring more, into an undue desire of suppoi^i^ 
any proposition from the throne. The pnncipka 
of the Reformation also were too deeply rooted lo 
ipake people tremble with terror at the idea at* a 
popish princet though they still were jusitly Pippre-* 
hensive of such an evil, nor to regard a Protesl^ant 
monarch with that reverence which the peculiar 
situation of Ij^lizabeth inspired. Innovation, too* 
having become familiar, the higher classes did not» 
as formerly, recoil with horror at every new tenets 
while, having imbibed the principles of the puritan 
party to the extent at least of ceremonies and wor- 



INTRODUCTION* 331 

fhipf they listencid with less attention to the cry of 
%}^e prelates about the tendency of popular opi- 
nions to violate the rights of property — ^particulars 
ly when [they perceived that these High Church- 
men revU^ as rebellions, the justest opposition to 
the sovereign, and were inclined to serve the crown 
at the expence of every constitutional principle. 

As the public spirit rose, the crown became 
more dependent upon parliamentary supplies, which, 
cppsequentlyi conferred greater influence upon that 
organ of the national voice. For the royal do- 
mains, which, in ancient times, had supported the 
ordinary expenditure of the monarch, had been 
successively much alienated, not, in a trifling de- 
gree by Elizabeth herself, and no fresh plunder of 
the church promised to replenish the royal cofiers. 
At the commencement of his reign, James endea« 
youred to procure a law prohibiting further aliena- 
tions of the crown lands j but the Commons, who 
either grudged supplies, expected a share of the 
domains, or foresaw the political consequences, re- 
fused the bill, and the king himself was far from 
pursuing in practice what he had anxiously desired 
to restrict himself to by law*. While the permanent 
revenue of the crown was thus daily diminished,, a. 
more expensive establishipent was introduced. 

From all these circumsjtances^ the dynasty of 
the Stuarts opened a new erg. in the Government, 
and th^ir chance of enjoying the affections of the 
community, mugt have depended on their yield- 
ing to the more liberal notions of the times, .and 

* See Raleigh's iPrerog. of Parliaments, p. 43. 



332 MTRODUCTioM* 

never at least exceeding the limits of the consti^' 
tution. But a free spirit in the people is apt to 
inspire an opposite one in the govemorsi who mis- 
taking the expression of the public feeling for its 
cause, conceive that illegal severity against every 
indication of freedom, will quell the temper they 
dread ; and therefore, recal to mind as a precedent 
for their ordinary administration, every insulated 
irregularity of former times, attributing obedience 
to any rare act of severity, when in truth the sub- 
mission to the act arose from the train of events that 
had encouraged it. This misguided policy is not 
confined to princes : Even statesmen in power are 
frequently the last to observe the changes in socjiety 
which necessarily affect the Government. Raised 
above the people, and occupied with intrigues for 
place, they either despise, or are ignorant of, 
the passions which agitate the general mass, 
and refuse concession till the hour of concili- 
ation is past* An ambitious priesthood, who, 
with as much injustice, are more impolitic, per- 
ceiving that external pomp and ceremonies impose 
on mankind, cannot renounce them when they 
provoke disgust instead of veneration*. When, 
therefore, a prince evinces a disposition to tyran- 
nize, he seldom wants evil counsellors and coad- 
jutors ; and, as James shewed the first, he was plen- 
tifully supplied with the last. 

At the accession of that monarch, though there 
was a party hostile to the hierarchy, the bulk of 

* Lord Clarendon remarks^ that " Clergymen understand the leasts 
and take the worst measure of human afiairs^ of all mankind that can 
read or write/'— Life, vol. i. p. 34. 



INTRODUCTION* 339 

the Protestant community adhered to it, and would 
have been fully satisfied with a dispensation from 
certain ceremonies, which too forcibly reminded 
them of the religion they had renounced. This 
they had expected from the new monarch, whose 
Presbyterian education afforded a rational ground 
of hope : But the very circumstance on which they 
relied, had been productive of opposite conse- 
quences. The Scotch Clergy, full of the highest 
ambition, had converted the pulpit into a theatre 
for political declamation ; and James had imbib- 
ed the bitterest hostility to every thing which ap- 
proached to the Presbyterian form of ecclesiasticial 
establishment, declaring that, under it, Jack and 
Tom, and Dick and Will, presumed to instruct 
him in affiurs of state. It was his misfortune to 
have received, under the tuition of Buchanan, 
more literature than he had understanding to di- 
gest, and therefore, while he could lay down general 
propositions with considerable force, which seem- 
ed to imply an extent of intellect above the ordi- 
nary standard, the real effect of his acquirements was 
insufferable pedantry and self-sufficiency ; proving 
that his general conclusions were borrowed from 
others, and foreign to the indigenous productions of 
his own mind. Hence, however, he imagined himself 
possessed of supereminent wisdom, and though his 
power was circumscribed in most respects, while 
king of Scotland only, he supposed himself like« 
wise the centre of all legitimate power. Under 
the dominion of such feelings, he regarded all 
Protestant non-conformity, as importing a leaven 



384 INTRODUCTION. 

of Stubborn republicanism, and therefore reaolved 
to allow not the slightest toleration to that classh-^ 
a resolution in which he was confirmed by the 
impious flattery of the Prelates, who attributed 
to him, at the conference at Hampton Courts 
immediate inspiration from heaven ^^ The noti*- 

* In his opening speech at the Conference^ the King congratakted 
himself on having reached the promised Iand> where he was not ^^ as 
elsewhere^ a king without state^ without honour, without order^ 
where beardless boys woidd brave him to the face/' Fuller's Cb« 
Hist. b. X. p. 8. The Government of James has been excused on the 
principle of his having merely imbibed the principles prevalent in his 
time : But they were confessedly not prevalent in Scotland, where 
he had been educated, and where he wrote his book, entitled, ^^ The 
Law of Free Monarchies/' which, in every page, contains the most 
detestable principles ; nor had he learned them from his preceptor 
Buchanan, whose very books he eagerly put down, not on account 
of the reflections against his mother, which would have been both na- 
tural and excusable, but merely^for the political sentiments."*At the 
conference, he says, ^^ a Scots Presbytery agrees as well with Monarchy, 
as God and the Devil; then Jack and Tom, and Will and Dick, w31 
meet and answer me and my council. Therefore, pray stay one seven 
years before you demand that of me, and if then you find me grow purfy 
and fat, my windpipe stujffed, I will perhaps hearken to you, for that 
Government will keep me in breath, and give me work enough. 
How they used the poor Lady, my ihother, is not unknown, and me 
too in my minority." His maxim was, no Bishop, no King;* and in 
conclusion, he told the Puritans, — ^' If this be all your party hath to 
say, I will make them conform themselves, or else harry them out of the 
land, or else do worse." The Geneva translation of the Bible, had^ 
in the preceding reign, passed through twenty or thirty editions, oat 
James condemned it strongly, in consequence of some notes which fa- 
voured the right of the people to correct the prince, and he says, " never 
tell me how far you are to obey." — James ^ewed some shrewdness in 
this business, but a want of dignity truly astonishing. The conduct 
of the prelates was detestable. Whitgift said, he verily believed the 
king spoke by the special assistance of God's spirit. Bancroft feQ 
on his knees and said, ^^ I protest my heart melteth for joy, that Al- 
mighty God, of his singular mercy, has given us such a king, as since 
Christ's time hath not been." The Chancellor Egerton was more ex- 
cusable in saying, that he never saw the King and the Priest so fully 



INTRODUCTIOK. 935 

eoBformitig were persecuted, everywhere ridi* 
culed, and treated with the greatest contempt ; 
i, ^ecilBS of persecution which has been thought 
the most severe towards religionists, but which^ in 
fact, operates with equal force upon mankind in 
general ; and the moderate amongst the non*con- 
fonni6ts,.t¥hose vi^ws extended no farther than to 
Ian abr(>gation of certain ceremonies, perceiving 
jthismselves designedly confounded with the party 
^o were hostile to the hierarchy, naturally fell 
into their sentiments : Men cannot long venerate 
a system whence they derive nothing but persecu- 
tion. They were confirmed too in their religious 
principles by the neighbourhood of the Scots, and in 
both their religious and political, by the success of 
the Dutch Commonwealth. The same policy that 
actuated the court in such intolerance towards the 
non-conforming Protestants, occasioned a partiali- 
ty to the Catholics *, which excited disgust and 

tmited in one person. Howel's State Trials^ vol. ii. Fuller^ b. x. 
Keal^s Hist. vol. ii. p. 18. 

The Foritans were not even listened to^ though specially summoned 
16 afgtie the case^ and Mr. Hume sneers at them for complainings as if 
philoBophical candour was to have been expected. But hear what the 
Solomon of the age writes on the subject^ to Mr. Blake^ a Scotchman. 
** They fled me so from argument to argument^ without ever answer- 
ing me directly, (ut est eorum moris,) that I was forced to tell them, 
that if any of them, when boys, had disputed thus in the college, the 
Moderator would have fetched them up, and applied the rod to their 
buttocks." Neal, vol. ii. p. 19. It is quite evident that this second 
Solomon, ought never to have held a higher place than that of School- 
master. 

• See Neale, voL ii. but particularly p. 38, 40, et seq. for an account 
of the persecution by James. It has been supposed that his government 
was milder than that of the preceding rdgn, but it is a mistake. It is 
true that the extent of the persecution has been denied by the court 



936 INTRODUCTION. 

jealousy throughout the kingdom, and daily added 
auxiliaries to the dissenters. Religious ceremo- 
nies become, justly contemptible as well as hateful 
when converted into instruments of arbitrary 
power. 

The civil government of James was no less im- 
politic and arbitrary than his ecclesiastical. Though 
a foreigner, of a nation too that the English had 
been accustomed to despise, and the son of a 
queen who, with the universal approbation of the 
Protestant portion of that people, had suflSsred on a 
scaffold, he assumed the language of the vicegerent 
of heaven, — ^responsible to God only for his ac- 
tions, and whom it would be impiety. ix> oppose in 
any of his pretensions, however inconsistent with 
the laws which made him king,— however unpre- 
cedented and oppressive to the people *« Even 

• 

party; but, on the same principle that we doabt it in James's case^ 
we ought in that of Elizabeth. 

In his very first speech to parliament, James had the impmdenoe 
to acknowledge the Romish church to be his mother church, thou^ 
defiled with some deformities and impurities. He declared that his 
• miud was ever free from thoughts of persecution, as he hqpes those 
of that religion have proved since his accession. He expressed pity 
for the laity amongst them, and said he would indulge their deigy 
if they would but renounce the Pope's supremacy, and his pretended 
power to dispense with the murder of kings. He wished he might 
be the means of uniting the two religions, for, if they would but aban- 
don their late corruptions, he would meet them half-way. But then 
'^ as to the Puritans and Novelists who do not differ from us so much 
on points of religion, as in their confused form of policy and purity ; 
those," says he, '^ are discontented with the present church government, 
they are impatient to sufier under any superiority, which makes their 
sect insufferable in any well-governed commonwealth." Id. p. S7. 

* Immediately after the discovery of the gunpowder treason, James 
thus addressed both houses of parliament : ^' And ngw I must crave 



INTRODUCTION. 3*7 

the first actions of his reign were subversive of the 
fundamental laws. On his journey to London, he 
ordered a thief to be executed without the forma- 
lity of a trial * ; and his first parliament, at its 
veiy commencement, were obliged to resist an in- 
fijngement of their privileges, which, had it suc- 
ceeded and been established into a practice, might 
have proved fatal to their independence. But, as 
this subject, in itself of the utmost consequence, 
has been completly misrepresented, and as it has 
been alleged that the privileges of the Commons 
were, at that period, undefined— whence it has 
been inferred, and the inference necessarily flows 
from the premises, that their importance in the 
constitution was extremely small, — we shall make 
no apology for pausing to explicate a point so vi- 
tally connected with the British form of govern- 
ment t. 

All writs for the election of representatives had 
been originally returned to Parliament itself; but 
by the 7 Henry IV. they were made returnable to 
Chancery, whence they were issued t* Though, 



a Utile pardon of you^ that fdnce kings are in the word of God itself 
called gods upon earthy and so adorned with some sparkles of divinity^ 
to compare some of the works of God^ the ^great king towards the 
whole and general worlds to some of his works towards me and this 
little world of my dominions. " He says the Puritans are worthy of 
fire hecause they deny salvation to Catholics." 

* Stow, p. 821. 

t It is impossible for me to read Mr. Hume's account of this mat- 
ter without tibe utmost pain. Many of his other statements may be 
ascribed to precipitation, &c. but I am afraid the artfulness shewn 
here must be imputed to a different cause. 

t Journals, 3d April 1604. 

VOL. I. Z 



39B INTBODUCTIOW. 

however, the form of the writ was then altered. 
Parliament invariably exercised its right of exam* 
ining elections, and the clerk of the Crown-Office 
always attended' the lower house with the writs 
and returns, at the opening of every session, when 
ccMoamittees w^e appointed for that purpose. 
During the long recesses usual in those days, va. 
cancies frequently occurred; and, upon a sug- 
gestion to the Lord Chancellor, a writ was issued 
for a new election. This practice could not be pro- 
ductive of any ill effects, since the matter fell imme- 
diately under the cognizance of the house on its re- 
assembling, and the right of the new member was 
determined by its vote. During a session, however, 
a vacancy could not then, any more than now, be 
supplied without a previous order from the house 
directed to chancery. But, in the 3Sd of Eliza- 
beth, a proceeding, fraught with the most alarming 
consequences, was attempted, and which, to a cer- 
tain extent, succeeded, though it may be observed, 
for the credit of the house, that its partial success 
was attributable to an irregularity which shall be 
explained. During the recess, the Chancellor had 
issued writs for elections in the room of certain 
members who were alleged to be incapable of at- 
tending either through sickness or foreign employ* 
ment j but when parliament met again, this gave 
rise to an immediate discussion, when it was ar- 
gued on the one side, and supported by prece- 
dents, that foreign emplojrment particularly, did 
not forfeit a seat ; but that admitting that these 
causes might warrant new elections, yet that 



J 



such elections ccaAd only proceed by th^ <nv 
der of the house Hs^ upon information hefcnre 
them. On the other side» the cit>wn-)a.wyers c^ask 
tended that it was sufficient to make a gyuggeition 
to chancery : That to quc^on this^ were to discre* 
dit the Chancellor, and scandalize the judicial pro<i 
oeedings of that court : That wherever new ele&i 
tloQs were deemed requisite, if the Chancellor sent 
out a writ upon any suggestion, to chuse a new 
member in the place of an old, wheth^ tl^ cause 
were sufficient or not to remove the old, or the 
g(uggestion true or fake, yet, that if a member 
were elected, the house was bound to receive him» 
'* and the old remained discharged, until the matter 
were farther cleared up, en the ejcaminatian (m4 
judgment of the house *.*' The new members were 
therefore received in the mean time, though one 
of the old members, who had been reported to be 
incurably sick, had recovered from his indispo* 
sition, and resumed his seat. But the following note 
by D'Ewes, the editor of the Journals, is worthy of 
attention : *^ Nota» that all this was done after the 
election of John Popham, Esq. the queen^s soUdtor 
for prolocutor or speaker, but, before his presenta^ 
tion to the queen, or her majesty's allowance of 
him. The agitation of which question was, doubt* 
less, either privately muttered in the house ; or, if 
it were disputed openly, it was suddenly apd un^ 
warrantably done, in respect that the House of 
Commons have no power to determine oir resolve 

* D'Ewes, p. 281, 38?. 



340 INTRODDCTTON. 

of any thing after the election of the Speaker^ tiU 
he be presented and allowed, as may easily be col- 
lected by all precedents, both of later and former 
times. Neither did this opinion of the Houses 
thus irregularly given, take any effect,: because the 
contraiy was resolved, March 1 8th, portea*." This 
irregular proceeding took place on the 19th of Jan- 
uary, and, only two days afterwards, the House, in 
another case, maintained their privilege on this 
point, and the Chancellor himself, who was an old 
Parliament-man, and still retained his favourable 
feeling towards the House, supported them in their 
resistance of innovation. A member was indict- 
ed of felony, and the Chancellor was moved by 
suggestion to issue a new writ ; but he declined it 
without an order from the House, who refused 
to remove the member till he were convicted, 
as it might be any man's misfortune to be un- 
justly accused t. On the 18th of March, the com- 
mittee for elections returned their report regard- 
ing those who had been irregularly admitted du- 
ring the investigation, and then it was solemnly 
resolved, that though the new members should be 
excused for their past attendance, yet that they 
thenceforth stood discharged of their rooms and 
places, << in the stead of such other members not 
being dead, unless special order should be taken 
by the house to the contrary.'* " It was farther re- 
solved, that, during the sitting of Parliament, there 
do not, at any time, go out any writ for chusing 

• D'Ewes, p. 281-S«S. t lb. 



iNTiiaBircTioH. S41 

any knight, citizen, burgess, or baron, without a 
warrant of the House directed for the same to the 
clerk of the crown, according to the ancient juris^ 
diction and authority of this House in that behalf 
accustomed and used.'* But the Commons, while 
they vindicated their privileges, performed, at the 
same time, what thay deemed their duty to the 
public, by retaining two of the new members 
in the place of others who were proved to 
them to be incurably sick-— a measure perform- 
ed by a special order of the House, in. vir- 
tue of the power reserved in their general reso^ 
lutions *. In the S9th of Elizabeth, while the fate 
of the Scottish Queen was the occasion for sum- 
moning Parliament, a case occurred of a second 
writ having been issued posterior to the execution 
of the first, under the pretext that the election was 
too precipitately carried, and when the Commons 
began to investigate the matter, the Speaker re- 
ceived from the throne by the lord chancellor a 
message for the house, announcing that her Ma- 
jesty was sorry to learn that they had been 
troubled at their last meeting about the choice and 
return of knights for the county of Norfolk, a 
thing in truth impertinent for them to deal with, as 
the matter belonged exclusively to the lord chan- 
cellor, by whom the writs were issued, and to 
whotti they were returnable ; and that she had ap- 
pointed his lordship to confer with the judges, 
and, upon a fair investigation of the subject,, to 

* Journ. p. 135. D'£wes^ p. 308. 



34S INTRODUCTION. 

adopt such a course for the new Section as should 
be agreeable to right and justice. Much has been 
said about the tameness of Etizabedi's parKaments ; 
but though^ on minor occasions, tbey wefe too 
submissive, they showed, in this instance, Hial 
they both knew their rights, and could defend 
them when vitally invaded. Undeterred by the 
message, nay, rather inspirited by it in their dutf, 
they proceeded to examine the case, su^ came t6 
the following resolutions, which we shall preseM en- 
tire : " 1st, That the first writ was duly executed, 
and the second election absolutely void. Sdly^ lliat 
it was a most perilous precedent, that, after two 
knights of a county were duly elected, any new writ 
ahouM issue out for a seecHid electi<^ without an or- 
der from the House of Commons itself. Sdly, That 
the discussing and adjudging of this and such dif- 
ferences <mly belonged to the said house. 4thly, 
That though the Lord Chancellorand judges were 
competent judges in their proper courts, yet they 
were not in Parliament. #thly. That it should be 
imerted in the very journal-book of the House, 
that the first diection was approved to be good, 
and the knights then chosen had been received 
and allowed as members of the House, not out of 
any respect the said House had or gave to the re- 
solution of the Lord Chancellor and judges there- 
in passed, but merely by reason of the Resolution 
of the House itself, by which the election had 
been approved. 6thly, and lastly. That there 
should no message be sent to the Lord Chancel- 
lor, not so much to know what he had done there- 



INTRODUCTION* 34tS 

itt> b0catt96 it was conceived to be a matter dero* 
gMory to the power and privilege of the House *.*' 
the ComttOM again exercised their right in three 
di£Ei^rent cases^ without diqmte, in the 4Sd of that 
C^eeti t 

Thus the privil^as of the Commons^ maintsuiL*' 
ed irotn the earliest times» for they were tnodifiedf 
not altered by the 7th Henry IV., were manfully 
vindicated from every attempt to infringe them^ 
during a reign in which, a variety of causes^ pe** 
culiar to it, had concurred to confer extraordinary 
powers on the sovereign j yet a stronger is no 
sooner seated on the throne, than he aims a blow 
at the very foundation of the people^s rights. On 
summoning his first parliament, he issued a pro<* 
clamation, prescribing to the community the choice 
of their representatives, and amongst other things^ 
enjoining them strictly not to elect any outlawi 
whether for debt or crime, and threatening to fine 
and disfranchise the corporations who returned, 
and to fine and imprison the person who should 
take upon himself the place of knight, citizen, or 
burgess, not being duly elected according to the 
laws and statutes in that behalf provided, accord- 
ing to the purport^ effect, and true meaning of the 

* D'Ewes, p. 393. 5 — 7. To weaken the fotce of this proof of spin 
in the Commons^ Mr. Hume says^ '' This is the most considerable and 
almost only instance of Parliamentary liberty which occurs during the 
reign of this princess," ch. xlv. Thus it ever is with this writer. Does 
any thing occur which bespeaks arbitrary government ? It is imme- 
diately magnified into a general principle. Does the liberty of the 
subject clearly appear to be vindicated ?*^a salvo follows. 

Id. p. 633. 4. 5. 7. 



344 INTRODUCTION. 

|9roc£imal»on.— This requires no comment; but 
it will be necessary to dear up the subject of out- 
lawry as a disqualification. In the S9th of H* 
VLp the Judges had declared outlaws to be ineli- 
gible ; but the house paid no regard to their <^i- 
nion. In every case of the kind, however, they 
seem to have examined the cause of the outlawry,, 
and to have reserved the power of removing a 
member when it implied crime or infamy. Thus, 
in the first of Elizabeth, a member outlawed was 
charged with having defrauded his creditors, and 
the committee to whom the examination of the 
matter was entrusted, having made their report, 
the House was divided, — ^not as to the efiect of 
outlawry considered in itself, but as to the par- 
ticular grounds of it in the case before them ; yet 
the individual was admitted *. Another case oc- 
curred in the S3d of that reign, and the ground 
of the outlawry having been examined, the per- 
son returned proved, that all his debts had been 
honestly compounded for, and took. his seat. 
In the S5th of Elizabeth, the commons, after 
a great debate, came to the same resolutionf , and it 
is extraordinary, that no case occurs of any indi- 

* D'Ewes, p. 48. see the case of Goodwin and Fortescue in 
Howell's State Trials, vol. ii. 

f Mr, Hume's statement of this case is very erroneous. He says, 
that the admitting him because he proved that his debts had been in- 
curred by suretyship, " plainly supposes that, otherwise, it would have 
been vacated on account of the outlawry." Now, had outlawry been 
of itself a ground of disqualification, it had been enough to produce 
the record, the matter would never have been sent to a committee— ft 
fact sufficiently proved in the other case. 



introduction; 345 

vidual having been held disqualified on that ground. 
Having now explicated the subject, we shall pro- 
ceed to the famous case which agitated the first 
parliament of James at its very ccMnmencement. 
Sir John Fortescue, m old counsellor, had started 
as candidate for Buckinghamshire, and was oppos- 
ed by Sir Francis Goodwin, who proved successful. 
The court being anxious to defeat the election, the 
council and judges were immediately employed to 
devise the means, and they hit upon the outlawry 
pf Goodwin, though unfoundedly, as the pretext. 
Upon this the election is declared null, a new writ 
issued, and Fortescue returned. But the house no 
sooner met than they restored Goodwin to his 
place. The king resented the proceeding, and in- 
stigated the lords to desire a conference with the 
commons on the subject ; but the latter having 
refused a conference on a question which exclu- 
sively regarded their own privileges, his Majesty 
expostulates with them in the following terms, in 
which he fully developes his principles : ** He was 
loth/' he said, '< to alter his tone, and that he 
should now change it into matter of grief by way 
of contestation. He did sample it to the murmurs 
of the children of Israel. He did not attribute 
the cause of his grief to any purpose in the house 
to offend him, but only to a mistaking of the law." 
" He had no purpose to impeach their privileges ; 
btU since they derived all matters of privilege from 
him, and by his grant, he expected that they should 
not be turned against him. That there were no 
precedents/did suit this case fully ; precedents in 



346 iNtRODUCTIOK. 

the times of minors j oftyrarasf of womsk^ of simple 
kings, not to be credited^ because for ptiv^e 
ends. Th&t by the law^ the Home of CUm^ 
mons ought not to meddle with retui*ni», b^ng 
dU made into the chancery, and to be corrected and 
reformed by that court alone/' ^* By this course/* 
says a member, " the free election of thecoun" 
ties is taken away, and none {ihall be choiten but 
such as shall please the king and council. Let us 
therefore, with fortitude, understanding, and sin^ 
cerity, seek to maintain our privileges* This eaB" 
not be construed any contempt in us, but merely a 
maintenance of our common rights, which our an-* 
cestors left us, and which it is just and ik for us to 
transmit to our posterity/* ** This may be ci^led 
a qtu) warranto to seize all our liberties,*^ said ano- 
ther. " A chancellor,'* observed a third, «« by this 
course, may call a parliament of what persons he 
pleases. Any suggestion, by any person, may be 
the cause of sending a new writ. It is come to 
this plain question, whether the chancery or par- 
liament ought to have authority.*' They there* 
fore resolved to adhere to their former judgment j 
when thev received a message from James " that 
he commanded, as an absolute king, a conference 
with the judges ;*'— from whom, by the way, he had 
already received an opinion favourable to his pre- 
rogative. This was calculated to bring matters to 
an immediate crisis, and, perhaps, at that particu- 
lar juncture, the commons acted prudently in com- 
plying with the royal requisition. James himself 
presided iat the conference, and had common sense 



INTROiDUC'riON* S|i7 

evmgh to jmt^ve the {Propriety df d«partiiig fmtn 
hik Idfty pretensiotid. The diispute, in so far as it 
iiegftMed the individual case^ was compi^otnised, 
both elections having been set aside, but the 
privileges ci the House were vindicated from 
any similar proceeding in future. Some of the 
high-spirited members, however, censured the 
committee for yielding so far in the particular case 
without consulting the house, and moved that the 
words ** By the request of the King'* should be in- 
serted into their warrant for a new election ; but 
liie motion was lost*. 

Mr. Hume has attempted to palliate the con- 
duct of James in this instance by a most extraor- 
dinary argument, " that there was reason to be- 
lieve that this measure, being entered into so early 
in the king's reign, proceeded more from precipi- 
tation and mistake, than from any serious design 
of invading the privileges of the Parifament**-— 
and he has asked — " had the privileges of Parlia^ 
ment been, at that time, exactly ascertained, or 
royal power fully limited, could such an imagina- 
tion ever have been entertained by him, as to think 
that his proclamations could regulate parliamen- 
tary proceedings?" — In the first place, with regard 
to the alleged precipitation and mis^take, it is only 
necessary to observe that, though such an excuse 
might be admissible for an error in the private af- 
fairs of life to which the person committing the 

* Journal^ p. 151. et seq. Pari. Hist. vol. i. 99^* Howell's State 
'Trials, Tol. ii. p. 91. ff seq. 



S48 INTRODUCTION. 

mistake had been previously a stranger, it cajinot 
be listened to in favour of a monarch, whose public 
acts ought to be performed by his servants, through 
whom he should receive instructions in all his 
concerns*. But this monarch evidently appears 
to have interposed personally in the matter, and 
to have been resolved to set the established and 
invariable practice as well as law at defiance^ In 
the next place, if we answer Mr. Hume's queries 
in the affirmative, it will necessarily follow, that 
we must pronounce every unconstitutional act of 
that king, authorized by the precedents of former 
times, merely because they occurred in his. The 
conduct of James is no more extraordinary than 
that of a vain, foolish person, suddenly raised 
from beggary to affluence, whose eyes, dazzled 
with sp unexpected an altitude, deceive him into 
a belief that his wealth is unlimited, and betray 
him into extravagancies which ten times his for- 
tune could not support f. But, in the last place, 

'^ James in 1616^ went to the Star Chamber^ pretending that Henry 
VII. from whom he was doubly descended^ had done the same^ and 
the reason he assigned for not having done it sooner^ was^ that 
*' though he was an old king when he came thither^ and well prac- 
tised in government from twelve years of age^ yet here he resolved, 
with Pythagoras, to keep silence for seven years. That apprentice- 
ship ended^ &c." why did he not pursue the same principle in regard 
to elections ? 

t Every part of James's conduct verifies this : " A prince," says 
Roger Coke, ^' so poor before he came to the crown of England, that 
if he had not been supported by the pension which Queen Elizabeth 
allowed him, he could not have maintained the garb of many of our 
English gentry ; and being come to the crown of England, not only 
the sacred patrimony of it was squandered and embarrassed upon de- 
bauched and profane favourites, but the people, otherwise oppressed 



INTRODUCTION, 349 

he distinctly avowed his resolution to disregard 
the precedents, as having passed ** in the times of 
minors, of tyrants, of women, of simple kings** — 
a catalogue in which he could have had no difficul- 
ty in ranking any sovereign, since the characters 
of all were to be determined by his own voice. 
As, however, there had been only two women 
on the English throne, of whom the first could 
scarely be meant by him, indeed all the prece- 
dents took place under her sister, James must 
be considered as having distinctly avowed a pur- 
pose to govern on far more arbitrary principles 
than his immediate predecessor, whose adminis- 
tration has been so blackened to apologize for his, 
while the expression of contempt towards " wo- 
,men,** (a sneer which ill became his unman- 
ly disposition, towards any one, but especially 
towards Elizabeth, whose spirit so infinitely excell- 
ed his own,) could not fail to give deep ofience to 
a people who so fondly cherished the memory of 
their former sovereign •. 

That the inexperience of James might form some 



with almoBt infinite monopolies and projects which the nation never 
bef<nre heard of> and as they were new^ so were they all illegal ; and 
all these to make his favourites rich^ while he continued the poorest 
king that ever governed £ngland : Jostled in his throne hy the Pres- 
bytery in Sootiand^ yet nothing less than sacred would down with 
him from the clergy in England^ though his dissolute life and pro- 
fane conversation were diametrically opposite." 

• When Rosny^ afterwards Duke of Sully, sat at table with James, 
that monarch not only spoke contemptuously of Elizabeth, but boast- 
ed that he ruled her council for a long time before her death !•— Mem. 
Pe Sully, tome iii. p. 274. 



$S0 JNTRODUCTIOK. 

^ology for this part of bi$ conduct, it would be 
necessary to prove that his subsequent government 
was, in the main, unexceptionable ; but^ unfortu* 
nately for his memoiys it is too apparent that he 
prooedded to the last without amendment, and^ in^ 
deedt on this very subject, it may be remarked, that 
he endeavoured to subvert the freedom of elections 
in another form ♦. His pretensions, too, were such 
as became an absolute monarch only. In 1610 he 
summoned Parliament, then busy with an in<- 
quiry into grievances, to Whitehall^ and told them 
that *^ he did not intend to govern by the absolute 
power of a king, though be well knew the power 
of kings was like the divine power ; for, as God 
can create and destroy,* make and unmake at his 
pleasure, so kings can give life and death, judge 
all and be judged by none ; they can exalt aod 
abase, and, like men at chess, make a pawn take a 
bishop or a knight : But that all kings, who are 

* Not only were undertakeiis employed by the court to carry elec- 
tions for the crown^ but threats were retorted to^ as may be seen fnm 
the following passage of ^^ a speedi out of doors." 3 Qv^ ^' Where 
the law giveth a freedom to elect burgesses^ and forbiddeth any in- 
direct course to be taken in their elections^ many of the incorporations 
are so base-minded and timeorous, that they wiU not haiaxd the kk^ 
dignation of a lord lieutenant's letter^ whoy underhai^d^ stioks not to 
threaten them with the chai^ of a musket or a horsa at tha miistav 
if that he hath not the election of the burgesses.'' Franklyn> p. SS& 
Mr. Hume treats the eoimplaints of the Commons on this sul^eot with 
eontempt-«<'' because it was the first infallible symptom of any ttta* 
blished or regular liberty ;" but undue interference of a certain kind 
was of an old date^ though the Stuarts exceeded their predeo^sors in 
the means employed ; and if they had not, the oondusion.frmn Mr. 
Hume's premises is, that the instant the Commons began to acquire 
consequence, it was justifiable in the king to deprive them of it 






INTIiOEfUCTION. 351 

not tyrants or perjured, will bound themselves with- 
in the limits of their laws, and that those who per-* 
suade them to the contrary are vipers and pests* 
both against them and the commonwealth. Yet 
that, as it is Uaspbemy to^spute what God might 
do> so it was sedition in subjects to dispute what a 
king might do in the height of his power. And as 
he will not have his subjects discourse of What be 
may, so he will do nothing but what shall be con- 
sonant to law and reason/' But then he is him-> 
self to be sole judge of law and reason, for he 
commanded them ^^ not to meddle with the main* 
points of his government, that was his craft» and 
it would be to lessen him, who had been thirty 
years at his trade in Scotland, and had served an 
apprenticeship of seven years in England */* Far 
from prc^ting by this lesson, parliament remonstnu 
ted, and he soon dissolved them, after which he 
summoned no parliament for four years. With the 
two next he quarrelled, and imprisoned the lead^ 
ing members, or sent them on expensive foreign 
employments. 

Of his disposition to exalt the throne above the 
control of the legislature, he afforded many other 
convincing proofs during his reign. In ecclesias- 
tical matters he assumed supreme power, and he 
struck at the very vitals of the Constitution by 



* Wilson in Ken. p. 682. see also James's Works, p. 63% This 
speech is much of a piece with one delivered by him in the Star Cham- 
ber in 1616. See Sanderson, p. 439. The impious babbling in the last 
is greater, the principles as detestable. See his Law of Free Mon- 
archies, and Basil. Dor. 

2 



352 INTRODUCTION. 

issuing illegal proclamations with penalties, which 
were enforced by the Court of Star-Chamber ♦, 
while by levying taxes without an Act of Parlia- 
ment, he prepared the way for the disuse of that 
assembly. He, of his own accord, imposed new du- 
ties at the Ports, and arrogated the right of doing so 
at pleasure, a pretension in which he was supported 
by venal statesmen and corrupt lawyers, who con- 
curred in fabricating precedents to deceive the 
people : Nay, his judges solemnly decided so mon- 
strous a principle in his favour. Innumerable pro- 
jects and monopolies were devised for raising mo- 
ney, but he was latterly obliged to pass an act 
against them: forced loans, without the press, 
ing^ emergencies which were used as an apology 
for them in the preceding reign, were resorted to ; 
and the hateful measure of benevolence, which 
had been so much reprobated, and so opposed even 
in Henry the Eighth, and so long discontinued, 
was revived : But though severities were practised 
to force men to contribute, such as ordering 
one Barnes a citizen of London, to carry a dis- 
patch to Ireland, the scheme was very unsuc- 
cessful, as the people supported each other's re- 
solution to resist itt. Other illegal measures 

* Howdl's State Txials^ voL ii. p. 5S4. et seq. 

t Wilson^ p. 696. Mr. Hume asserts openly^ in r^ard' to this 
reign^ that benevolences had been common in aU former reigns ; but 
he quotes no authority^ nor had he done so in the original work — 
History of James I. and Charles I.-^though he did not intend to 
carry the history further back. The truth is^ that it was impossible 
for him to have a proper knowledge of the history within the time he 
took to write it. 



r 



l)c to suclit as aie of the^nuMt appallitig natun^ and 
directly subversive of tbe ooBStitutioni . . r 

.ThusiJames- wasrso fdr ftom yielduig to the 
more Hberal views c£ the.times^ that he made pre^ 
tensiqns and acted upon pdiicipl09, /which would 
not have^been kmg ^submitted to at apy preiioua 
period. : This has be€». thought irreconcilable witbi 
the; natural timidity and . indolence of his , cha^ 
racter» and been most strangely used as an uilan« 
swerable argument for concluding that the gqvenL^ 
m^ity previous to his accession, .had been arbi-! 
trary *: But his timidky aiul indolence ap{ilear to 
have, partly, driven him into that course* Irritate 
ed by opposition and want of respect, during hi^ 
residence in Scotland, he consoled himself with 
forming a theory absolved from restraints upon, his 
prerogative-— a .theory which, in its worst features, 
he subsequently practised upon, tl^at nation j and^ 
when we refliect on tbe pernicious influence of tbel 
Scottish, aristocracy, we might not have been dis- 
posed to condemn the monarch for desiring siich 



* I beliiBve that, iA all eourts, those Who have ever t>eeii iot refusing 
conceadoii at a critical juncture; and resorting to sanguinary, mea^ 
sures, will be found to have been the most cowardly ; and it is natural. 
Their fears suggest to them danger in the popular spirit, and thejr 
would employ the monu^t of power in cruahing those they dread* 
A truly brave man> oti the other hand, if he possess common honest 
. ty, coolly surveys the ground, and, as his fears do not urge him to im;* 
proper measures, nor bliiid his judgment, he sees the real danger^ 
and avoids it by oonjbiliatiotl. 

voIm u 3 a 



354 inv u o oo etpm^ 

vigoM'ln (Hie ifsmM^ m Idbinilil wiUe liitt ito 
eutb ib«ir laMrlMi {>maMdiiigi» ted he Mt afteiw 
wards proved hitukf WR^v^Mtby cipomw, by ^ixas^ 
ing thht whick d«fvelved updn him over Soodtnd 
by his Meessidii to thd Engliiii cmmn* In E^gu 
knd^hebadandcipatodfarji^eaterim&ority; mmI 
wliai he perdeh<ed tiM, from thepatlicQlir soorcw 
df inltfieiiMi tfhidi Ittd opented on BarliUEiMt 
mtder the Tiidoi« hnviiig faei^ exhausted^ that 
Maett/bfy^ Mjpj^orted by the niUioii at hffge, were 
prepared to aMsrt th^ir rights with a fairer handy 
apptehetisioM ^f a distent kiad alarmfed him. 
During the intervals of Parliament, matters seeioed 
to proceed smoothly, as the cry of discontent waa 
seldom pern^tted to readi the royal esr, and 
was besides attributed to the arts of the p«r<. 
Ihtmentary leaders, who were accused of encou* 
raging the popular sentiment as a support to 
their own designs ; but, while his temper could 
not easily brook i^osition, nor part with autho^ 
rity, and his indolence made him shrink from the 
idea of a contest, James descried no common dan*- 
ger,in the measures of a regularly constituted body, 
whose resolutions mien regarded as sufficient to 
controul the crown itself. Imputing to that as- 
seeibly his own love of power^ he inferred that, as 
their authority extended itself, however they might 
jB^fi^lUatify him with the name of king, they would 
be satisfied with nothing short of the whole power 
of the executive ; and his reading furnished him 
with instances of monarchs who had been deposed 



mtiMimmtfinr. B&S 

by tbtit »aj)i*6Hi6 it^^yrt *^ Hk fears and iii dd((fid«i 
e^tftiUj fkighl hltn til fly ft^ belter to kthktsaty 
goyeinm^ti ^^ cxmt^jmbsg iirith his predilee* 
^<Mii hkdmki hltil to direct fate whole r€»Giirces tcM 
ytaiAs sMpetieiMg tfa^ legklatiire^ But he forgot 
thai^ While he hoi mt it ^itigle re^mmii to e&for^e 
his measctr^y it Would hi^e required a i»)hsideir^ 
aMe tlhiiy t» coiApkfe hii$ sdieMes ; fbr^ thcHiglir 
&t& mtLj he driveii, they dr e mt to be persuaded^ 
ifftd jIlAvery. Jiime^ boWeTer^ appears to have 
ddudi^d hiifldeif'witfa the notion of defraiidiiig th8 
peofAi^oftbeii^rigbW. 

Bd't, of til pdtti:^!^ te WdS sUtioiigst the most 
podtly ^t^3^A M i^ch ft task. A ibi'eigiier 
ever l^dui^ uhdef di^adVafitfilgdSi and these hb 
iiititealted by prefefriiig Seotsffien to Ei^Uie^ oft 
fi£es,-Mt course which lo^t biffi the ufiiual patronage 
by which monarchic procure allied to aid them iii 
tiiiirp^tiohs upcfn th^ people's rights; and he sqUan^ 
dered ih folly the treaiMre which might have made 
faiA fe&i'ed abrosid, fitid r^spefcted at home. Des^ 
titttt6 fidt only of the qualities that wid, atid the 
talents thsit dazzle^ and impose upoli mankind^ 
but of even the essential virtue of ordinary since- 
rity, he soon forfeited the confidence of his sub- 
jects ; WMle, in his whole conduct, he evinced a 
total want, iiot only of common discretion, but of 



* The arguments put by Raleigh into the mouth of the council- 
lor in his dialogue^ were assuredly prevalent in his lime ; and the 
reader will fin^ how the courtiers apprehended deposing principlels 
from parliaments. Prer. of Parliaments. 



SS6 iMTBODVCnOH.; 

common decenqri^-^efects sufficient, to sink ge^ 
nius itself, and £ltal. to men of ordin^ minds, but» 
above all, to one# ^ the mystery of whose power/' to 
use his own words^ << is not lawfid to be diluted, 
which seems to wade into the weakness of pjcin- 
ces, and diminishes the mystical reverence of 
them that sit in the thtone of grace V His 
foreign politics were as unpq^ular as his domes- 
tic* A matrimonial alliance with the. house of 
Spain, had aliena|;ed the aflbctions ,of even Ca- 
tholics themselves, from Queen Mary : The. re- 
membrance of that age, together with the persecu- 
tions on the Continent, a^id the effi>rts of Spain 
against the religion and liberties of England, ren* 
dered such an alliance now for the heir apparent, 
the horror of all good Protestants ; yet James pur- 
sued it with the utmost keenness,*— a proceeding 
the more inexcusable, as, at a former period, he 
had solemnly inculcated upon his son's mind, thq 
impropriety of marrying with a Papist. But this 
was only a part of his foreign policy which dis- 
gusted his subjects; for he, at the same time, 
thwarted all their predilections, and disappointed 

* Sandenioil^ p. 441. ^ Kogieir Coke, p. BB, 71, 78, 1£1, as to 
his diinkii^ low sensuality, profane swearing, and ridiculous canity; 
Welden is thonght satirical, so is Osburn ; but their account of things 
bears too msny marks of truth to be disr^;arded in the main, and 
is confirmed by others,— by passages in Clarendon, and in Racket's 
Life of Wilhiuns, tracU of the times, as Tom Tell-troaih, &c. and 
- above all, by the correspondence betwixt the king and Buckingham, 
published by Lord Hailes. (See also letters in M'AuIey's history, 
coitespondence^ that ought never to have seen the light* 



INTRODUCTION. 35? 

their hopes in regard to the French and Grerman 
Protestants, and the claims as well as inheritance of 
his son<4nJaw, Count Palatine of the Rhine, who 
had espoused his only daughter. While, therefore, 
'prelates and courtiers emulated each other in com* 
piiments to his inspired understanding, pronounc- 
ing him another Solomon sent to rule mankind, 
this king in vain endeavoured to suppress the 
voice of discontent and contemptuous reproach, 
by issuing proclamations against talking of affidrs 
of state :-— the general clamour was loud in pro- 
portioii to the attempts to restrain it, the com* 
men complaint being, << that Great Britain was 
less than Little England; that they had lost the 
strength by changing sexes ;** — b, just return for 
his affected contempt of women i^^-^^ and that he 
was no king, but a fiddler's son, otherwise he 
would not suffer such disasters at home, and so 
much dishonour abroad: That he assumed the 
title of Defender of the Faith, yet sufiered the 
Protestants of Germany and France to be extir- 
pated ! That he might almost have purchased 
such a country as the Palatinate, with the money 
sent on embassies } and that, by his promising the 
French Protestants assistance, he had only made 
them conlQdent to their ruin V 

It is unnecessary for us to do more, than just ob- 
serve, that when a prince, unsupported even by a 
yegiment of guards, and who, consequently, stood 

* Wilaon, p. 74p. 



\3iy, pfiblic ftt)inian alpn^ I\9{1 fifUen iQto such ison- 
teoipt, aybitwy gpyernippi^^ cquld not tqng be 
subiinitted to; — ^that such ^^bsurd pr^t^sions m the 
]{QQaarch made, must either \>e ab^Qdoned or a con- 
vulsion be uiu^vpidable. 

Jn order tQ throw 9^\voi on th^ pppolar party 
of Xl\^% age, 9^d yin^cat^ thf^ Houa^ of Stiwrt, the 
foriner h^ye hie^n i^pres^nte^ s^ a set of gh>oiQ% 
f«iaiti<», whofifs ^ASPqntWt ori^|i^t«4 ffl their dis? 
y)ce pf sona^ ceremopip^i^es alq^^ : Slit th^ ^ a mlsr- 
take, a^ the PpiiUpal niotiyes, though ifttimaje^coa- 
D^^ct^d with ihfi Refof n^^tipp^ ^wld hftve operated 
iiii^depenidepitly pf retigioiis zeal. H^d sHchj^hQ^eyer^ 
reaUy bee^ the £ic^ it was. s^refy^ as. qppardonable 
in the soyer^^ not tP grsitifj; thepi on ihs^t head* 
9fl it wpvW have bp^ pasy for him to,hay« regsaned 
their cpp$(l^ce. That h^ should h^ye appre? 
hen^ed da^gf r frc^n the ambition of the PvMrltan 
pireacheifs^ and t;herpfore have opposed tfaenix wa^^ 
to h£|vp bjeen pxp^ted ; bu^ the pppv^ar vpicp 
carried anthori^y with i,ih ^hi^ dpm^^ndpdt respect, 
and the true i^ay tp d^trpy the inliuence of svwh 
pres^^h^i^Sy was to yield to the geqera^ wj^h pf s|n. 
abrogation^ of certain cerei^P^^iies^ yrhi^ch, at that 
tin^e, would most probably hay^ gwen i^a^t^faction. 
If it be alleged, in defence of the ni^nwch, th«t 
his conduct sprang froxn pii^ty^ then kX must be 
admitted, that the fanaticism that di^ptated the ce- 
remonies was at least equal to that which exposed 
them, while there is a vast difference betwixt the 
feeling ^^hich stimulates a people to pursue their 



prewa]{Mwou<^ zeal tbsM^ voukl foito^ thooi to adapt 
tbeir w^rsb^ tp^ the pre^oncieiv^d dqUqm of an iiik% 
dividual. Suf:! the^jMApl^ 
fymfi^ whps^ ^Qcle$i^ti^gov^Dmept imvi the rcK 
ai4tlof pdlitii^ «^Qti¥^,ak«iO}Of tb(9 $wsi9d^^ptiQa 
too with tjbos^ ivbi^b lod to 90^ vrnkyMpf^emmtMoS 
pQpuUjr ]jgbt3:| wd hcinoe the oofiduGt ^ the no** 
C9Dfon»ists must likewise he. asci ibed ta political aa 
ImU as roHgioivs view» : wi^e the ceremoni^ wcm 
eff£oirGed fw ^he pwpow of ^odsLwmg ti»e hiuoan 
oifuidi it could mt be douhtedf that «very aicquiea* 
eonci^ would be productive of otbersi^ till die vrbole 
Catholic system were a^gaia entailed upon the . oa* 
tion*. The qawtentiou^ therefore!, did iiot merely 
regard existii^ ceremouiesi thougb tineae, were dia- 
lled QVk tbeirowaaccoimtt but in both parties^ flaw- 
ed from deeper principles. From, such a conteatt 
» patriotic Iree-thinkeri^ to- v^bom modea of wor* 
ship, abstractly considered, were indifi^ntt could 
not have stood aloof» hut mui^ have found hinv- 
self called upon to array aU his forcea on the po^ 
pular side^ both to rescue the people from oj^jMresr 
Qion^ and to support religioua tenets^ calculate to 
pramotepuUic prosperity* The leading menr of 
that 9g^, howwor^ were warmly attached to. the 
relcffmed reli^k>n» and they were necessarily alarnp 
^ wbeni they discovered^ in certaw cer^aoniesi an 
earnest of sk deeper invasion of the Fratestanti^tb, 
to advance the arbitrary designs of the court} while, 
that those whj» were cbiefly^actuated by political mo^ 



SGO INTRObOCtlON. 

ttves might not e^nee lukewatrmness' in espousmg 
die caiise of the non-cotiforming partyi the court 
industriously confounded them with Chat party, by 
branding with the name ci Puritan all who asserted 
the national rights. Even decent conduct seems 
to have involved men iii the same reproach*. The 
ridicule against this bod}^ has, therefore, been mis- 
placed ; at the worst, their principles, even ab-> 
stractly considered, were at least as reasonable as 
those of the party they opposed, and it is a secret 
to none, that every party or sect wfll always con- 
tain . adherents who push the common tenets ab- 
surdly far, and that' such will ever be singled out 
by their adversaries for thei purpose of attaching 
odium to the whole class. But, after all, iit is ex- 
tremely unphilosophical to determine the charac- 
ter of an age, or even of individuals, from their re- 
ligious dogmas alone, unless they be hostile to the 
public good ; and the indiscriminate condemnation 
of either, on that ground alone, perhaps bespeaks 
a species of bigotry, where it is not suspected, 
(being thought impossible,^ not inferior to that 
which is held up to scorn. 

In the preceding detail, sufficient causes of the 
popular spirit, which arose at this period, may be 
jiiscpyered, without imputing it, as has been done, 
irither to the revival pf classical learning or to the 
extraordinary talents pf leading men. Wherever 
the human mind is unqramped by the combination 

f See Htttdunson's Mem. vol. i. p. 11S> Hseq. 



INTRODUCTION. 361 

cf religion and pditics, it requires little more than 
a fair opportunity to assert its independence<^fdr 
human mature has undergone no change irom the 
time of the Greeks and Romans — ^and that oppor- 
tunity, aided indeed by other circumstances, was 
£ist opening to the nation. Public habits were 
the best support of the throne, and these the in* 
judicious measures of the Court shook to their 
centre : For, as the same habit o£ niind which- in- 
spired reverence for the monarchical branch of the 
Constitution, produced attachment to the popular 
as well' as to the privileges which had descended 
^6 the people from their ancestors, the Court, by 
striking at them, necessarily lost the other. Far 
then, from imputing the spirit of liberty to the re- 
vival of classical literature, which produced no 
such eftects in France, we may ascribe the high 
taste which popular characters had for the senti- 
ments of antiquity to the freer spirit which «ther 
circumstances, inspired. The knowledge of anti- 
quity operates according to the medium through 
which it is viewed, and in the bulk of the learned, 
who are eagerly advancing their own selfish ends, it 
only begets that supercilious arrogance which the 
pride of superior intelligence produces in naturally 
vulgar minds. The mass of the people have not lei- 
sure to devote themselves to the acquirement of 
classical literature, and yet, unsupported by them, 
individuals can do nothing. Indeed, it has been 
the mistake to ascribe infinitely too much to indi*. 
yiduals, for great occasions create, or rather call 



fort)^ talmita suited ta tbenii, wbile th« h%hQtlg^ 
IUU9 is lost or unknown in unf avours^Ue^ ^taigeii of so^ 
cioiy^ Wheo» however, talent is awakeued iota pab- 
lip Ufe by genial evqntSi, it r^-acti upon tb^ cQmmui- 
luty, as tbe leaders, confirmed in tbcArpripcipl^bsf 
s^dying the institutions and cimract^rs <^.antjqin-. 
ty^ diffuse a portion of tbeir own oiQi^e ^^alted viewa 
through the general mass.. But» ifknawlodgei was^ 
SQ employed by ome set of puUic meoy it was na les9. 
abused by another^i amongst whom itkmekmcboly 
to r^iUk Bacon himself^ who not only vivot^ in de^. 
fence of the king's right to impose duties on mer-r 
chandize at his own will, hut proclaimed his; Jt^ear^ 
diness to serve his master on any terms*^ In the 
year l6l$, he, by letter, begged the ChAncellar'& 
place, objecting to Coke for his popularity, ** as^ 
such were oo sure mounters for his Majesty's sad** 
dleji" to Hobart, as no statesman % and, says he, ^' If 
you take my Lord Hobart,, you shall have a judge 
at the upper end of your council-board^ and aju- 
othei? ajt the liower end, whereby your Majesty will 
find your prerogative pent. For, though there 
slliould be emulation between them, yet. as legists 
they will agree in magnifying that wherein they are 
best^-*"For myself^ I can only present ymir Ma- 
jesty with gloria in obsfiquioj yet I dare promise^ 
that ii' I sit in that pl^ce, your business, sball not 
9iake su^b short turns upon you as, it dotb, but 
when a direction ia once giiven, it shall be, pursued 
and peirformed, and jfour Majesty shall only be 
troubled with the true care c^' a king, which is, 



s 



to think ill chi6f wb^ti you w«ul4 li%V6^ dm^ i» 
chief^ and not how for the pA99<^^ V 

Such language leads us tp observe, that, in review- 
ing this reign, it i^ ii]9possH)le pot tffl feel f*r great- 
er indignation at the minirten;, whom the hope of 
preferment perverted from the path of duty, than 
at the monarch whose situation and waat of dis- 
cfBikm form some excuse for hia eondudt. 

When Bacon could act thus, it ia, Qot woodediii 
that the poets, wbo^ with scfme» and tiioae gf ea^ 
exceptions!, ha,ve generally l)een vepal, shpMJld have 
prostituted their pens to vecomaAend tbecovselves to 
the court. The dramatic productions of that age 
B$htd unequivocal proofs of th^ s{^rit o^* t^e, go- 
verament. It has heien said of S^iakspear^, who 
wrote cbie^ m l^\m]yeih^s. reigns, that we noyirhe^Q 
meet with meia^ion of English, liberty in l^ig^ works ; 
and indeed nothing v^?y sjbriking on that sutgect 
wa« to have been e^^pected from a ppet who wrote 
for the court i buit we^ e^ect„ and meet with,, libe-* 
ml sentiments, while; the ppio$jt. disgustingly oppo* 
site disgrace every page of hi^. successors. T^ke 
this a& an example of t|^e first: — £(enry VIIL 

* Bacoii's Warksj toL iiL p. S80^ See also^^' Remembrances of lus 
nugesty's decla]»tijOii^ touching the Lord Coke^" Id. p. 607. The oh- 
jecftipi;!^ to Coke were, tl^t l^ie opposed arbitrary meatures andL arbi- 
trary courts : d^at his oxpo^iljon of the law of treason was dangerous 
to the king ; and th^t, in his repp)r4^, whiph tend^ to cramp the 
prerogative^ bo ^ad not attended to his nu^esty's animadversions ! 
Some have attempted to defend Bacon's conduct^ by ailing the 
opinions of the tidies; but the answer to that is^ that he endeavoured 
tp raise his own fortune by holding up his conduct as opposite to that 
of Coke ; declaring himself a person who supported the prerogative^ 
while Coke wished to confine it. 



964f ^ iKTRODUdrMK. 

f 

ti^faen informed of the illegal contributicms by Wd- 
sey, is made to exclaim*^ 

" Have you a precedent 
Of thiiB oommiBsion ? I believe not any. 
We must not rend our Bobjects^/rom our bwi. 
And itkk them m our vfUl *."— Act I. sc 2. 

The doctrine of Shakspeare's successors may be 
estimated from the following passage by Massui- 
ger. Cozimo, great Duke of Florence^ represent- 
ed as a most virtuous prince, says, 

'^ TTe stand not bound to yield account to'lmy 
Why we do this or ihat^ the full consent 
Of our subjects being included in our wilL" 

But it is, unfortunately, not in this point only 
that a marked difference exists. The plays of the 
one period are, generally speaking, unimpeachable 
in their morality, while those of the other are abo- 
minably obscene, (in this respect, Massinger's form 
an exception,) and the Catholic doctrine is oc- 
casionally held up in them to veneration. And 
here it may be remarked, that though complaints 
of the decay of morality are too common in all . 
iages, there are too many proofs of the profligacy 

9 

\ 

* Some have imagined that this was written in James's txme> be- 
cause an allusion is made in Cranmer's prophetic speech to the union 
<»f the Crowns^ but that was clearly added afterwards, and the whole 
speedi has justly been considered as a compliment to Elizabeth. In 
the first years of Ji^nes's reign^, the stage had taken great liberties; 
but he corrected it Thus Mr. Calvert wrote to Winwood, 28th 
March, 1605*: ** The plays do not forbear to present upon the stage, 
the whole course of this present time, not sparing either the king, 
sjUtte, or religion, in so great absurdity, and with such liberty, that 
any would be afraid to hefur them." Winwood's Mem. vol. ii. p* 54« 



engendered by the court-rtQ allow us to indulge 
scepticism on the point. 

In Mr. Hume's history of James L^ we meet Examiii». 
with the same general assertions about benevolent §^«, ^ 
ce^ imprisonments^ proclamations^ the dispensing <»«mtofdie 
power, &c. which have already been so fully ex* entertuned 
amined by us } . and, though it will doubtless occur ^^^. 
to the reader, that the author proceeded upon the ^***^* 
assumption of having proved all those matters in 
the previous history, it is a singular fact, that, in 
his first historical publication, which comprised 
only the first part of the history of the House of 
Stuart, and at that time^ he did not mean to go 
farther back, all those assertions occur, unsupported 
by authority. It is not our purpose to resume 
consideration of those points ; but we shall be ex- 
cused for a few remarks upon the statement re* 
garding the opinions of the age, as to the extent 
of the prerogative. 

The learned author has alleged that the right of 
issuing proclamations, with, the efiect of laws, << was 
established by uniform and undisputed practice, 
and was even acknowledged by lawyers, who 
made, however, this difference between laws md 
proclamations, that the authority c^' the former 
was perpetual, that of the latter, expired with the 
sovereign who emitted them *:" — That, when the 
king's power of levying new customs and imposi- 
tions, by the mere authority of his prerogative, 
was disputed by the Commons, << it is remarkable 

• VoL vi. p. S% 



sd6 vivmtfimfbtti 

tbii^ jtl th^if deb&teii dn tbii iiilbject, the cdufti^ 
pleaded, as a precedent, th663tbnipl6 tf dll oihei 
heredftsU'y tnottsirchs in Europe, &ttd {larticul^rly 
inentimied the kingd df France aAdSjpaitl: iltoff 
was this ifead6mtig iteeiV6d by the hcms6 eith^i* 
with dutprisd t3f indigti^tio0. ThlSkt the membdt^ 
opposite either totit^tited themiMlvet vHlth detiy- 
Ing the justness of the inferencie, or they disputed 
the truth of the observation ; and a patriot meM- 
ber> in particular, Sir Roger Owen, even in argit- 
ing against the impositions, frankly allowed that 
the king of England was endowed With as aniplef 
power and prerogative, as any prince in ChristM- 
dom • ;" and that he, Mr. Hume, *« had not met 
with any English writer in that age, who speakii 
of England as a limited monarchy, but as an ab- 
solute one, where the people have many privi- 
legest."-Tthat lawyers, during Jameses reign, should 
have asserted that proclamations had the authority 
of laws, is not wonderful ; for some of the great- 
est of that class, as Bacon and Davies, perceiving 
that the adoption of such principles, opened the 
sure road to preferment, did not hesitate to pro- 
mote their own fortune, at the expence of all in- 
tegrity ; and, when their language is compare 
ed with that of their predecessors. It is calculat- 
ed to give us the- worst itripresiSion of James'd 
government. The laiiguage of authors also^ ac- 
commodated itself too much to thef opinions of 
tii« Courtj and works of a contrary description 

* Vol. vi. p. 73. t KoW Qk at the end of vol. vi. p. 568. 



were proscribed.' But itwoiOd Ibe amehacboijr 
&ot indeed, if imthing of the spirit of thdr an^ 
cestors were discemibl^ either m parHathent^ or 
in the writings of that age, tmftictikrly a« the seii- 
timetite prevalent at that monarch'^ accession, 
vrere thus eisrpresrsed by the leaker of the Com- 
mons^ ■% lawyer too^ who had no wish to oiOS^nd bfe 
new master^ Mtet telling the king, that he hop^d 
his Majesty wouki long, Nestdr-like, sit on the 
£«^liah throne, he says, '* the ark of government 
of which kingdom hath ever been steered by the 
laws of die same^ and these distributed to the ju- 
risdiotioai of the sev:eral courts of justice ; the com- 
manding and imp^ial court whereof is this your 
Mi^sfry^i Great and Hi|;^ Court of I^euiiament, 
by whose power rnily, new laws are to be institut- 
ed, tmpertect laws reformed, and inconvenient 
laws abrogated ; whose jujsrtice therein is such and 
so absdiute, that no mich laws can either be insti- 
tuted, reformed, or abrogated, but by the unity 
of the Commons* agreement^ the Lords' accord, 
and your Majesty's Royal and Regal assent} only 
to your Hi^ness's prerogative, nullity, by your 
own disassent to their concluiHons> belongeth ; for 
that this court standeth compounded of two 
powers, the one ordinary^ the other absolute ; or- 
dinary in the Lords' and Commons' proceedings ; 
but in your Highness absolute, either negatively 
to frustrate, or affirmatively to affirm ; but Hot to 
institute ♦.'^-^If principles of this kind, which 

* Journ. !2Sd March, 1$03. p. 146. 



968 iMTROOfJcnoK; 

ara sufficieiitly broad, and uttered too, on aB.oe^ 
casion which removed every suspicion, of their not 
having been quite prevalent, and understood on aH 
hands, be found, at an after period of that reign, 
no longer to have apparently animated the Com- 
mons, we must form a melancholy opiniiHi of that 
monarch's administration ; and merely conclude 
that, since the spirit that dictated free prineij^es, 
burst out with such force a few years afterwards, 
men only suppressed, though they did not ioiget, 
what belonged to a free people, till an opportunity 
was brought about by the mad pretensions of the 
court,, for correcting its abuses and usuipati(»i, 
by a unioii of all the independent classes.— 'But 
the historian has allowed himself to • fall into in- 
conceivable errors on this . subject, by having, 
through some^atality, singled out every insulated 
passage or expression that seemed to warrant his 
pceeoniceived opinions, while he passes over the 
.context, which places matters in so very different 
,a light, as to develope the highest principles of 
civil liberty. 

The right of imposing new duties at th^ ports, 
.by the mere authority of the prerogative, had been 
usurped by James, and decided, by venaljudges, 
to be. inherent in the Crown. The' Commons had 
warmly taken up the subject before the dissolution 
of Farliisuqnient in 1610, and theijr successQrs rjssum- 
ed the question where they had left it, in the be^ 
ginning of the next Parliament, which was assem- 
bled in 1614. A search was made by them into 
precedents, and it was resolved by the whole 



INTRODUCTION. 369 

Houses without one dissenting voice, that the 
King could not impose without the authority of 
the Legislature *. The Commons, who managed 
the question with no less prudence than ability, 
desired a conference with the Lords upon it, that 
they might jointly petition his Majesty, " with a 
remonstrance of their right :" and it is in their in- 
structions to the members whom they nominated, 
to conduct the debate at the conference, that the 
passage occurs on which Mr. Hilme has grounded 
his assertion about proclamations having, admit- 
tedly, the effect of laws during the life of the mo- 
narch who emitted them. In the legal argument 
that had taken place in the Exchequer-chamber, 
various grounds for the pretended right had been 
advanced j and however unsubstantial these were, 
it was necessary to meet them ;* for, since the 
, Judges maintained the usurped power of the 
Crown, if the King did not make concession to 
Parliament, there was no alternative but submis- 
sion,^ or an appeal to that last resort which wars 
tried in the next reign, and which is only justifi- 
able when other remedies have failed, and when 
there is a fair prospect of success. On this prin- 
ciple the commons acted, — a principle that the 
historian appears, not only here but elsewhere, to 
have overlooked, though it fully accounts for the 
line of argument adopted by them in this instance, 
. as. well as for that acquiescence in certain partial 
irregularities of former times, which affords the 



* Journftlfi^ 12th May^ 1614, p. 81. 
VOL. I. 2 B 



S70 INTRODUCTION. 

basis of his humiliating theory of the atieient Eng- 
lish government. The Commons divided the ar- 
gument into nine different branches, which were 
again split into minor ones ; and they assigned one 
only to an individual, or to two or three conjoin- 
ed : and, as James had claimed and exercised the 
power by means of proclamations, that point, with 
other matter, was assigned to one member, >(^ho 
was instructed to argue, that his Msqesty had im-' 
posed for himself and his heirs, by letters patent, 
but that this was strange, as proclaifiations were 
only obligatory during the life of the monarch who 
issued them, and therefore he could not impose but 
for his own life. The journals are remarkably suc- 
cinct and indifferently expressed ; but it is e^y frcai 
this to infer the whole line of argument on that 
head*. Customs were said to have been originally 
imposed by the prerogative, and it was argued 
that the subsequent grants by Parliament implied 
a liberality in the particular princes, but could not 
derogate from the royal authority. The answer 
was, that if the ancient princes had done it, the 
right could only have been exercised thrcmgh let- 
ters patent, as James himself had effected it ; but 



* Journals^ 12th May^ 1614^ p. 4S1. To prevent mittcdnceptioB, 
I shall here give the precise words of the Journals. " 1* An intr^ 
duction^ briefly declaring matter in fact^ and the state of the ques- 
tion. — Direction to him in three things^ wherein we conceive the king 
to have^ by misinformation, done other than any of his ancestor. I. 
The time : For now by letters patent, and in print, these impositions 
set for him and his heirs for ever ; which never done before : which 
strange; because no proclamation bindeth longer than the king's 
life ; 80 could not impose, but during his own life.^ P. 4»1. 



INTROBUCXIQN. 37 1 

that was inexplicable, since these ceased to tie ob- 
ligatoiy with the life of' the monarch who emitted 
them i and the mode in which the alleged right 
either was, or could be, exercised, proved that the 
inference, from the obscurity which hung over the 
origin of ancient customs, was erroneous. It is 
vain to argue, that, in this, we have a proof that 
proclamations might be issued ^ for such a right 
has ever belonged to the Crown, under the condi- 
tion that the proclamations shall be agreeable to the 
laws } and, though James himself arrogated a right 
above law, a pretension in which he was supported 
by Davies, the most politic lawyers, as Bacon, ar^ 
gued that proclamations for new duties at the 
ports were conformable to the common law, which 
had given that power to the monarch. If Mr. 
Hume were entitled to draw any conclusion from 
this in favour of proclamations, it could only be to 
the extent of imposing customs — ^the subject on 
which the passage had occurred, and to which it 
exclusively referred. But, on that point, we learn 
from himself, that the Commons utterly denied the 
royal power ; and had they done otherwise, James 
would soon have withdrawn the objection by new- 
modelling his proclamations. Did any doubt re- 
main on this head, it would be removed by the other 
branches of the argument-r-one of which was found- 
ed upon "the common law, the sinews of the bodypf 
the commonwealth, witb some statutes strengtheni^ 
ing it ;" another upon the cessation of any attempt to 
impose during the reigns of ten great princes, who 
could notbe presumed to have taken asgiftsfromthe 



S72 INT110DUCTI0N4 

people what they might have exacted of their own 
accord. How, then, Mr. Hume should have dis- 
covered, in this insulated passage, authority for 
stating that lawyers admitted proclamations to 
have the effect of laws, is inconceivable, and our 
wonder is increased when we consider that he 
himself refers to a petition of grievances in 1610, 
to which, however, he has not done justice, where- 
in this very power is most directly declared to be 
destructive of the liberty of the subject — as con- 
trary to " the indubitable right of the people of 
this kingdom, not to be made subject to any pun- 
ishment that shall extend to their lives, lands^ bo- 
dies, or goods,'* (if it extend not to these, to what 
does it extend ?) ** other than such as are ordained 
by the common laws of this land^ or the statutes 
made by their common consent in Parliament *." 
Thus much for proclamations. 

James was the first English monarch who ever 
founded his pretensions upon the powers of fo- 
reign princes in regard to their subjects ; and 
though the English people were perfectly aware 
of their privileges, some of the commons, who per- 
ceived that a crisis was fast approaching, endea- 
voured to gratify the king's vanity^ while they 
vindicated public rights, by acknowledging, on 
the one hand, that, in authority, he was not infe- 
rior to foreign princes ; and, on the other, argu- 
ing that, by the laws of other nations, the sove- 
reign could not impose, without the intervention 

* See Petition in Howel's State Trials^ vol. ii. p. 619, ei seq. parti-t 
cttlarlj 144, with the list of illegal prodamationa annexed. 



INTRODUCTION. 873 

of the three estates, any more than in England. 
This, accordingly, was one branch of the argu- 
ment to be maintained at the conference, and it 
V^BS undertaken by Sir Roger Owen, the very 
member who had ascribed to the English king 
.^qual power to that enjoyed by any other in Christ- 
endom*. The subject of impositions had been 
irequently discussed in the Lower House, where 
many admirable speeches had been made on it, 
and the writings of Commines and Fortescue had 
b^en quoted in proof of the ancient superiority of 
the English government f . Some days after the 
motion for a conference with the Lords, when on 
another question, it had been resolved that " the 
parliament could not give liberty to the kiag tp 
make laws," the grand subject of imposition^ 
was again introduced, and Mr. Jones having ob- 
served« that the king could no more impose duties 
for protection upon the sea than upon the land; 

* When Sir R. Owen made this admission^ he stated that it ap- 
peared by many acts of parliament^ the king could not impose; 
whence it follows that Mr. Hume's statement rests^ at the best^ on 
an abuse of words. It was allowed^ on all hands^ that the English 
king could not make laws without parliament; ai|d this pi^mb^r 
stoutly denied his power to levy duties without a grant by the 1(9- 
^slature. But^ if he were thus restrained^ it is ridiculous to talk of 
the unlimited extent of his prerogative^ And the utmost that could 
be said on the subject i^, tl^at Sir Roger Oweii^ with some others, 
was not acquainted with the wretched condition of foreign states^ 
though he shewed himself perfectly familiar with the rights of lus 

countrymen. The after debates^ however^ fully explain this matter, 
t See Yelvertdn's speech in Howel's State Trials. No. 737 of Har. 

M8S. is a copy.of it^ with the remonstrance of the Commons prefixed. 

See also the journals for Skeletons of Speeches this session^ 1 8th Aprils 

p. 466^^167. 5tli May, p. 47% 473, 474. l^th May, p. 481, 482. 



J'.- 



t. 



874 INTRODUCTION. 

that, though the sovereign might restrain any tnati 
from quitting the kingdom^ if danger were a|)pre- 
hended from him, yet he could not grant a dis- 
pensation for money; and that the power arro- 
gated by the crown, would reduce the people to 
villanage; — Sir H. Wotton stated, that he waii 
troubled with Sir Roger Owen's part, as it would 
be found that, though the power of imposing be- 
longed not to elective princes, it did to hereditary j 
that, on this principle, the emperor could only im- 
pose in imperial diets, and the King of Poland 
^as equally restrained ; but that every petty prince 
in Italy imposed by the mere authority of his pre- 
rogative : — That the king of Spain could not im- 
pose in Arragon where, at his coronation, they 
say, " We, as great as ydu, make you king to rule 
us according to our laws :" Yet that in Castile, 
he imposed at discretion ; and that, in France, ^ 
the king imposed by virtue of his prerogative, and 
the last king, Henry IV. levied 5^14,800,000, by 
a tax on salt, which he, at the same time, obliged 
every family to purchase. This member con- 
cluded with the remark, that an hereditary prince 
had greater power than an elective. To this. Sir 
Roger Owen himself replied, that no prince in 
Italy anciently exercised such a power ; and that» 
while he admitted the practice of the kings of 
France and Spain, he maintained that the legaJ and 
constitutional principles of those monarchies, as ap- 
peared by their law books, denied such authority to 
the sovereign. He farther observed, that the ori- 
gin of kings was by election and coment The se- 

4f 



IKTBODUCTION. S^S 

cretary^ on the other hand, stated, that though he 
•did not mean to maintain the right of imposing, 
yet that it would appear, upon due examination, 
that, de facto, foreign princes did impose, and he 
must hold that they did it, dejure, till the contrary 
were proved. Three members then successive- 
ly spoke on the popular side: — The first. Sir 
Thomas Rowe, remarked that the dukedoms of 
Florence j^nd Milan were mere tyi'annies ; and 
that the first king who ever imposed in Castile, 
had authority from the cortes, which corresponded 
with our Parliameut. The next was Sir D. Diggs, 
who asserted that the true ground was nolumus 
leges AnglicB mutare, and q,ll the rest was but illus- 
tration; << and, to cross the unfit persuasions of 
some, which tell the king they do it in France and 
Spain, and he is as great as they/* The third, 
who followed on the same side, was Sir Edward 
Sands, who remarked how weighty impositions 
by prerogative were, since one prince had by a 
single tax levied Ltl4,800,0Q0,and enforced people 
to purchase the article : " That the king of France 
and the rest of the imposing princes also made 
laws which would, in a short Ume, bring all to a ty* 
rannical course, with confusion both to prince and 
peojpfe/'-T-a point which he illustrated by alluding 
to the death of the late king ;— -that there was no 
sovereign who had not been originally elective ; and 
^ there was a double election of person and care,'' 
(duty) " but both came in by consent of the people, 
and with reciprocal conditions between king Und 
people :" That a king by conquest might also be 



376 INTRODUCTION. 

expelled whenever the people had power ; and 
that it was no argument to say, that because the 
king of France imposed, the king of England might 
likewise*. This language will not be denied to 
be boldly constitutional ; and it was a fact taken 
for granted on all sides, that England enjoyed pri- 
vileges beyond the continental states. 

With regard to the writings of that age, it is 
scarcely necessary to observe, that if they realJy 
were all of the stamp described by Mr. Hume, it 
would only prove that the arbitrary government 
of James had succeeded for a season in crushing 
the liberty of the press, — a, measure which he 
evinced great anxiety to accomplish. But, though 
in writings intended for the court, there be too 
many proofs of a servile spirit, works of an oppo- 
site description found their way into the world. 
Not to allude to those which held up James to 
scorn, as Tom Tell-Troath, &c., we may observe 
that a new edition of Fortescue's work, De Laii^ 
dibits Legum Anglice, with notes by Selden, was 
published in I6l7,and that Smith's Commonwealth, 
which, from the modesty of the author, had before 
that been only circulated in manuscript amongst 
the learned, was printed in 1609. Sir Thomas 
Overbury, in his travels, makes observations upon 
the institutions of different countries, and remarks 
that the government of the united provinces re- 
sembled that of England ; that the government 
of Flanders was more arbitrary, and that France 

* Joumalt for Slst Mtiy^ p. 492^ and 493. 



INTRODUCTION. 377 

was an absolute monarchy, where the prince might 
act at discretion *. But the very books to which 
Mr. Hume refers in support of his own theory, 
prove that France was in a very wretched con- 
dition in comparison of England : Davies' work 
on impositions has already been referred to by us ; 
and though it be one of the most exceptionable 
performances in the language, and the author 
maintains the king's power to raise his prerogative 
above the laws, he states explicitly that it had not 
been done. Raleigh's prerogative of parliaments, 
conceived in the form of a dialogue between a 
councillor of state and a justice of peace, has also 
been quoted by Mr, Hume, who has singled out 
the passage which appeared to him to imply abso- 
lute power in the prince ; but, though the work 
was dedicated to King James, and contains some 
strokes of flattery that were to have been expected 
from a prisoner under sentence of death, who 
anxiously desired his life and liberty, — as well as 
from one who had, in the preceding reign, been a 
thorough courtier, and had shared some of the 
smiles of his mistress at the expense of the people, 
(he had some monopolies t) the whole tendency of 

* Overbury's Trayels. The MS. in tlie Library at Lambetli cor-: 
responds with that printed. He travelled in 1609. 

t Mr. Hume^ in note Q» says^ that ^^ Raleigh was thought to 
lean towards the puritan party ;" — ^and, as they pitied his misfortoneSy 
and complained of his treatment^ it was natural for him to wish their 
support^ — his great enemy Essex had courted both Papists and Puri- 
tans at the same time, (Cambden in Ken. p. 630.},— -but so far was 
he from supporting them in his writings, that a passage is quoted by 
Sanderson from his history of the worlds p* ^9«> which is not only 



SrjS XMTRODUCTIQBr. 

the work is not only to dissuade the prinoe frocgK 
raising monej or making laws, but from project- 
ing peace or war, or even appointing bis ministers, 
judgesi &c. without the interposition of the legis* 
lature. Upon such conditions, it might justly 
gall the pride— though it savours much of the or- 
dinary language, which makes parliament, people, 
every thing, the king's, — but must be innocuous^ 
to the privileges of parliament to say, that the 
prince exercises absolute power through his grand 
council ; and the following language which the hisr 
torian has quoted, ceases to have weight :-^^' Com- 
cillor, that which is done by the king, with the adr 
vice of his private or privy coimcil, is done by the 
king's absolute power/' '< Justice, and by whose 
power is. it done in parliament but by the king's 
abadute power ? Mistake it not, my lord : The 
three estates do but advise, ^ut the piivy council 
doth ; which advice, if the king embrace it, be- 
comes the king's own act in the one, and the king's 
law in the other } for without the king's accepta- 
tion, both the public and private advices be but 
as empty egg i^ells *•" In another place, how- 
ever, the justice is made to use different language. 
" Except," says he, " England were as Naples is,^ 
and kept by garrisons of another nation, it is im- 

ft 

fftrottg in fsTOttr of caemonies^ but is allied hj Santosoa to be pto« 
flieticDf the evils which afterwards arose from the Puritan p«rty. 
Sanderson's James I. p. 311. We leam fi^dm Mr. Hume himself 
that Raleigh tried to save his life by feigned madness^ &€> 

^ P. 107^ 108. This is the language of the <xmB<itutj«i> at wa 
have already repeatedly said* 



IKTRODUCTIOtf. 379 

possible for a king of England to greaten and en^ 
rich himself by any way so assuredly* as by the 
love of his pe<^le.'* " CotmcUlor, Why should not 
our kings raise money as the kings of France do, 
by their letters and edicts only? for, since the 
time of Lewis the XL of whom it is said that he 
freed the French kings of their wardship, the 
French kings have sddom assembled the estates 
for any contribution. Justice. I will tell you why# 
The strength of England doth consist of the. peo- 
ple and yeomanry, the peasants of France have no 
courage nor arms : In Fra»ce,'^^every village and 
borough hath a castle, whidi the French call chaS" 
teau villain^ every good city hath a good citadell, 
the king hath the regiments of his guards, and his 
men at arms always in pay ; yea, the nobility of 
France, in which the straagth of France consists, 
do always assist the king in his levies, because 
themselves being free, they made the same levies 
upon their tenants* But, my Lord, if you mark it, 
France was never free in effect from civil wars, 
and lately it was endangered either to be conquer- 
ed by the Spaniard, or to be cantonized by the re- 
bellious French themselves, since that freedom of 
wardship *.** In another place, where he speaks 
of the former power of the peerage in regard to 
the Crown, in comparison with their present, he 
says : " The force, therefore, by which our kings, 
in former times, were troubled, is vanished away. 
But the necessities remain. The people, therefore, 

• p. 1% 13. 



380 INTRODUCTION* 

in these later ages, are no less to be pleased than 
the peers; for, as the latter are become less, so, bj 
reason of the training through England, the Com- 
mons have all the weapons in their hand ^." 

Tliese passage^ are sufficient for our purpose, 
and we shall not encumber our pages with farther 
quotation on the subject : But content ourselves 
with observing, Ist^ That Raleigh took a just view 
of the political situation of the country, while the 
monarch and his descendants acted under infatua- 
tion in attempting to govern upon the principles 
of the French monarch, wheb they neither had the 
army to second their will, nor such a state of so? 



* p. 61. The same idea is inculcated in the two next pages. '' I 
have ever/* says the justice^ " to deal plainly and freely with your 
tardahip^ more feared at home popular violence than all the foreign, 
that can be made." ^' The power of the nobility being now withes- 
ed^ and the power of the people in the flower^ the care to content 
them would not be neglected ; the way to win them often practised^ 
or at least to defend them from oppression. The motive of all dao- 
gers that ever this monarchy hath undei^ne^ should be carefully 
lieeded^ for this maxim hath no postern^ potestas hutnana radicatvr 
in voluTdaHIms hominunu" Mr. Hume mentions Ihat this work was 
not published till after the author's death ; but we must not' thence 
infer that his style was not so guarded as if it had been published by 
himself, for it is dedicated to James^ and the address is most fulsome. 
The work is^ in many respects^ not unworthy of its author ; and the 
effect of his system would have beea to give much nominal^ no 
real power to the crown. The whole argument too proceeds upon 
the assumption^ that a more arbitray government than had ever been 
in England was now attempted. — See p. 110^ about illegal imprison- 
ments^ which appear to have been numerouf. Had Mr. Hume atten- 
tively perused Raleigh's performance, he would have discovered his 
mistake about benevolences, see p. 9S, et seq, ; and likewise in r^ard 
to new year's gifts, which appear to have been liberally bestowed 
upon oourtieni. P. 71. 



IKTRODUCTIOir. S81 

ciety as prevented the great body of the people 
from acquiring influence, and made it the interest 
of the nobility, in whom any political power was 
lodged, to support the measures of the court 
against the rest of the community ;-^a fact which 
appears still stronger, when we consider the fre- 
quent resistance to the ]l?rench system, though it 
possessed all these advantages. Qdly, That the 
very circumstance of this family having attempted 
to fashion their government by that of France, in- 
stead of confining it within the limits of the an- 
cient practice, not to say constitution, is of itself 
conclusive against the defence which has been 
made for them, — that they acted upon the princi- 
ples recognised at their accession. 



382 INXBODDCTION. 



CHAP. IV. 

Pte9€niing a Picture of ike State of Scoihnd, iogeOier 
with an Account of the Government of that Counfyy. 

Before the union of the Crowns by the acces- 
sion of James to the English throne, great part of 
Scotland was little removed from barbarism, and 
it resisted improvement till a late period. Even 
in the most civilized districts of the Low Country, 
society, in the most important respects, appears 
not to have attained that degree of refinement 
which it had reached in England, about two cen- 
times before *. Towns had risen to little compa- 
rative eminence; manufactures, by which alone 
the great body of the people, where the territory 
is appropriated by a few, can be emancipated from 
dependence on the proprietors of the soil, were in 
a state of infancy; and commerce was confined to 
the importation of a few articles in exchange for 
staples chiefly, though some coarse manufactures 



* The eondition of the third estate compared with that of Enghukly 
down till the reign of James^ affords a strong proof of this. See this 
Bulject discussed afterwards. Yet^ considering the misery £ngland 
had waded through in changing from one state of society to another, 
we can scarcely congratulate her on her improyement in lome of the 
preceding reigns. 



were also exported *. Large estates resembled petty 
principalities, the lords of which, while they tramp- 
led with impunity on the inferior classes, frequently 
gave law to the sovereign f. Their feuds were 
inveterate, and conducted like wars betwixt fo- 
reign states: Murders, burnings, plunderings, 
and devastations disgraced the community, and 
the aristocracy endeavoured, by formal leagues or 
associations amongst themselves, to obtain that se- 
curity — against powerful neighbours often, again, 
banded for their destruction — ^which the laws could 
not afford t. 

* Moryson's Traveb, P. iiL B. ili. ch/4. Spottiswoode's Hist p. 490. 

f Buchanan's Hist, and the first part of {he first vol. of Calder- 
wood's Manuscript Hist, in the Adv. Library^' present a lamentable 
inctlure of society. Spottiswoode's Hist is a valuable perfbrmance for 
Che light it throws on this subject. The little respect paid to royalty 
is conspicuous in every page of Scottish history. Few of their kings 
died a fair death : and it seems to have been a matter of great import- 
ance to get a prince into their custody. Thus^ m 1526, Sir Walt. 
Scott of Baldugh, or Buocleugh^ was anxious to take James V. 
from ihe Earl of Angus^ and the yocmg king inclined to a change of mas- 
ters^ bftt the earl's brother^ having in vain attempted to prevail with 
him '^ by aHuring words" to hasten his paoe^ resorted to a more con- 
vindi^affgiimait : '' rather/' says he, '' as the enemies take you from 
tiB^ we tnust keep one half of your body with us." Calderwood's MS. 
Hist. vol. i p. 36. The Earl of Arran wished to get possession of the 
young queen's person in 1543, *^ deeming by that means that he 
should have upon his side, not only the shadow of her name, but 
also might dispose of her marriage as he thought good, and either 
i^ed the English king with promises, or draw him to his partie." Id. 
p. 167. The repeated attempts to seise King James VI.'s person by 
• Bothwell, not Mary's paramour, are well known, likewise the raid ai 
Ruihven, Cowrie's compiracy. A lively picture of the tyranny of 
the 4iristo0racy, and the consequent misery of the people may be seen 

in the Bas. Dor. p, 160. 

t As a proof o£ the state of the country, we^may refer particularly 

to the following authorities. Spottiswoode, p. 61, 63, 70, 186, ld7. 



884k INTRODUCTION. 

During the papal supremacy, the church, it is 
alleged, though perhaps with some exaggeration, 
enjoyed nearly half the territory of the kingdom, 
independently of her immense revenue from tithes, 
and was of course great and powerful. With that 
disposition which ^1 bodies of men never fail to 



The country was in 1571 convulsed with civil war^ and to such a 
height did faction run^ that fathers are represented as having heen 
opposed to their own sons. Even children that could scarcely speak 
had their plays founded on such distinctions. P. 253 — 273, 306. — ^In 
1583, the Church represented to the King, that there was a universal 
murmur, that no man could he assured of his lands, not even Itfe, 
the laws of the country heing wholly perverted ; and they regretted 
the division of the nohles, one party seeking the overthrow and ruin 
of the other, p. 327— P. 347, 382, 4, 6, 7, 8, 390, 400-1, 7, 8, 9, 411, 
blood and slaughter were common, and it was impossible to bring the 
guilty to punishment. P. 443. James boasted of having drawn 
Scotland out of infinite troubles, factions, and barbarities. P. 488.— 
He recommends to the Coundl (an. 1603,) to remove barbarous 
feuds, and prohibits the custom of entering into associations for mu- 
tual security, and as presumptuous in subjects, who should depend 
on the laws, p. 490 — 496, 504, 510, 528. Calderwood's MS. Hist. 
Vol. I. first part of it, he says, that in 1514 the country was greatly 
disquieted with robbery, slaughter, and oppression. The country 
was rent with faction ; bands and confederacies were common, and 
it wa& not accounted the greatest evil that M'Robert Stroven overran 
Athole and the adjacent counties with 800 thieves, and s(Mnetimes 
more. P. 4, et seq. See p. 44, et seq. for the subsequent state of the 
kingdom. See also his Printed Hist. p. 129 to 132. P. 142, 149. 
Mr. R. Bruee admonishes the king to execute justice upon malefac- 
tors, at the haTsard ofhu life. For that the L(»rd would assist him, 
if he prayed to him for resolution ; but that if he did not act so, 
" he would not be allowed to enjoy his crown alone, but every man 
would have one." 265. Bothwell's attempt upon Falkland Palace, 
accompanied by borderers. 271* The raid of Leith, and other mas- 
ters. 298, 306. In p. 319, a most horrible picture is presented. 
Johnston, p. 55, 73. 



JJiTR0i)UCTIONt 385 

poss€|ss, and which, with little truth, has been im- 
puted in a greater degree to the clergy than to 
other incorporations, the church was ambitious 
for pre-eminence, and naturally embraced over- 
tures from the throne for repressing the exorbi- 
tant power of the aristocracy, hurtful alike to the 
pretensions of both*. From their habits, less 
powerful in arms than their territory would others 
wise have promised, the clergy yet far outstript 
the nobility in knowledge and industry; their num- 
ber and influence in Parliamept were great, and 
as they generally filled the high offices of state t, 
for which their superior mental attainments quali- 
fied them, they could give such a strong direc- 
tion to the current of affairs as to render them 
potent allies to the throne. The arrogant preten- 
sions and wealth of the Scotch church under the 
papal system have been a fruitful theme of decla- 
mation J but it would argue little knowledge of 
human affairs not to admit, that, in former times, 
her power was salutary. Land, in her possession, 
could not be more injurious to the general interest 
than in the hands of a haughty aristocracy : on 
the contrary, there is every reason to believe that 

* See Stuart's View of the Refonnatioii. 

t Cjalderwood^ in his MS. History^ Vol. I. p. 1, et seq. says^ that 
the prelates were introduced into all civil offices of importance^ after 
the battle of Flowdon Fields because there did not remain a sufficient 
number of the nobility qualified to fill them. See Sir Ralph Sad-« 
dler's Letters and Negodations^ p. 61. Sir Ralphs by order of bis 
master Henry VIII. advised James V. to seize upon the religious 
houses to increase his revenue^ but James would not listen to the; 
sacril^ous proposal. P. 37* et seq* 

VOL. I, 2 C 



dB6 iUfmi^xittiM^ 

h^r v^sald Wei'e far more independent than those 
of the nobility, an incorporation being ever the 
best landlord ; and it was their interest equally 
with that of the Crown ^ to counterpoise the strength 
of the tiobility by supporting the privileges of the 
loWet" orders. But her ittachraent to the throne, 
ift opposition to the aristocracyj provoked their 
hatred, as her wealth excited their cupidity, and 
these passions burst into action the instant the re- 
formation promised to gratify them. 
Annoi4oo, The opiuious of Wickliffe had, in the beginning 
spottis- of the fifteenth century, penetrated into Scotland*; 
^ but the soil was not yet ripe for their reception. 

When the Reformation had begun to convulse the 
i*est of Europe, it reached that country, though 
somewhat later than it had done the sister king- 
dom ; and, as usual, the attempts to arrest its pro- 
gress by persecution, gave it additional vigour t. 
§uch a grand movement of the human mind could 
not want a leader, and in Khox it found an able 
and a zealous one. Not to tim, however, but to 
the natural course of events, is its peculiar direc- 
tion in Scotland to be ascribed. In England, the 

* See Knox's History of the Reformation^ p. 1. et seq. Spottis- 
woode^ p. S6» Calderwood^ MB. in Adyo<»ite8' Libi!tiy> Intr^. p. 93. 
Printed Hist. p. 1. 

t €pQfttii3WoOde> p. 63 to 65. Cftlderwood's M8. Hii^. p. ^ mdi 9. 
tSeiutn's Hist <if the Reformfltioti. Yet in \&60y yrbi&a the Rdbnna- 
tiOfi h^ gained considerablej ground^ the Popish j^ektes were silent 
in Parliament ^hile the Catholic doctrine trass assailed : Upon which 
the £aTl Marshal ohisei^ed, that he had been formerly jes^oas <X 
the lU^ralsh religon^ but was ftow confirmed in iStte trath df the new 
doctrine^ since the Catholic Bishops coHild say nothing in favour of 
the Pope. Spottiswoode^ KO. 



inxBODUCTicn^* $&7 

sovm^g/as lacing himself at the head o£ the Re* 
f ormatioDt was eaabied^ from the peculiarity of his 
situation, to preserve episcopacy against the wishes 
of the people. In the other country, the power 
of the sovereign was too limited to stem the tor- 
rent, and as she vainly endeavoured to withsta?id 
the innovation altogether, it necessarily took that 
direction which the influence of the Prince had 
prevented on the southern side of the Tweed. 
Nor is its course less to be attributed to the self- 
ishness of the aristocracy, and even of part of the 
Protestant ministry, than to the piety of the peo- 
ple, and the rest of their pastors* The plunder of 
the English church bad whetted the cupidity of 
the Scottish aristocracy, who were sufficiently pre- 
disposed against the clergy^ and who descried, in 
the downfal of bishoprics, abbeys, &c. great acces- 
sion of territory and wealth to themselves *: Tlie 

* Thk may be laitly infenred from their conduct : and tliey are 
charged directly with preferrmg the Piesbyterian Eslablii^fnent from 
the hope of pl«nda*. Johnston^ Hist. Rer. Brit. p. 16. £d. 16&B. Spott. 
p. 86. '^ The gentlenoen of the west oomplain of the expressions of 
churchmen, aad a prochimation to attend the holders in aserrice 
a^gainst £nglaad affording a pretext, some of them entcsred the Queen 
Regent's chamher, and one Chahners of Gaitgirth said, *' We know, 
Aladam, that this is the device of die Bish<»p»^ who stand by you : 
We avow to God it shall not go so, they oppress us and our poor 
tenants for feeding their idle bellies, they trouble our preachers, and 
seek to undo them all : We shall suffer it no longer. With that every 
man made to his tueetpon" P. 94-5. What followed ? ** To our great 
grief," said the reformed clergy, '' we hear that some gentlemen are 
now vaore r^oroos in exacting tythes and other duties paid before to 
the ehurch, than erer the Papists were, and so the tyranny of priests 
is tamed into the tyranny of lords and lairds.*' P. 164. The aris* 
tocracyobtaiped almost the whole patrimony of the kirk ZBto tb^ 



S98 INTBODUCTION. 

Protestant clergy had avowedly, at the same time, 
expected the property or patrimony, as it was call- 
ed, of the kirkj as the reward of their piety*. 

own hands^ and they afterwards supported episcopacy from the same 
motives that they at first desired its overthrow— to get possession of 
the church's revenue. See Address to the Reader, hy the Editor of 
Calderwood's Hist. — . That there was then much genuine piety 
in Scotland, every one acquainted with the history must admit ; yet 
many of the aristocracy seem to have heen so guided hy interest, and 
were so tyrannical and cruel in their conduct, that one might have 
almost said to them as the unfortunate Earl of Essex did to Tyrone, 
who talked of his conscience and religion. " You mention religion. 
You have no more religion than my horse." Moryson. Hundy, for 
instance, had proclaimed himself a Protestant, and yet, to win favour 
with Queen Mary, he turned Papist again. Spottiswoode, p. 175. 
See p. 187. Profane swearing and the use of God's name were com- 
mon. Calderwood, 318. 

* Johnston says, that when the parity of pastors, according to the 
platform of Geneva, was once hroached, there were two sects of men 
eager for it :— Laics, who supposed this the direct way to obtain spi- 
ritualities into their own disposal ; and the clergy, who expected to 
raise themselves into greater honour. Hist. Rer. Brit P. 16. Spot- 
tiswoode, p. 159, 160, 164, particularly the last; 187, 199, 209 — 10. 
The clergy maintained, " that the patrimony of the church consisted 
of lands, buildings, possessions, annual rent&— besides tythes, manses, 
glebes, and the like, together with all that ever has been given to the 
church, or that may in future." Spottiswoode, p. 297. '' To take 
any part of this patrimony by unlawful means," say they in their 
form of church policy presented to Parliament, an. 1578—^' and con- 
vert to the particular and profane use of any person, we hold a detes- 
table sacrilege before God." P. 297. Calderwood informs us, and 
he is the most imexceptionable authurity, as being of the party ob- 
noxious to the court, that the ministry acquiesced in certain r^ula- 
tions for their stipends, till the church came into full possession of 
her own patrimony, the tithes. P. 43. Spottiswoode is condemned 
for his severe censure of the Presbyterian party, after their disgrace- 
ful schism in the Presbytery of St. Andrew's. '^ On this occasion,'* 
says he, '' men noted, that of all men none could worse endure parity, 
and loved more to command, than they who had introduced it into 
ijie church." P. 3P7. 



INTRODUCTION. S89 

The former succeeded in their hopes * ; the latter 
in vain, by the loudest and frequently-reiterated 
complaints of sacrilege, tried to rouse in favour of 
the church, the, in this respect, languid religious 
feelings of men of influence an4 property t. 

The first book of discipline, containing the 
principles of the reformed religion, was subscrib- 
ed by many of the nobility and barons ; but on the 
express condition, that the bishops, abbots, priors, 
and other prelates, should continue to enjoy their 
livings. The consequences might easily have been 
anticipated. The Popish Church had devised 
many checks to prevent dilapidations of her pro-* 
perty by beneficed men : But these operated no 
longer ; and the prelates naturally embraced the 
opportunity of enriching their relations by feus 

* Were we to quote authorities for this, our pages would be crowd- 
ed, and we shall have occasion to quote authorities in support of the 
statement afterwards* But to shew how early avarice had been suc- 
cessful, we may observe, that in 1560 the clergy petitioned the Parlia- 
ment on sundry points — one of which was, ^' That the Pope of Rome's 
usurped authority should be discharged, and the patrimony of the 
church employed for the sustentation of the ministry, the provision of 
schools, and entertainment of the poor, of a long time neglected. 
This last clause was not very pleasing to divers of the nobility, who, 
though they liked very well to have the Pope's authority and doctrine 
condemned, had no will to quit the church's patrimony, wherewith, 
in that stirring time, they had possessed themselves." Spottiswoode, 
p. 150. See p. 160, 164, 175, and so forth. Calderwood is equally 
explicit on this head. 

t Spottiswoode, p. 164, 209. See quotations above, from p.297— 
298, 301 and 2, 385, 6. Every assembly was employed about the 
preservation of the patrimony. Knox maintained that tythes wei:e of 
divine institution. Spottiswoode, p. 86. Calderwood's History is full 
©f regulations and complaints about the patrimony. 



390 IKTRODUCTIOK. 

and tacks or l€ases, equally of lands and tithes, at 
nominal or quit-rents. It is probable, too, that 
many might forsake the celibacy to which they 
had been bound, and use the advantage of their 
situation to provide for their families. It appears 
likewise, that many grants were made by beneficed 
men to the very individuals who subscribed the 
book of discipline, in order to purchase security 
by their protection to the remainder of the liv- 
ings *. When Mary ascended the throne, as the 

* l^t. p. 1 75. In 1 $€0, tli£ Book (^ Discipline was subscribed by a 
greftt part of the nobility and barons^ under tbe condition of the bishops^ 
abbots^ priors, and other prelates, being permitted to enjoy their livings. 
Calder. p. 30. As for their motives, see Introduction to Calderwood by 
the l^Ux, who tells us that James's design of restoring episcopacy wa9 
seconded " by some nobles and great men of the kingdom, who were 
greedily gaping and grasping at the revenues of the church, which 
they could not so easily come by, unless there were some particular, 
and, as they were then called, Tulchan Bishops kept in the chnreh, 
who being, to some satisfaction of their lustful avuice and pride, gra- 
tified with the title, and a little additicm to their former mainte- 
nance, m%ht the more easily let down the milk, and make a sure 
isonveyance of the far greater part of the benefices to the sucking 
Lords." But before the great dilapidation of the diurdi's patrimony, 
this principle operated far more strongly. Mr. P. Adamson, who 
was disappointed in not getting the bishopric of St. Andrew's, in Im 
sermon divided bishc^s into three sorts, ^' My Lord Bii^op, my Lonf a 
Bishop, and the Lord's Bidiops. My Lord Bishop was in tiBie aS 
papistry, my Lord's Bishop is now, when my L(^dgetCeth*the fat of 
ihe benefice, and the Bishop serveth for a portion out of the betiefice> 
to make my Lord's right sure. The Lord's Bisfa(^ is the true mem- 
ber of the Gospel." Calderwood, p. 65. Seep. 47, ^1, 56, 67, 64, 104, 
1S5— 6, 142. One of the severest charges against the bishc^ in 1^3 
was, that some of them were sacrilegious dilapidators of their whole 
benefices, p. 157^—509. We learn from 319, that there was sacri* 
lege in all estates, without making any conscience, p. 321— ^> 328. 
Spottiswoode, p. 164, 175, 183, 209— JO, 298, 301—2, 311, 327, 
387. 4 



INTRODITCTIONT. S91 

church livings could not be conferred upon Pop- 
ish clergy, she bestowed them on the laick minion« 
of the court. ** The patrimony of the kirk," says 
Knox, '< bischopricks, abbyes, and such other bene- 
fices, were disposed by the Queue to courtiers, 
dancers, and flatterars. The Erie of Bothwell, 
quhorn the Queue preferred above all uthers, efter 
the decease of David Rizio, had, for his part, 
Melrose, Hadington, andNewBottel*/' As such 
individuals could have no interest in maintaining 
the property of the church, and were shackled by 
impotent restraints, they naturally improved their 
time by securing as much of it as possible. With 
regard to monasteries, they were destroyed, and 
the abbots and priors became temporal lords, vot- 
ing in the name of the church. Under the sub- 
sequent regencies, it was resolved to preserve the 
estate of bishops during the King's minority, be- 
cause it afforded a source of influence and even 
of revenue to the Regent, by whom the most si- 
moniacal pactions for livings were made t. After 

* Knox's History of the Reformatioii^ p. 396. This would appear 
to have been an eurly practice— long before the BeformatioQ. Spot- 
tiawoode, p. 60* 

t C9i}derwood^ p. 48> 5$, 64* Morton^ BageuXj attempted to win 
Andrew Melville to Spiscopacy-^in order to effectual a confomut^ 
wiljli England^ as he dei^aured to govern according to lus wijth with- 
out it. " If he found ministers apt^ he purposed po advance them 
to bishoprics." P. 66. As to the abbots^ firiars^ &c. turmng 
temporal lords, see Spottiswoode^ p. 365. Calderwood, |>. 103.— 
The monasteries were disgracefully plundered. Cald/erwood iff 
anxious to establish that it was only the " rascal n^ultitude" that 
committed the robbery ; but who set them on ? He bets preserved a 
letter which was penned and divuljged a little b^to^ in the name ^ 
the lame, the blind, &c. somewhat like the petition of the b^gars to> 



392 INTRODUCTION. 

the majority of James, the annexation by Parlia- 
ment of church lands to the Crown, under the pre- 
text of increasing its revenue, and the afler-trans- 
ference of part of it to favourites, together with 
the confirmation of the previous grants, whether 
of land or tithes, to the possessors, for ever be- 
reaved the church of the best part of her patri- 
mony*., To the alienations of tithes^ the practice, 
under the Romish religion, pursued by patrons, of 
annexing or impropriating churches, with their 
tithes, to particular bishoprics, abbeys, &c. by 
which a vicai* was supplied, had greatly contri« 
butedt. It being as impossible for a bishop or 
abbot to draw the tithes of several parishes as to 
farm the territory, leases of them became abso- 
lutely necessary : But, under the old system, the 
consent of the chapter was requisite for the bishop, 
that of the abbey for the abbot, and these checks 
were strengthened by the corrective power of his 
Holiness, who had too deep an interest in the ge- 
neral welfare of the church to permit alienations 
of her property t. The Reformation removed 

Henry VIII.— Som. Tracts, Scott's Ed. Vol. 1. 103, 104, which was evi- 
dently calculated to stir up the people. Calder. MS. Vol. II. p. 497. 
See an account of the destruction in p. 516. Knox himself is said to 
have ohserved, (Spot. p. 170.) that the sure way to destroy the rooks 
was to pidl down their nests, and the observation was sound. But 
the plunder of the monasteries, though so much censured, was die 
most excusable of all the plunders then committed. 

* See Spottiswoode, p. 365, 385-^7. 

t See Blackstone's Commentaries. There had apparently been a 
vast number of annexations in Scotland. 

} In s work, entitled ^' The assurance of abbey and other church 
lands in England to the possessors, cleared from the doubts and aiw 



INTRODUCTION. 39S 

these shackleSi and the Protestant clergy daily saw 
their prospects vanish. But hope remained : They 
loudly demanded restitution, and a repeal of the 
act of annexation ; declaring with perfect truth, 
that unjust possession was no possession before 
God ; and labouring to impress a conviction of the 
horrid sacrilege which had been committed. Nor 
did they neglect any means within their power 
calculated either to stop the farther progress of 
the evil, or to regain their lost rights : And they 
made a special proviso in favour of those whose 
charity and piety should lead them to bestow 
gifts upon the church *. This conduct was per- 
fectly natural and, therefore, pardonable ; but 
it ought to moderate the tone of that class of 



goments about the danger of resumption^ &c" it is maintained^ that 
by the canons of the church it was not necessary : but it is clear even 
from that production^ that the Pope was in the practice of interfering^ 
and that there were canons against alienations^ p. 17 and 18. In 
1678^ the church represented^ that seeing they '^ who were of old 
called the chapters, and convents of abbeys^ cathedral churches^ and 
the like places^ serve for nothing now but to set feus and leases of 
landsj (if any be left,) and tythes, to the hurt and prejudice thereof, 
as daily experience teacheth, — ^the same should be abolished." Spot- 
tiswoode, p. 2981 

* The Assembly enacted^ that all ministers who dilapidated their 
benefices should be excommunicated. Calderwood, p. 91. In the pas- 
sages .already referred to, the fullest confirmation of our text will be 
foimd. The church represented strongly, that her patrimony should 
be restored; and, say the clergy, ^' If any shall think this prejudicial 
to those that possess the tythes by virtue of leases, we would have 
them consider, that unjust possession is no possession before God - 
and that those of whom they acquired the right were thieves and 
murderers, and had no power to alienate the patrimony and common 
good of the church." Spottiswoode, p« 164, 165. See also other pas-* 
ttges already referred to. 



394 INTRODUCTION. 

people, who impute such extraordinary disinter- 
estedness to the primitive Scotch reformers, from 
the smallness of their stipends, and such profligacy 
to the Romish clergy from the extent of their pos^ 
sessions. If the livings of the Protestant clergy 
were small, they struggled to make them very 
large. If one church had been ambitious in ac- 
quiring, the other was no less so in its desire of 
retaining, and even of adding to, that immense 
property. But it may fairly be questioned whe- 
ther, considering the state of the country at 
that time, the stipends of the Protestant clergy, 
small as they were, ought not to be deemed aa 
adequate compensation to candidates for church 
preferment. The sums allotted to the majority o£ 
pastors appear insignificant now, but, as the scar- 
city of money was then extreme, the habits of life 
totally different from what we are accustomed to, 
the openings for active talent without capital ia 
other departments, so very limited, that the most 
aspiring genius saw itself doomed to poverty and 
neglect, an income, trifling in our time, conferred 
comparative riches. If, with this, we consider the 
respect then paid to the clergy, and the power 
which belonged to their body, we may affirm that, 
as they were, generally, not of high origin, they 
derived an infinit^ely more exalted station in so- 
ciety by the church than they could possibly have 
reached by any other profession. 

The Presbyterian church is founded upon pari- 
ty in the pastors ; yet, at first, tfee paucity of fit 
ministers of religion rendered it necessary to admit 



INTRODUCTION. 895 

some superiors under the name of superintendants, 
for the purpose of visiting, planting, and reforming 
kirks, which afforded afterwards an argument to 
the court party, that episcc^acy was by this means 
preserved in substance, and parity amongst mi- 
uisters, of consequence, not originally intended. 
Though, however, some features in the office of 
superintendant bore a striking analogy to that of 
bishop*, there seems to have been an essential 
difference in the constitution of the offices. But, it 
is well remarked by Calderwood, that " in process 
of time, the like inconveniences would have fol- 
lowed upon the office of superintendants, as was 
like to follow upon the office of bishops t.** Hence 
it is probable, that to the ambition and dextrous 
talent of a few individuals, may be traced an ana- 
logy between the offices, which, speciously veiled 
at the time, would, at a future period, have had a 
mighty influence on the establishment. 

The government of the church by presbyteries, 
synods, and assemblies, was finally established by 
the legislature in the year 1592$; and though vacant 
bishoprics continued to be supplied, the incum- 
bents were not permitted to claim superiority over 

* See Spottiswoode^ p. 159, particularly p. 258. 

+ See Calderwood, as to the office, p. 26-7, 32. See p. 45, re- 
garding commissioners for visiting kirks, which throws light upon 
this sulgect. New ones were to be chosen by every assembly. See 
M^Crie's Life of Knox, VoL I. p. 386, et seq. VoL II. p.^283, et seq. 
The words quoted in the text in p. 69. 

X 12th Parliament of Ja. VI. c. i. Calderwood, p. 268. But there 
were all kinds of assemblies from almost the commencement of the 
Reformation. Calderwood, p. 29, 32, 87, 43, &c. 



S96 INTRODUCTION. 

other pastors *. Even this, however, gave offence 
to the rest of the clergy who laboured for its abo- 
lishment, and James himself afiected to be a zeal- 
ous Presbyterian. In 1590, addressing the Gene- 
ral Assembly, " he praized God that he was born 
in such a time, as in a time of the light of the 
Gospel J to such a place as to be king of such a 
kirk—- the sincerest kirk in the world : the kirk of 
Geneva keepeth Pasch and Yule, what have they 
for them ? They have no institution. As for our 
neighbour kirk in England, their service is an evil 
said masse in English, they want nothing of the 

* Calderwood, p. 56, tells us, that the first bishop after the Refor- 
mation was Douglas, nominated by the Regent Morton to the See of 
St. Andrew's, for that the old bishops were not permitted to exercise 
their functions. '^ It was easy," says he, ^^ to obtain the consent of 
many ministers to this sort of episcopacy, some being poor^ some 
being covetous and ambitious, some not taking up the gross corrup- 
tion of the dffice, some haying a carnal respect to some noblemen 
their friends." lb. But he derived small profit from his bishop« 
ric, '^ Morton and his friends took up great part of his rent in tacks, 
feus, and pensions." The minister was likewise of a feeble frame, 
*^ and not much abler in his tongue, yet little respect had the court 
to the abilities of his person, so that commodity could be reapt by 
virtue of his title," p. 57. The author represents Knox as hostile to 
the measure, and it would appear, that he was so, yet Spottiswoode 
imputes the doctrine of parity in the church to Andrew Melville, p. 
975. In 1586 it was agreed upon that the election of bishops should 
be by presentation, directed to the General Assembly. Calderwood, p. 
197. The General Assembly agree this year, that it is lawful to ad- 
mit ai pastor, minister, or bishop, having a benefice, who has been pre- 
sented by the king to the same. Calderwood, p. 207. See Spottis- 
woode, p. 275-6. In 1580, the General Assembly, held at Dundee, 
'^ conclude, that the office of a bishop, as then used, had neither 
foundation nor warrant in the word of God, and that all called. Or 
who should be called to that office, should demit till re-admitted into 
the church by the Assembly." Spottiswoode, p. 311, 468. Calderwood, 
to the same efiect, p. 66, 85, 90-1. 



IKTRODUCTIONi S97 

masse but the liftings, I charge you, my good 
people, ministers, doctors, elders, nobles, gentle- 
men, and barons, to stand to your purity, and to 
exhort the people to do the same, and I, forsooth, 
so long as I brook my life and crown, shall main- 
tain the same against all deadly *." Yet, such was 
the insincerity of this monarch, there is reason to 
believe that he had even then determined on the 
subverting of this purest of all institutions, which 
he charged the people, and so solemnly pledged 
himself to maintain. For, in his work, entitled, 
** Basilicon Doron," printed and clandestinely cir- 
culated a few years afterwards, and which must 
have cost time in the composition, he contends, 
that " parity amongst ministers cannot agree with 
monarchy, that without bishops the three estates 
cannot be established j that ministers sought to 
establish a democracy in the land, and to bear the 
sway of all the government ; that by time they hope, 
by the example of the ecclesiastical policy, to 
draw the civil to the same parity. That no man 
is to be more hated of a king than a proud puri- 
tan ; and that the chief of them are not to be al- 
lowed to brook the land f .'* 

His opinion of the ambitious views of the cler- 
gy was not destitute of truth. Popular govern- 
ment and extraordinary times call forth talent, 

* Calderwood, p. 256. 

Calderwood^ p. 357^ assures us the king had early formed the re- 
solution of restoring episcopacy. 

t I have quoted this frcnn C&lderwood^ in order that the reader 
may be satisfied of the views of parties^ p. 428. Seven copies only* 
of the Bas. Dor. were printed on the first edition. M^Crie's Life of 
Melville. Vol. II. Note I. 



S98 IMTRODUCTION. 

nnd, notwithstanding the ridicule which some ia« 
genious authors have attempted to throw upon the 
Scotch clergy of this period, there are many tra* 
ces of profound ability and extensive learning *«. 
But, like all bodies of men, their ambition was 
fully commensurate ; and their influence with the 
people promised success to their schemes* Their 
language and proceedings plainly indicated a claim 
to papal power, as well as infallibility, by means o€ 
their assembliest; they arrogated the right of discus- 

* WIwererwiQ take the troabie to read tbeditirehUcBtori^ 
time must be satisfied of this. 

t In the second declinature of Black, of the kii^ and ooundl, at 
least primd instantid, it is said, that God has given the keys of the 
kingdom of heaven to the churchy and that the clergy wereemponrer-^ 
ed ^^ to admonish, rebuke, convince^ exhort, and threatea, to deliver 
unto Satan, to lock out and debar from the kingdom of heaven/' 
Calderwood, p.S47. In February 1597, certain questions were proposed 
by the king at the Convention <tf Estates and General Assembly, heM 
at Perth, from which we shall select a few, with the answers <^ the 
clergy. — Q. Who should establish acts for the external government of 
the kirk ? — ^A. The pastors and doctors, according to the word of Grod, 
and ^ kings and princes ought, by their authority, to ratify and ap^ 
prove that by their laws, and mndtGote by their civil sanction, whieb 
they declare to be God's will out of his word." They had former- 
ly contended that the riglit of electing pastors should be vested in 
the congr^ation ; but to a question as to where it should reside, they 
now reply, that " election of pastors should be made hy pastors and 
doctors lawfully called, and who can try the gifts ; and to such a& 
are so chosen, the flock and patron should give their consent." Cal- 
derwood, p. 383* To the query, another answer, by a different per- 
son of the Committee appointed for the purpose by the Assembly^ 
was given, and which die author calls judicious, ** The presentation 
of the patron is merely a human institution, and importetk no neoe&« 
sity of consent, but the consent of the flock is necessary/' P. %90*. 
To a query regarding the election of the Sesnmi, it was answered> 
That ^^ the ministers direct and moderate ^e eleetion by the wardt 



I NTR0DUCTI017. 899 

sing state af&irs in the pulpit, and of arraigning all 
men, from the cottage to the throne, upon evenbruitB 

andthecongregatiotioi^e^Aani^ve^ccmfen^.'' P. dd4. Th&y like- 
wise assert> that the Assemhly may be convened by the office-beaiirs 
of idrk, because they derit>e their right from Oodanly. P. 385. — Q. 29. 
** May any thing be acted in the Assembly to which his Majesty con- 
senteth not ?•*— A. " The king shmtid consent to, and by taivs approve 
cU that hy the word cf Ood is concluded in the AssemhUes; and the 
acts thereof have sufficient authority from Christy who has pf omised^ 
ihat whatsoerer two or three convened in his name^ s^all agree np- 
on^ on earthy shall be ratified in the heavens ; the like whereof no 
king nor prince hath^ and so the acts and constitutions of the kirk 
are of greater authority than any king earthly can give; yea, even 
such as ^ouM command and overrule kings, whose greatest honour 
is to be members, nursing £si1hers and servants to this king, Christ 
Jesus, and his house and qUeeli, the kirk." P. 386. 3. Mel- 
tiHe's Memoirs, MS. P. 293, et seq. Did ever papal arrogance 
exceed this? Yet, when « question w&s put, whether the voice 
of the majority shotdd be decisive of a question, the clergy, w)io 
apprehended that a majority might be gained over by the court, 
evaded the question, and charged the king with a wish to sow dissen- 
tion. The following passage, h(nti Calderwood, will afibrd a JuSter 
picture of the temper and aitti of parties than any representation of 
ours. At a conference between the king and some ministers in 1596, 
" Mr. James Melville, their mouth, shewed that die ■Commissioners 
appointed by the General Assembly to watch in so dangerous a time, 
had convened with certain of the brethren at Cupar. The king in- 
tertapted him, and challenged the meeting as seditious, and without 
wjarrant, and Baid, they made themselves and their country conceive 
fear, when there was none. Mr. James b^an to reply, after his mild 
tHanner, but Mr. Andrew taketh the speech from him, and, how- 
bdt the king was in anger, yet he uttered their commission as from 
the mighty God. Called the king God^s silly vassal, and taking him 
by the sleeve, said this in effect : Sir, we will humbly reverence your 
majesty always, namely, in public, but we have this occasion to be with 
your majesty in private, and you are brought in extreme danger, both 
of your life and of ydur crown, and with you the country and kirk 
of God is like to be wracked for not telling you truth, and giving 
you a faithful counsel. We must discharge our duty, or else he ene- 
mies to Christ and you. Therefore, Sir, as diverse times before, so 
now I must tell you, that there are two kings and two kingdoms. 



400 INTRODUCTION, 

or rumours, and uncertain informations * ; and the 
jurisdiction claimed for the church was separated 

There is ClirUt and his kingdom, the kirk, whxm subject King James 
VI. is, and of whose kingdom he is not a king, nor a head^ nor a lord, 
but a member; and they whom Christ hath caUed, cend commanded to 
watch over his kirk, and govern his spiritual kingdom, havesvffidentaw* 
ihority and power from him to do so, which no Christian king shotUd con^ 
trol nor discharge, but fortify and assist, otherwise they are not faithful 
subjects to Christf Sir^ when you were in swaddling clouts^ Christ 
reigned freely in this land in spite of all his enemies. His officers and 
ministers convened and assembled for ruling of his kirk^ which was ever 
for your welfare also> when the same enemies wereseeking your destruc- 
tion; and have been> by their assemblies and meetings since^ terrible to 
theseenemies^andmoststeed^ble to you: Will yenow^ when thereis minre 
than necessity, challenge Christ's servants, your best and most faithful 
subjects, for their convening, and for the care they have of their duty 
to Christ and you, whenas you should rather commend and coun- 
tenance them as the godly kings and emperors did ? The wisdom of 
your coundl, ivhiph is devilish and pernicious, is this^ that you may 
be, served with all sort of men to come to your purpose and grandeur 
^-Jew, and Grentile, Papist, and Protestant. Because the ministers 
and Protestants in Scotland are too strong, and control the king, 
they must be weakened and brought low by stirring up a party 
against them, and the king being equal and indifferent, both shall be 
fain to flee to him : so shall he be well settled. But, Sir, let God's 
wisdom be the only true wisdom; this will prove mere and mad folly," 
&c. P. 329, 30. I have taken this from Calderwood, instead of 
transcribing from James Melville's Memoirs in MS. in the 4dvocates' 
Library, from which Calderwood himself transcribed it. But I have 
compared the two, and have found that they agree in every thing 
material. See MS. p. 140, 276, et seq. Calderwood was one of the keen-< 
est on the same side with the Melvilles and their great admirer. 
He approves highly of Andrew Melville's conduct on the above occa- 
sion. By the way, one cannot help being amused with these aflect- 
edly moderate men's fondness for title. While they designate the 
greatest landed proprietors by their Christian names, John, Andrew,^ 
&c» they never, on any occasion whatever, omit the word Mr. befor^ 
the name of one of the brethren. 

* We learn from Spottiswoode, p^ 343, that in 1586 one of the der- 
gy, Gibson, called the king a persecutor, and denounced the curse 



iNTRODUCfTlONf 401 

by Do definite line from that of other courts ; but 
under the pretext of censuring immorality, em- 
braced almost every offence against morals or so- 
ciety *. ^ Nor could even unjust ecclesiastical cen- 

4iat fell on JeroboAm^ that he should die childless^ and be the last of 
his race. The chancellor advised^ (p. 347.) the king to allow the 
ministry io go on^ for that they would soon become so intolerable 
that the people would drive them out of the country. Th« king re- 
plied^ that if he wished the " ruin of religion^ he would adopt that 
plan ; but he wished it well." Yet James appears not to have been 
burthened with religion at any time^ for besides being " bloated with 
banning and swearing, the dergy agreed that he should be admo* 
nished to forbear hearing of speeches in time of sermon of them that 
desire to commune with his majesty." Calderwood, p. 317^ 318. 
See Calderwood, p. 383^ 384, concerning the right of the church to 
mention men's names in the pulpit, even on bruits and rumours. 
See Spottiswoode, p. 429, et seq, abput the discussion of politics in the 
pulpit. See J. Melville's Mem. or Diary^ MS. p. 295. 

^ Calderwood, p. 388, as to the offences, &c. See p. 336^ 340, 
347 to 349. Spotts. p. 419. 

The clergy strenuously tried to exempt their order from civil jurist 
diction for things uttered from the pulpit on civil affairs and charac-^ 
ters ; but, as this was afterwards pointedly denied, we shall prove it. 
Mr. D. Black was charged with having said from the pulpit that the 
popish lords had returned from banishment with the King's know-* 
ledge, and upon his assurance, and that he, the King, had thereby 
'* detected the treachery of his "heart." ► 2dly, With having called 
*^ all kings the divelVs bairns', (children,)" adding, ^^ that the divell was 
in the cilirt, and in the guiders of it." 3dly, With having used these 
-words in his prayer for the Queen, ^' We must pray for her for the 
fashion, but we have no cause, she will never do us good ;" (by the 
way, was this the ^fncerity which a pastor ought to maintain in 
addressing the Deity ? The fashion !) 4thly, With having called the 
Queen of England an atheist ; 5thly, With having discussed a sus-« 
pension granted by the Lords of Session, and called them miscreants 
and bribers ; (from the corrupt state of justice in Scotland at that 
time, of which there is ample proof, the terms were not misapplied.) 
6thly, With having called the nobility degenerate. Godless, dissem-* 
biers, and enemies to the chuTch-'-«nd the council, *' Helliglasses, 
cormorants, and men of no religion." &c. Sppttiswoode^ p. 423-4. 

VOL. I. 2d 



402 INTRODUCTION. 

sures be then as now despiseid. Excommunica- 
tion by statute inferred civil rebellion by outlaw* 



Tlie English amtmssadors complained^ p. 419. Mr. filack tiras eum- 
moned before the King and council ; and here we may observe that 
the present case is altogether independent of any question about the 
powers of the council as a court of judicature^ for Black's ground of de« 
clinature was its being a dvil jurisdiction. The clergy^ with Andrew 
Melville at their head^ took the matter up as one of vital importance 
to the churchy as tending to bring the doctrine of all ministers under 
the censure and controlment of his Msgesty and council : and it was 
resolved that he should decline the judicature^ ^' and that all the bre* 
thren be exhorted to seek out all the warrants of Scripture^ or positive 
laws to prove that the judgment of the doctrine whatsoever pertaineth 
to the pastors of the kirk^ in primd instantid." P. 335. Others had 
declined civil jurisdiction before, but Black was advised to give in his 
declinature with his reasons in writing, that it mig^t serve as a preoe^ 
dent against similar attempts by the court, p. 336. This was aeoord-* 
ingly done, and Black, after stating generally, that, in all dvil mat-* 
ters he subjected himself to the civil polvers, says, " Yet seeing I am 
at this time brought to stand before his Majesty and councQ, as a 
Judge set to cognosce and decern," (try and decree, or adjudge,) '^ up- 
on my doctrine, wh^^through my answering to the said pretended 
accusation might import, with the manifest prejudice of the liberties 
of the kirk, an acknowledgment of your Migesty's jurisdiction in mat* 
iers that are mere spiritual which might move your Mi^esty to attempt 
farther in the spiritual government of the house of God, to the provo-« 
cation of his hot displeasure against your Mjigesty, and, in the end« 
either a plain subverting of the spiritual judicature, or at least a con<* 
founding thereof with the civil, if, at any time, profane and anbitious 
magistrates might, by such dangerous beginnings, find the hedge bro^* 
ken down to make a violent irruption upon the Lord's inheritance, 
which the Lord forbid. Therefore, I am constrained, in all humility 
and submission of mind, to use a declinature of this judgment, at least 
in primd instantid," 

" The Lord Jesus, the God of order, and not of confusion, as ap-» 
peareth evidently in all the kirks of the saints of whom only I have the 
grace of my calling, as his Ambassador, albeit most unworthy of that 
honour to bear his name among the saints, hath given me his word^ 
and no law or tradition of man, as the only instructions whereby I 
should rule the whole actions of my calling in preaching of the word^' 



>» 



IKTRODUCTIOKV 403 

ry; and with such keenness was tjbe right of in^ 
dieting this punishment maintained^ that the as< 

fitc : ^^ andj in the discharge of this commissions 1 cannot fall in reye« 
irence of any civil law of men^ hut in so far as I shall he found to have 
Jtassed the compass of my instructions^ which cannot Vbe judged> ac« 
cording to the order established by that Grod of order> but by the pro-* 
phets whose lips he hath appointed to be keepers of his heavenly wis* 
dom> and to whom he hath subjected the spirits of the prophets* 
And now seeing it is the preaching of the word whereupon I am ac- 
cused^ which is a principal point of my callings of necessity the pro* 
phets must first declare whether I have keeped the bounds of my di-* 
rections before I come to be judged of your Majesty's laws for my of-« 
fence." He concludes^ therefore^ that his case must first be tried by 
the Ecclesiastical Court. Calderwood^ p. 337, et seq* To what this 
must have led is evident : yet it has been alleged that the declinature 
was only in the first instance, and that the civil jurisdiction re- 
mained entire. But I would ask any man to say whether the 
obvious meaning is not, that if he had been declared '' by the 
prophets" not to have transgressed, the civil jurisdiction could not 
have interposed? and granting the reverse, to what would this 
have tended ? Surely to a far greater confu^on than the direct course 
of leaving civil matters to civil courts.-^-^^lould a court, pretending to 
divine power, yield to 'a human ? But the sequel puts the matter be- 
yond all doubt. James would have given up the case if th.e clergy 
would have departed from their declinature ; instead of accepting the 
terms however, they gave an explanation, that they did not mean to 
exempt from civil jurisdiction any matter or cause civil and criminal, 
committed by whatsoever persons, and justly pertaining thereto, " not 
contrary to the word of God, but only in matters and causes spiritu-^ 
al, of persons bearing a spiritual function in the kirk, and spiritual 
kingdom of Jesus Christ, in discharging the points of their office ahd^ 
duty spiritual ; as, namely, preaching of the word, &c. the laws and 
instructions whereof as they have received from Christ, only set down 
in the word, and from no king nor civil magistrate earthly, so ought 
they to be censured and judged by the same word allenarly, (only,) 
and such as have their lawful calling in the interpretation and open-* 
ing up of the same." P. 340-1. As the case could not be quashed. 
Black gave in a second declinature, adhering to his farmer, and stat'* 
ing farther, that there are two jurisdictions, one civil, the o^er spirit 
tual, appointed by Go4# ctd which could not be altered by man: 



404 iNTRODUcnoir. 

sembly declared that the king had as little poAvef 
to relax a notofiously unjust sentence as to pro* 

That God had effectually called his office-bearers and ministers to 
whom he has concredited the preaching of the evangelists, i Car. ix. 
*' Whom he^as placed in their spiritual ministry over kings and 
kingdoms, to plant, to pluck up by the roots, to edify and demolish. 
Jer. i. to cast down strongholds, and whatsoever lifteth itself up 
against the knowledge of God, 2 Cor. x. Uuto these he has given spi* 
ritual armour for that effect, and to take revenge of all stubborn dis-r 
obedients, ib. Whom he has commanded not only to preach the word, 
and to be constant in season and out of season. 2 Tim, iv. but alsa 
to cut the word aright, giving the dutiful part and portion thereof ta 
every degree and sort of men. Mat. xxiv. 2 Tim. ii. to admonish, 
rebuke, convince, exhort, and threaten. 2 Tim. iv. To deliver unto 
Satan. 1 Cor. v. 1 Tim. i. To bind the impenitent in their sins, to lock 
out and debar from the kingdom of heaven. Mat. x. John xx. To whom 
he has given the keys of the kingdom of heaven. Mat. xvi. and power to 
assemble themselves^ to this effect. Mat. xviii^ Acts xv. I Cor. xiv. pro- 
mising his presence and assistance. Mat. xxviii. And, to be short, the- 
spiritual administration, as he has put it in ^heir hands, making them 
judges to try and cognosce in spiritual matters. 1 Cor. xiv. even so he 
chargeth them with vehement attestations by the great God, and glo- 
rious coming of the Prince of Pastors. 1 Pet. v. to do these things 
without respect of persons, with all attention. 1 Tim. v. vi. 1 Pet. v. 
Tit. ii.'* 

'' And therefore, in so far as I am one, howbeit most unworthy, 
of the spiritual office-bearers, and have discharged my spiritual call- 
ing, in some measure of grace and sincerity, should not, nor cannot, be 
lawfully judged, in spiritual matters, for preaching and applying of 
the word of God, by any civil power, authority, or judge, I being 
an ambassador and messenger of tlte Lord Jesus, Malach. ii. hav'* 
ing my message and commission from the King of kings, as said w, 
and all my instructions set dovm and limited in the book of God, that 
cannot ,be extended, abridged, or altered by any mortal wight. King 
or Emperor. 2 Tim. iii. Deut. iv. Prov. xxx. Mev. xxii. And see-i 
ing I am sent to all sorts of men, to lay open their hid sins, to preach 
the lawand repentance, the Evangel, and forgiveness of sins, and to be & 
savour of life unto life to those that are appointed for life, and a sa-« 
TOur of death unto 4eath to those that are appointed for death. 2 Cor. 
U* my commission, the discharge and forai of delivery thereofj|^*A(m/<l 



INTftODUCTIOK. 405 

nounce it *. Such lofty pretensions were as irre- 
concileable with good government as with the jtis 
divinum of kings ; but^ as at that time, justice was 
** lame as well as blind" in Scotland ; and the bulk 
of the people laboured under the most galling op- 
pression, a system founded upon popularity pro- 
mised them relief. Yet it is not wonderful that 



iioty nor cannot, he lawfully jvdged by them to whom I am sent, they 
being as both judge and, party, sheep and not pastors : to be judged 
by this word, and not to be judges thereof" P. 347-8. Did ever any 
things in any age or nation^ surpass this ? With regard to their texts^ 
I cannot help remarking that Shakspeare must have had a less am- 
Idtious set of men in his eye when he so happily said, 

*^. In religion. 
What damned error, hut some soher hrow 
Will hless it and approve it with a text." 

The excellence of the passage will form my excuse for quoting any 
thing so hackneyed. James, too, could quote texts for his worst 
usurpations. 

*i Calderwood, p. 369. In how many forms have the pretensions 
of the church, and it is'hy no means singular, exhihited themselves. 
See Telemaque, Liv. xxiii. To a question of Idomeneus ahout reli- 
gion. " Pourquoi, lui repondit Mentor, vous tneleriez-vous des choseg 
sacrees ? Laissez-en la decision aux Etruriens, qui ont la tradition 
des plus anciens oracles, et qui sont inspires pour etre les interpretes 
des Dieux," &c. The sentiments are much the same as those of the 
Scotch clergy. 

In Barrow's Sermons ^^ of Obedience to our Spiritual Guides," we 
meet with similar pretensions. It is true that they sure qualified in 
the last sermon; hut the qualification is clearly meant to meet objec- 
tions founded upon the assumed infallibity of the Romish Church. 
Admit his principles, in the first place, and the qualification is an 
insult to the understanding. The inimitable Fielding makes Booth 
observe, that an angel might be said to '.ave guided Barrow's pen in 
certain of his sermons ; but, perhaps, the reader may be of opini<ui, 
that it wfts a fallen one, in the case pf those ref«rx«d to. 



4t06 UTTAODUCTIONt 

the power of the church clashing xvith that of the 
throne, should have kindled a desire in the mon* 
arch to repress it ; ai)d had James and his succra- 
sors endeavoured merely to confine it within li« 
mits compatible with the constitutional form of the 
civil government; or, in other words, had they 
bereft it of all legislative and judical authority, and 
made it as now, virtually erastian, of subordinate 
to the civil power, they would have merited praise 
rather than censure. From their violent and cor* 
rupt measures to overturn the Presbyterian establish- 
ment altogether, and impose episcopacy and cere- 
monies abhorrent to the people, and more p^miciou$ 
to good ciyil polity, they and their advisers must 
be considered amenable for all the direfiil effects of 
such impolitic and tyrannical proceedings,-^It may 
appear inconceivable how the aristocracy should 
have beheld with indifference the encroachmentsi 
of the church ; but it ought to be remembered 
that their own security to her patripiony, of which 
she had been plundered, rested strongly upon the 
continuance of the system ; and that they were 
likewise, in some measure, overborne by the po-? 
pular torrent. Had the clergy been installed 
in the old livings, they would have had a po. 
tent opposition to encounter ; and it is probable 
that the popular favour would have been lost by 
the habits which Jarge incomes generally produce. 
Indeed, the Pr^esbyterian system cqutained a prin-, 
cipie of self-correction, which, had matters been 
left to their natural course, would, in no long 



INTEODUCTIQKt 40? 

tune, have abridged th^ clerical authority. The 
religion so zealously introduced by the Stuarts 
was calculated to subdue the temper, by its hold 
over the imagination : But the other, destitute of 
all superstitious observances, and depending on po- 
pularity, appealed to the judgment and the heart, 
while the institution of lay elderships taught the 
people at large to e;sercise their own understand- 
ings on spiritual points. They were chiefly solici- 
tous for purity of doctrine, and as they only sup- 
ported the clergy in their pretensions for the at- 
tainment of that object, they would soon have 
judged the harassing interference of the eccjesias-* 
ticdl body with their domestic aflTairs, and their 
rigorous proceedings, by the principles promulgate 
ed from the pulpit, and applied to the throne for 
protection against such evils. It was from this 
view, doubtless, that James was advised to permit 
the clergy to proceed in their own way, as ihey 
would soon become so intolerable, that the people 
would drive them out of the country; and the' 
history of the Scottish Church, and character of 
the rigid Presbyterians, prove its correctness. 

With intentions corresponding to the political 
sentiments expressed in the Basilicon Doron, did 
James, while he was professing the sincerest at- 
tachment to its present form, proceed to new- 
model the church, expecting to undermine it by 
ft gradual and insidious process. The clergy had 
frequently complained that the ecclesiastical estate 
was either not represented at all, or represented 
by laicks, and other unqualified persons who had 



408 INTRODUCTION. 

no authority to vote in its behalf; and a plan 
seems to have been entertained of sending depu- 
ties to parliament, appointed by the General As- 
sembly *. But the most sharp-sighted and purest 
of the ministry who foresaw the consequences of 
elevating their brethren to that station, proposed 
that the deputies should be laymen, and annually 
chosen t. This did not quadrate with the king's 
views ; and, therefore, by dextrous manoeuvring, 
and gross corruption t, he obtained the consent of 
an assembly to the following plan : That six mini- 
sters should be nominated by the assembly for 
every vacant bishopric, out of which number the . 
king should either appoint one, or, if the whole 
were disagreeable to him, immediately call for a 
fresh nomination, from whom ohe should be 
imperatively chosen. But they were to submit 
their public conduct to the judgment of every 
assembly, in which they could have no voice un- 
less elected by the presbytery. They might like- 
wise be deposed by the king and assembly §. 

It has been argued that the opposition this mea- 
sure encountered, arose entirely from an extraordi- 
nary self-denial, and rigid attachment to their own 
system, which made th^ clergy equaUy overlook 

• Calderwood^ p. 268, 412, 

i* Calderwood, p. 41 8—430, he tells us that the vote ipras cainried in the 
assembly by a small majority. Mr. Gilbert Bodie, a " drunken Ork<* 
ney ass, led the ring,! — ^the rest of the north followed, — ^all for the 
body, with small regard to the spirit." See p. 429, et seq, 

X Calderwood, p. 401, 403, 410, 414. 

§ Spotdswoode, p. 449, 452, 456. This author tells us that this 
airangement was intended by the King to be merely temponM7, tilt 
^he public feeling was prepared to submit to greater innoyation, 



iKtROpUCTION* 409 

hopes of preferment, and the dignity it was caU 
culated to confer upon the whole order *. But this 
view bespeaks little insight into the springs of hu- 
man actions, as well as very limited notions of real 
dignity ; and is equally contradicted by the after 
defection of so many, through the influence "of 
bribery and preferment, and by the accounts which 
the staunchest of the clergy have themselves trans- 
mitted. It has been seen that the king's object 
was indisputably to render the church subservient 
to his will : The evidence is equally clear, that 
the opponents of the measure descried in it a plan 
to raise a few tools of government at the expence 
of the general body ; and that their zeal against it 
was ascribed by the court party to pride and am- 
bition. The clergy were then a powerful, and 
consequently, a dignified body, admitting superio- 
rity in no bishops whatever, and obtaining reve- 
rence from all classes: Even the King beheld 
them with fear, and shewed every token of re- 
spect f . By the establishment of episcopacy, a 
few favourites of court obtained distinction j the 
rest, under their control, met with as little respect 
from the higher ranks as from their superiors in 
the church. The poor curate derives small dig- 
nity from the honours and emoluments of the 



* Robertson lias taken this ground; and Wight, in his treatise on 
elections, has servilely followed him in it. See Calderwood, p. 441. 

t The reader would perceive, that in his general address to the 
whole states, including tte church, the king gives the precedence to 
f be cleig7; and ^ther office-bearers <^ the kirk* 



410 XNTR0DUCTI01f« 

Archbishop of Canterbury* In opposing the intro* 
duction of episcopacy, therefore, the clergy advo^ 
cated their own interest, and studied the means of 
supporting their station in the community *• Nor 
did they conceal their sentiments ; the wisest and 
purest of the body thus expressed themselves re* 
garding this act of Assembly : " That it would 
break the bars of all their caveats, and without 
doubt establish lordship'* (in the bishops appointed 
according to the plan) " over their brethren^ time 
strengthening opinion, and custom confirming con- 
ceit t:"-*" That all caveats would not prevent the 
bishops /rom keeping pre-eminence and lordship over 
their brethren .— ^for that they would be so esteem-* 
ed and saluted amongst the rest of the Lords in 
Court and Parliament, and their manniers being 
framed thereto, they would look sour if they 
wanted the same names in the kirk and amongst 
the brethren, otherwise contemn them, and en« 
deavour the overthrow of the platV The in-f 



* Calderwood^ p. 431. If the reader will consult this author in 
the page referred to^ he will perceive that the clergy were a politip 
and penetrating generation- 

t Archbishop Cranmer^ in a letter to Lord CromweU^ shortly after 
England had thrown off the papal yoke^ containing a vindication of 
himself for using the style of Totius Anglim Primas, and his so flOOQ 
visiting Winton diocese ; against the complaints of Stephen Gardner, 
Bishop of Winton— justly observes^ '^ I doubt not butt all the 
Bushopps of England would gladly have had the Archbushopp's both 
authoritie and title taken awaye^ that they mighte have byn equeU 
together^ which well appeareth by the many contencions against the 
Archbushopps for jurisdiction in the Court of Rome." Scott's Somers* 
Tracts, Vol. I. p. 49. 

X Calderwood^ p. 431-3^ 4r« 



jBldlpus intention of the measure thej likened to 
the -art of Sinon, in persuading the Trojans to 
Introduce the wooden horse into the cityj and 
one exclaimed, ** Busk, busk, busk him as bo^ 
pily as ye can, and bring him in as fairly as ye 
■will, we see him well enough, we see the horns 
of his mitre */' Indeed, what the hypocrisy of 
James w^s calculated to conceal, his literary vani- 
ty had divulged. Seven copies only of the Basir 



* J. Mdvilk's Memoirfi, MS. p, S26, et seq. By the w^y^ An^r 
drew Melville's Latin poetry has been admired; but the Specimens of 
English poetry by jMr. James are execrably b^. He has one, fol* 

lowing up die simile of Sinon.i ^N.B. Busk signifies to dress* 

€alderwood, p. 41^.. See also 449, 457, and 461-7, N. B. There 
Ysis at this time a fearful eclipse of the sup. By the way, the miracles 
of that period were manifold. The following is a'passage from Spottis^ 
woode, regarding the miracles in 1556, which accompanied the dawn^^^ 
iisg of the Reformation, a|id took plape nine years before his own 
birth. Besides a oomet, according to custom?—'^ gre^t rivers in the 
midst of winter dried up, and in simimer swelled so high, as divers 
villages were therewith drowned, and numbers of cattle feeding ill the 
valley-grounds carried to the sea ' Whales of a huge greatness were 
cast out into sundry parts of the river Forth, hailstones of the bigness 
of a dove's egg falling on many parts, destroyed abundance of corns, 
and which was mpst terrible, a fiery dragon was seen to fly low upon 
the earth, vop^iting forth fire, both in the day and night s^on^ 
which lasted a lopg time, and put people to a necessity of watch- 
ing their houses s^nd corn-yards." P. 04. Is it not most strange 
{hat an author eis^pecting to be believed, and who had taken up the 
pen to defend Episcopacy against the Presbyterian party, and had 
consequently numerous bitter enepiies, should have disgraced his 
pages with such a statement ? Is it not still stronger, that the party 
writers, however disposed to charge each other with falsehood ii^ 
other lespects, should, as if by mutual convention, permit such ab- 
surdities to pass without observation ? They dealt not so with the 
Roman Catholics, whose miracles were exposed, because t^ey were 
calculated to support the system attacked* 



412 INTRODUCTION. 

licon Doron were printed, and these cautiously 
circulated^ amongst a select number of individuals, 
whose secrecy was depended on ; but it is a trite 
remark, that a secret can never be safe with a 
number of men ; and therefore, in spite of all pre- 
cautions, one of the ministry saw the work, and 
communicated some of the principal passages 
regarding the church to his. brethren*. Had 
any doubt remained in their minds as to the mo- 
tives of the King, this must have removed them ; 
and the most vehement protestations by him to 
the contrary could only serve to rouse resentment 
at his treachery. His meanness on this occasion 
tended to the same purpose : Knowing that none 
durst exhibit the book itself, so as to justify the 
minister who liad piade the disclosure, he issued 
a warrant for his apprehension, and would proba- 
bly have inflicted the punishment of falsehood or 
leasing-making, upon an honourable individual, had 
he not escaped persecution by flight f . 

* J. Melville's Mem. MS. p. 331, et seq, Calderwood, p. 428. 

f How then could Mr. Hume err so widely as to give the foUowing 
note ? " James ventured to say in his Basilicon Doron, published 
while he was in Scotland, ^ I protest before Grod> and since I am here 
«s upon my testament, it is no place for me to lie in, that ye shall 
never find with any border or highland thieves greater ingratitude^ 
and more vile lies and peijuries, than with these iame fanatic spirits: 
and suffer not the principal of them to brook the land.' " — ^Now, 
though it be true that this passage is to be found in the Bas. Dor. 
and that it was printed while James was in Scotland, — ^it was i^ot 
published, nor durst he have done so. See Calderwood, an author, by 
the way, whom Mr. Hume does not appear to have consulted, though 
the most faithful historian of the Scotch pjiurch. P. 428, 435. At 
this very time the King declared^ with many protestations^ that be 



INTRODUCTIOHir* 413 

Having gained so important a point, James 
matched the opportunity of introducing greater 
changes, and his accession to the English throne 
enabled him to execute bis schemes with an infi« 
nitely higher hand *. His fury was soon directed 
against the most eminent independent members of 
the church. Some he banished, some he confined, 
others he deposed f. Having struck terror by his 
proceedings, he endeavoured to gain the rest of 
the body by corruption. Preferments and hopes 
of preferment seduced some ; bribes, by money 
sent from England, won pthers. The defection of 
many enabled him to adopt plans either insidious 
or arbitrary for silencing the remainder. Bishops 
were appointed constant moderators of presbyte- 
xies, synods, and assemblies, in order to prevent 
the rights of the Presbyterian church from being 



did not wish the Anglican kind of hishops. Calderwood^ p. 418. 
Yet that he had fully intended it^ his great apologist Spottiswoode 
assures us. P. 453. Though the work entitled Basilicon Doron was not 
published, Spottiswoode has the effirontery to all^e that it greatly 
eondliated the affections of the English^ and payed the way to the 
King's succession. P. 456. 

* Besides direct power^ his influence^ arising from two sources— 
his power to reward^ and the insecurity of church property enjoyed by 
the nobles^ — was very great. We have^ in th<e publication of Letters 
by Lord Hailes, a striking proof of the abject baseness of the court ad- 
herents. Lord Fleming, in a letter to the King, expresses his zealous 
desire to follow his master in all matters^ either of church or state^ 
declaring that different conduct was inexcusable in a subject. Let- 
ter 2d. 

^ Calderwood, 496, 549, 564. We shall comprehend this likewise 
ill other quotations immediately. 



414 iNTltOllUCTIOK. 

even the rabject of diMrassiGii*: and (in 1609) two 
courts of Hig^ Commission, afterwards muted, 
were constituted by the mere will of the Princef* 
Under the cognisance of this tribunal ieD all acts 
and words importing a dislike to the estate of 
bishops— adulteries, fornications, and in short, 
most offences against morals or society. The 
judges, chiefly ecclesiastics, and all tods cf go* 
vemment, were empowered to depose ministers, 
and to inflict punishment upon the subjects in ge- 
neral, by arbitrary fines and imprisonment ; and 
even by the terrible sentence of excommunication, 
which, it was specially provided for by a statute 
passed this very year, should be accompanied with, 
as one of its consequences, extrusion of the excom'- 
munlcated from their lands, rooms, and possessionst. 
** This commission,'' says Calderwood, truly, " put 
the King in possession of that which be had long 
time hunted for, to wit — of absolute power, to use 
the bodies and goods of his subjects at pleasure, 
without form or process of the common law^/' In 
this way was episcopacy established, and to ensure 
success to the King's views, and power to the 
bishops, temporal offices of the highest description 
were heaped upon them [[. Yet, after they had 



^Caldenfood^ 550-1, 558, 562»4> 570*9-8, 588-9. Spottiswood^ 
p. 500, et seq. 

t Calderwood, p. 580-4. 
X p. 615-18, 620, 621. 

§ Calderwood, p. 619. For proofs of the treachery and asibitioxt 
of bishops, see 602. . . 

II See p. 612, 615, 621. 



IKTRODUCTIOK* 41£ 

beconde dords in Parliament, Council, Exchequer^ 
Session^ lords of temporal lands and regalities, 
patrons of benefices. Moderators of the General 
Assembly, and Commissioners in the Court of High 
Commission^— and were consequently great and ter* 
rible to the ministry and other professors of religion, 
who had already experienced the iniquity of the 
times in the exile or imprisonment of their leaders, 
the king and his coadjutors still feared a general 
assembly *. As, however, the subversion of li* i609. 
berty is most surely accomplished through the 
medium of popular forms, an assembly,— or rather 
a meeting under that name,— was judged neces^ 
sary for perfecting the designs of the court. But 
a free election they durst not trust : The very time 
of meeting was studiously concealed, select indivi- 
duals were summoned by the special order of the 
king, without even the appearance of public choicef • 
An assembly so composed, and influenced after all 
by the corrupt acts of bribery, promises, threats t. 



* Calderwood^ p. 621. + Calderwood^ p. 621, 622. 

X Calder. p. 624. It was said that presbytery was a word the 
long could not hear with patience. P. 625, 630. The king calls 
himself God's lieutenant, and declares his intention of acting without 
the church if they did do the thing themselves. P. 631, 632, 639. 
In p. 640, 641, the temper of both parties may be seen. Mr. D. 
Spence, at the synod of St. Andrew's, observed, '^ that a neutral is not 
fit to live in a commonwealth, let be in the kirk of God." The senti- 
ment is just He is unworthy of the protection of civil society, who, 
when its rights are at stake, declines to share the danger : on the 
other hand, there is such a thing as moderation, which, in the struggle 
of parties, is apt to be forgotten ; and it is well remarked by Swift, 
that many of the most virtuous men have died in obscurity, or per-« 
ished on a scafibld, because they held the golden mean. 

1 



416 INTRODOCTIDK. r 

was easily induced to give its sanction to 4he pre^ 
conceived conclusions of the court ; and these 
were immediately enforced by a terrible proclama* 
tion, — ^forbidding the subject, of whatever degree, 
to impugn them either in public or private, and 
commanding magistrates to imprison such as should 
infringe the injunction till the lords of the coun- 
cil determined their punishment. Nay, private 
individuals were ordered, under the penalty of 
being themselves adjudged guilty, to inform against 
those who, in their hearing, transgressed the com- 
mand. " An evil deed," observes Calderwood, 
with much truth, " hath need to be well backed *.'* 
Having, by such crooked policy and arbitrary 
proceedings, established Episcopacy upon the ruins 
of the Presbyterian polity, the next object of James 
was to substitute the rites and ceremonies of Eng- 
land, — abhorred by the people, for the simplicity 
of the ancient worship. For this purpose be vi- 
1617. sited his native country in I617, and, though he 
had sufficient prudence to abstain from changes, 
recommended earnestly by Laud, who accompa- 
ned him, which he perceived would probably 
kindle the flame of rebellion throughout the king- 
dom f ; he proceeded far enough to disgust the 
people without satisfying himself. The Scotch 
bishops, who, like renegadoes in general, were ea- 
ger, upon any terms, to purchase the favour of 
their new master, as a recompense for conscious 
treachery, and the consequent abhorrence of their 

* Calderwood, p. 639. 

+ Racket's Life of VVilliams, Part i. p. 64, 



llfTKOZ^UCTIOW^ 417 

old frfen Js, and fa revenge upon the latter the 
feelings of which they knew themselves to be 
worthy objects, had flattered the king with the 
prospect of an easy compliance in the people *. 
But symptoms of disgust so strong soon broke 
qutf, — many of the nobility, trembling for the 
church property they had acquired, joined the op- 
position f, — as damped his hopes, displeased him at 
the bishops, whom he called dolts and deceivers fj> 
and led him to resist, and be offended at the ur- 
gent advice of Laud to introduce the rites by 
force f. In the imperious tone, however, with 
which he executed part of his plan, and the hu- 
mour with which he relinquished the rest, may be 
traced ample proof of an arbitrary disposition ^. 
Some of the ministry, amongst others Calderwood 
the historian, had met to protest to parliament 

* Calderwood bas preserved a letter of Biabop GIacbtoiie% wMch 
is in the tme straiii of a bishop suddenly exalted^ and of a renegado. 
He says^ '^ all men follow us and hunt for our fayour."* P. 645« 
The king declared that his motive for coming to Scotland was a Solo* 
mon-iike affection to see his native and ancient kingdcum^ and earnest 
desire to perform some parts of his kingly office^ &c. P. 673* 

* The people were offended with the decoration of HoIyiood<* 
house with images^ &c. Calderwood, p. 67& 

X Caldfi!rwood> p. 675. 

II Calderwood^ p. 685. 

§ Hacket's Life of WiHiams, Part I. p. 64^ 

Yet it must be obsenred, that in r^ard to the decking out of the 
chapel at Holyrood-house with images, James lost all patience with 
the bishops for dissuading him from the measure. See a letter of 
reproof l&om him to the Archbishop of St. Andrew'sr, the Bishops of 
Aberdeen^ Brechin, and Galloway, and certain ministers of BdiiK 
Ipui^h on that subject. Letters published by Lord Hailes^ p. 7i^^ 

V Calderwood, p. 679^ 681, 684, 685, 686. 

V0L» U 2 £ 



418 INTRODUCTION. 

against an act which was secretly prepared ^q de- 
clare that, whatever should be determined by the 
king in regard to rites, with the advice of the pre- 
lates, and a competent number of the clergy, by 
which might be meant any number, should re- 
ceive the force and operation of a law. The two 
who had subscribed this protest, and Calderwood 
who had drawn it, were summoned before the 
high commission, where James himself presided, 
and poured out insulting language that would have 
degraded the meanestjudge; and, after the mockery 
of a trial, the two who subscribed that protest 
were punished with deprivation and imprisonment, 
and Calderwood himself with exile *. 
Five Arti- The object of the king at this timie was chiefly 

clcs g£ 

Perth. accomplished by five articles, afterwards known by 
the name of the five Articles of Perth, from having 
been ratified by a packed and overawed assembly 
there; and which were to this purpose: I. The first 
commanded communicants to receive the sacrament 
kneeling. II. The second enjoined or permitted 
the administration of the Lord's Supper privately 



* Calderwood says that the king at first intended to have sent hiia 
to Virginia^ p. 685^ 686. The king's indecent conduct to Caldex- 
wood, p. 681, 682. 

The impudence of the bishops was extreme. Spottiswoode the 
historian, then Archbishop of St. Andrew's, in a sermon at this time, 
railed against Andrew Melville as an innovator and so forth. '' So 
impudent and shameless was the man,'' says Calderwood, " who in fox^ 
mer times durst scarce open his mouth in his pres^ioe. He inveighed 
bitterly against many worthy men of the ministry, who vrtsre tliea 
resting from their labours, and said some of them w^e profkne men 
and deserved to be hanged." P. 669. . See favthetp. Wl. 



INTRODUCTION. 4 1 9 

to the sick. III. ITie third allowed the baptism 
of children to be performed privately, and com- 
manded that the priest should admonish the people 
never to defer it longer than the next Sunday after 
the births IV. The fourth commanded that chil- 
4ren of eight years old should be catechised and 
blessed by the minister, or, in other words, confirm- 
ed. V. The fifth ordered the observance of certain 
festivals commemorating the descent of the Spirit, 
the birth, p^sion, resurrection, and ascension of 
Christ-^Tbough^ as the only way to insure obe- 
dience in the people, it was necessary to have 
these articles sanctioned by the form of an assem^ 
bly, the means used to influence it were some of 
them of the coarsest kind *. The expediency of 
yielding was enforced by the threat of incurring 
the wrath of authority — imprisonment, depriva- 
tion, exile— utter subversion of the estate and or- 
der of the church ; and, to discourage opposition, 
it was plainly intimated that neither reasoning nor 
numbers should prevail t. But the vote of such 
an assembly could tiot satisfy the people, and, 
therefore, severity was resorted to for the purpose 
erf subduing their stubborn spirit*. The act of 

« 

* Calderwood^ p. 697^ in proof of the method of proceeding- See 
aiBO pv 675^ 676> 677. 
- + Oaiderwoed^ p. 714. 

% Caldowood^ p. 733^ 736^ 749. See the spirit of the people ma- 
nifested in 734y 753—755. In the Old Kirk^ the chief cotnmunicants 
in the new fSashion were the lords of session. In the College Kirk, 
oat of 1600 communicants only ahout 20 knelt, and the chief were 
poor pei^le taken out of the hospital, who durst not refuse. But 
6cm% of the kneelers '' knocked on their hreast, and lifted up their 
hands and eyes/' P. 753. At Easter communion, 1^21, (p. 7S%) 



420 INTEODUCTION. 

this meeting was likewise afterwards ratified by 
parliament, to give it additional authority over the 
public mind *. The clergy tried to avert such a 
legislative enactment ; but their supplications were 
intercepted, the chief petitioners imprisoned, and 
all the clergy, except the ministers of the town, 
banished for a season from Edinburgh t. 

At this distance of time, when the various no- 
tions which have been broached and maintained 
regarding the institutions of Christianity, have ceas- 
ed to agitate the human mind, it requires an effort 
to conceive,.or sympathize with, the feelings of our 
ancestors on the subjects embraced by the five Arti- 
cles of Perth. But it ought never to be forgotten 
that these topics then produced the most violent 
and tragical effects throughout Europe ; and a lit- 
tle reflection will satisfy us that scenes of a similar 
kind would probably be iagain exhibited on such an 
improper and arbitrary interference of the prince. 

there were few communicants^ and many sat — the women all did so ; 
and one being urged to knedl^ answered^ '^ I will either receive it sit- 
tings or not at all/' See p. 754^ for a proof of severity, also p. 811. 
> * P. 767, et seq. The power of the bishops was craftily enlarged, 
and the chedcs upon them omitted. 

Calderwood, pp. 759, 783. Indications of God's wrath at these 
innovations, were inferred from the appearances of the heavens, p. 783. 

The king urged the bishops to carry on the work, now that the 
Articles were ratified by parliament; and attempted to terrify the peo- 
ple by threatening to remove the Courts of Justice. '' But a great 
number was resolved to stand out against conformity^ howbeit the 
- king should bum the town to ashes." P. 784, 786, 811, 812. 

The ministers of Edinburgh were detested by the people, for theii 
ambition^ avarice, and malice at honest men and godly professors. ' 

t Spottiswoode, p. 542. Caldcrwood's MS. Vol. viii. p. 981, et seq^ 
Printed Hist. p. 764, et seci. 



INtRODUCTION. 4S!1 

The first Article is the most material, and we shall 
therefore dwell on it more particularly. All sects 
of Christians, with the exception of Quakers, are 
agreed upon the vital importance to their faith, of 
the Lord's Supper ; but their views of the institu- 
tion have been various, and maintained with that 
keenness which the darkness and magnitude of the 
subject are calculated to inspire. With the famous 
disputes about transubstantiation,consubstantiation, 
and the like, all men of enlightened understandings 
must be acquainted, and we shall not pretend to 
explain the grounds of difference *. These were 
testified by the mode of administering the sacra- 
ment ; and the Scottish church had valued herself 
exceedingly on the purity with which this institu- 
tion had been observed by her ; the communicants 
sittiiig, according to the supposed manner of the 
original supper, and dealing the elements from 
right to left — typical of their familiarity with 
Christ their head t. Even James himself had been 

* To such as desire a general acquaintance with ecclesiastical his- , 
tory,, and the various opinions which have been broached^ I recom- 
mend M osheim's Church History. — Tillotson justly calls transubstan- 
tiation ^^ the grand butning article" of the church of Rome. See his 
Sermons *' On Transubstantiation." 

t Knox's Hist. b. 4. In 1560, petitions were presented to Parlia- 
ment in favour of the Reformation, and amongst the topics complain- 
ed of, ^^ transubfltantiation, the adoration of Christ's body under the 
form of bread," was the first. Spot. p. 150. In the Form of Church 
Policy, it is said that it is only properly administered when it appears 
nighest unto the action of Christ. The defrauding the laity of the 
cup a damnable error. Spot. p. 152-3. '^ In time of blindness," it was 
said, " the holy sacrament was gazed npon,. kneeled unto, carried in • 
procession, and worshipped as Christ himself." First Book of Discip- 



442 INTRODUCTION. 

forward^ as we have seen, to deiiounG0 the Eftgliih 
service 9s an evil said mass, and in this vearjr arti-* 
cle» which enforces kneeling, it is m^ *^ That oiir 
kirk hath used, since the reformation of rdiglon, to 
celebrate the holy communion to the pec^le mt* 
ting, hy reason of the great abuse of ko^^lingy used 
ip the idolatrous worship of the sfacran>ente of pa^ 
pists." Now, gloss over the article in whatever 
terms^ one of two things is indisputable~«ither 
that the act of kneeling V9^ signiflcant of ^me* 
thing importing *^ the adoration of Christ's body 
in the form of bread," or that it was n^t. If the 
first, the question immediately is,, do the domiDii- 
nicants believe in the thing signified ? Let. us sup*- 
pose, which in this instance w^ the i^ct, that 
they do not, it is perfectly pbyious, thal,.iliitfiad of 
all sincerity, the essence of religion, the individu- 
al who approaches the table, professing by gestures 
what he denies the trutl^ oi) is acting the hypo<- 
crite, and, to please an earthly S0verd^, disgrac-- 
ing the cause of his Master. To a zealous man, 
under such circumstances, the terrible denuncia- 
tion of the Apostle, *' He who eateth this breiad, 
and drinketh this Cup unworthily,'^ &c. must im* 
mediately occur. Take now the other view, which 
was the one adopted by the wily bishops to serve 
tl^e present turn, <* that nothing was altered in sub- 
stance, but only in ritual matters ;'' the answer is 
best conceived in the words of the opposing mini- 

line. S^ot p. 170. See p. 181. Cald. p. 9S, 40. See Treatise deno- 
minated Perth Assembly^ where the articles proposed there are fully 
discussed. 



INTRODUCTION. 423 

stcrs, " that all which belonged to the institution 
consisted in rites **." If "a ceremony be necessary 
at all, it ought undoubtedly to be administered ac- 
cording to the communicant's idea of it, otherwise it 
ceases to be that by which he is to testify his creed, 
and fulfil the command. Besides, the abhorrence 
of the mass had, in Scotland, been extended by 
-association to the act of kneeling, in so much 
that genuflexions were thenceforth discontinued 
in addressing the Deity. Much of the same rea- 
soning applies to the other articles ; but indeed it 
would be trifling with the reader's patience to ar- 
gue this farther. Nothing can be unimportant in 
religion-, and the less intrinsically important these 
articles were, the more culpable was the monarch 
in disgusting a whole people by their introduction. 
Had he acted from bigotry, there would have beeii 
an excuse for the man, though not for the sovereign ; 
but the people's resistance would have been ex- 
cusable, nay, praiseworthy, on the same princi- 
ples, and more so on the higher ground — that they 
were not like slaves, tremblingly to place the chief 
itiagistrate in the papal chair, and change their very 
religion in obedience to his absolute command. 
But the religion of James was subservient to his 
politics, even by his own statement ; innovations 
were made to subdue every notion of liberty, and 
these were only an earnest of what he intended t. 

* Calderwood^ p. 724-5, 734. 

f As self-complacency is the basis'of happiness, the human mind la- 
bours to justify its bad actions to itself by a certain modulation of its 
opinions, and therefore it may be alleged that James ultimately deceiv- 



424 INTttODUCTJOK. 

The assembly which ratified the Articles was 
the last held this reign ; and though James had 
prudence enough to abstain from farther innova- 
tions when he perceived the violent effects pro- 
duced by these, he^ with the strangest inconsist- 
encyj proceeded to obtrude them, and afterwards 
even something more*, by persecution, upon an 
indignant people^ when his death gave that king- 
ed liimseif, by reMHitmenl, into a belief of the importaiice of the articles 
which he arbitararily imposed. But, as in all his speeclieB, his grand 
Abjection to the Catholic doctrine was its king-killing, and long-depos- 
ing principles^ and to the Presbyterians, the democratical tendency of 
thdrs ; as his conversation is said to have been dissolute and abomina- 
bly profone. Coke, p. 151, X conclude that he was himself the god of 
hifi own idolatry. R. Coke is called by Mr. Hume a paasionate writ- 
er ; but in this respect his accuracy is established beyond a]14oubt by 
Buc*kingham's Letters to James, published by Lord Hailes. See p. 80. 
A favourite who could descend to the most abject flattery, (see p. ITT.y 
would not here have dared to write with shameless profanity, unless it 
had been agreeable to his master. — ^Why impute to him greater sincer- 
ity than to the clergy who so basely deserted their principles ? James 
Melville observed that the church could only be safe with assemblies 
and presbyteries ; " for" says he, " who shall take order therewith ? 
The court and bishops ? as well as Martine Elliot and Will of Kin- 
mouth, with stealing on the borders." Cald. p. 168. By the way, 
those who peruse the whole of J. Melville's letter on this subject, will 
scarcely think him entitled to the character of mild, which was attri- 
buted to him. See Spottiswoode, p. 53i>, James says, either " we 
and this church must be held idolatrous in this point of kneeling, or 
tfaey reputed rebellious knaves for refusing the same." Yet he was 
so far frajA persecuting the Catholics, that he hazarded a rupture with 
the English Parliament, and practised the grossest hypocrisy in sus- 
pending the laws against them. Nay, he entertained a great partial- 
ity for that church, though he disclaimed it publicly* But Catholicism 
is favourable to arbitrary government and the divine ri^t of kings. 
See the pretensions to a divine right by this monareh in his Bas. Dor. 
New Law of Free Monarchies, Speeches, and Spot* p. 537. 
* Cald, p, 800. 



UTTRODUCTION. 425 

dem a short respite by devdving the odious ta^* ' 
upon his son *• 

The governments of Scotland and England boreSrSr" 
a striking analogy in some respects, but in others®******^ 
they dif&red materially. The commons of £ng-« 
land had, in the thirteenth century, begun to form 

a distinct branch of the legislature ; but in Scot- 
land, though representatives of burghs were early 
admitted, no commissioners for shires appear to 
have attended till the year 1587. By the theory 
of the Scotch, and, as it is generally believed, of 
the English constitution likewise, ail tenants of 
the crown, or barons, as they were denominated, 
were entitled to sit in parliament ; but many, from 
the smallness of their livings, and the overwhelm- 
ing influence of the great aristocracy, had forborne 
to attend an assembly where they were merely ob- 
jects of disdain. Their presence, however, being 
accounted useful to the sovereign — as it was no 
less their interest than his to curb the excessive^ 
power of the nobles, and their consequent abuse 
of it — a statute was procured by James I. in 1425, 
enjoining their attendance. But the impracticabi- 
lity of the attempt led to its abandonment, and oc- 

* Cald. p. 786^ 811^ 812. Calderwood tells us there was a great 
tempest, with an extradrdinary tide, and direfnl effects, the day 
King Charles was prodaimed, and another at the funeral of James, 
p. SIS and316. '^ Upon the Lord's day following," (the death of . 
James) '^ die ministers of Edinburgh commended King J 
the most religious and peaceable prince that ever was in the 
wiorld. Mr. John Adamson said. King David had more faults than 
lie had; for he committed both adultery and murder, whereof King 
Jianm waa not guilty." 



42fl INTRODUCTION. 

ctoioned the statute 1427, allowidg the barons in 
the various shires to chuse commissioners, or de- 
puties, annually, to represent their hodj in the na- 
tional assembly, and reserving power to the mon- 
ardi to summon the nobles by precept *• This sta- 
tute, it will, be observed, was nearly two centuries 
posterior to the representatioti of the commons in 
the sister kingdom ; nor was that the only ground 
of difference. In England, the right of votilig was 
not confined to mere tenants of the erown, but 
was indisputably exercised by all freeholders ;'and 
one ingenious man of the greatest actiteness has 
eyen maintained that it was enjoyed byfieefnen in 
g^neralf previous to the stat.. Henry VI. limitirfg it 
to freeholders of 40s. annual tmi t. But in Scot- 
land, kte as the measure Was of being infr6d^ed, 
it was restricted to proprietors who held of the 
crown J and yet, such had been the state of pro- 
perty and manufactures, that the drrangemeM en- 
tirely failed t. The btirghs had early acquired a 

, * See Scots* Acts. Mr. Miller tiiiiiks tbat ihis iSirows iavtxStr fight 
upon the origin of the English representation^ because James I. was^ 
educated in England : but I am of a different opinion ; for the right 
of suffrage would have been equally extensive, had the king copied 
the English model. See Millar, Vol. II. p. 208, S09. 

t See Bentham on Reform, Introd. p. 72^ etseq. note. . 
.% ''Ax the first w« were all one house," said ih^ cejbbrated Mr. 
afterwards Sir Edward Coke, in the year 1592r<^ 1593^ a€ the time 
speaker of the commons, '' and sat together, by precedent which I 
have of a parliament holden before the conquest^ by Edwaifd, thb son 
of Etheldred ; for there were parliaments before ihe conque8t> that 
appeareth in a book which a grave member of tbis house di^vered 
unto me, which is entitled Modus tenendi Parliamentum, &c. ; and 
this book declareth how we all sat together ; but the commons sitting 



INTRODUCTION. 427 

right, of reprteeiitation^ and their commissioners 
sometimeisi attended^^the commissioners for conn-* 
ties iieven "^he lesser barons, perc^ving that laws 
ihtmed to idielter them from the tyranny of the 
greater, \^ere devoid of vigour, could have no alacri- 
ty in enai^ng them. Besides, as all the estates sat 
iu onie chamber, though it appears to have been 
intfldded by the act to divide them, the commis-* 
siOQ^rs were treated with "stEperciliOus contempt 
by the; haughty noblesy and therefore shunned 
the situation. But a piactite which bad been 
intrpdiieed ibr the dispatch of business in Scot- 
land, .became Ia;tterly of vast importsnce as an 
iu^e^ient of the constitution. The parliament 
had early dmsed the plan of selecting a commit- 
160 to. prepare the bills, or articles, which were ta 
form the objects of discussion by the house : But, 
ilit p;^ooess of time, an idea began to prevail, that 
no W^f or article, could be submitted to die legis- 
lature ei(cet>t by this orgaii ; which threw an im- 
mense weight into the monarchical scide, since, in 
order to crush any bill in embryo, it was merely 
necessary to secure a majority of the committee, 
or lords of articles ; and the method of chusing 
tbal body promised the means of success. For it 
appears that, in the year 1560, the spiritual lords 
elected the temporal who were to be on the arti- 



Sn presence of the king, and among the nobles, disliked it, and found 
fault that they had not free liherty to speak. And upon this reason, 
that they might qpeak more freely^ being out of the royal sight of the 
king, and not amongst the great knds, sv £ur iheir betters^ die house 
was divided, and came to sit asunder." D'Ewes, p. 515* 



428 INTRODUCTION. 

cles, and the temporal the spiritual *. Now, as 
the spiritual becaime entirely dependent on the 
prince, the members from their body were likely 
to be well affected to him, and that estate would 
take especial care to pitch upon similarly dispo- 
sed individuals from amongst the peers. The 
burgesses chose their own. At that period the 
gain to the sovereign would be small, as any thing 
deemed by the aristocracy subversive of their 
rights, would be disregarded V but afterwards mat- 
ters were entirely altered. 

The Scotch real representation of barons owed 
its origin to the statute of James VI. 1587. c. 1 14. 
which enjoined the sending of deputies or com- 
missioners from the respective shires, but restrict- 
ed the right of suffrage to free tenants of the 
crown possessed of 40st annual rent, and actually 
residing within the county. This statute indeed 
only confirmed with a limitation the preceding 
one of James I. which had become a dead letter; 
and its object was to afford the prince a counter- 
poise to the nobility. That it arose from no be- 
nevolent motive, is evident from a plan devised 
by this monarch soon afterwards/ to render par- 
liaments organs of his will, the passing of which 
can only be accounted for from the supineness or 

* We learn from Spottiswoode, pp. 149, 150, that, in cliiifflng the 
Lords of the Articles, Jan. 1660, the Romish prelates complained bit- 
terly tiiat the members of the church that were chosen were either 
apostates or laics ; but, says the author, ^^ the, course was changed, 
and it behoved them to take law who had formerly given it to others." 
See Wight on Elections, p. 90. See Henry's Hist. vol. xii. p. 177. 



.,INTttODlTCTlON. 4f^ 

even security of the aristocracy, produced by ex- 
cessive power, or from improper dealing with the 
record *• By Stat. 1594. c. 222 f , under the pre- 
text of relieving parliament of perilous or imperti- 
nent matters, (a specious pretext is never wanting,) 
it was provided that whenever a parliament was 
proclaimed, there should be a convention, com- 
posed of four individuals from each estate, ap- 
pointed to meet twenty days before the parlia- 
ment, for the purpose of receiving all articles re- 
garding either general laws or particular parties, 
which however were, in the first instance, to be 
presented to the clerk register, and by him de- 
livered to the convention, who again were to pre- 
pare them for the Lords of the Articles. Now it 
is singular that no provision was made for the 
election of this previous meeting, so that it de- 
volved necessarily upon the crown — a circum- 
stance which exceedingly heightens our astonish- 
ment at the statute. For, in this way, no bill ob- 
noxious to the court, could ever even reach the 
Xords of Articles, since it had to pass through 
first an individual officer of the crown ; and, se- 
condly, a committee of its nomination. But, 

* Scots Acts. Spottiswoode says some of th» noMes opposed the 
act. P. 365. 

t All men of intelligence in Scotch afiairs know that President 
J'orbes was the first who put a stop to the iniquitous practice pursued 
by his predecessors^ of altering the judgments of the Supreme Court 
^ter they were pronounced. The judgments were^ previous to th^ 
time of Forbes^ written out in the President's Chamber ; but he pro- 
cured an alteration of this practice by a provision to have them sub- 
scribed openly in presence of the whole court. 



430 INTRODUCTION. . 

ihough this law was permitted to disgrace the sta- 
tute book, the grossness of its tendency was too 
apparent td be reduced to practice * (something of 
the kind, however, was resorted to in 1621) till 16S3, 
when Charles (a fact that seems entirely to have es- 
caped historians and writers on this subject) ased it 
as an engine for the accomplishment of his arbitrary 
designs f . After the accession to the English throne, 
when the sovereign had gained an immense increase 
of power, a new device less glaring, though equally 
efficacious, was resorted to t. The bishops, mere 
tools of government, having been created against 
the wishes of the people, nominated, as formeriy, 

* Yet both in 1613 and in 1617^ James nomiiiated the Lords of Ar<- 
tides. See the case of Balfour of Burley in Hailes's CoU. for the first, 
and Spottiswoode^ p. 531^ for the second. The author tells us^ widi 
ai^»arent condemnation of the Parliament^ that in the choioe of the 
Lords of Articles, the persons nominated by the king were passed by 
as suspected, and they were for refusing the admission of any crown 
officers but the ChanoeQor, Treasurer, and Clerk of the Rolk; but 
they were all ultimately admitted. 

In 1621, a proclamation was issued, ordaining all petitions to be 
presented, within a limited time, to the Clerk Register, that they 
might be examined by a certain number of the Council before the 
meeting of Parliament, as from the shortness of time allowed to Par- 
liament, the Lords of Articles could not thoroughly sift them. Cal- 
derwood's MS. Hist. Ady. Lib. vol. viii. p. 978. The inference is 
clear, and accordingly the Presbyterian clergy were told by the Clerk 
Register, that he doubted whether he oould recdve their supplication, 
lb. p. 998. 

t Itis very remarkable, that this fact escaped not only Hailes, but 
Laing and others, yet it rests on the best authority, Balfour's An* 
nals^ MS. AdTocates' Lib, Vol. ii. p. 67. et seq. 

X Those who look into the case of Balfour of Buriey in HaHes^t 
Letters, p. 40, et seq, will see what influence was used in the elec- 
tion of die liords of Artiides after James's secession to the EngUsb 
throne. 



INTRODUCTION* 431 

eight noblemen for the a^tiqlos, the nobles eight 
l>ishQps i and th^se ^ixtee.n again niominated eight 
barons pr cominissioners of shiresi} and eight biir* 
g^ssies, a pl^n yrhich put thq nomination altogether 
in the hands of the bishops^ and by consequence 
in those of the crown. With even this, however. 
Japes w^s i|ps?^ti?ified ; and therefore, as if to pre- 
vent the possibility of failure, the principal officers 
of state wer0 addpd to the number, and while no 
article frpm the subjects could obtain a hearing 
without the Qonsent of the committee, a special 
prpYiso was mftd?» by the act 1594, in favour a£ 
the sovereign, pmppwering him to present article 
directly at apy period. By this device, a law ob- 
noxious to parliament might be rejected ; a popu- 
lar one, disagreeable to the king, could not even 
he the subject of discussion *, 

* See late publication of Scots Acti^ for a list of Lords of the Ar-* 
ticles at the b^iiming of each Parliament. Officers of state were 
first i|d4ed in :|Q06,. The m^nber varied from six to eight; and 
the general nmnber from each of the States was eight. The act 
of James VI. anno 1587^ enjoined not fewer thaii six^ and not 
more than ten.— N.B. There was no act allowing the Officers 
^ 9l^t^ V> be put upon the Articles^ till 1st of C. II. which con- 
firmed the previous practice. See S{»ottiswoode> p. 488. 490.-— 
The arbitrary conduct of James may be traced in every act of go- 
'vemment. The Lord Balfbur of Burley had shewn some stiff- 
9^89. M ihe choice of the Lords of Articles^ and he was subjected 
to persecution. Commissioners^ forsootl^ were appointed to inquire 
into his conduct^ &c See Letters published by Loxd Hailes^ p. 
4a^ 41. 

liOrd Hailes in&rs^ that the bishops were not all in the interest of 
the crown^ because a court list of such as were thought fit to pass up- 
on the articles^ and. were thei^fore to. be elected, was deemed neces- 
sary. But is there no difference in talent^ dexterity m intrigue^ an4 

want of scrupulosity in every pointy amongst the adherents of a prince ? 

1 



432 iNtRODUCTfonr- 

Airte o£ After tbe union of the crowns, societjr under-' 
turent a material change. The inveterate fends of 
the nobility were suppressed, associations for nan- 
tual security or offence prohibited, and the power 
of the prince exalted above the aristocracy. Salu- 
tary as this change on a slight inspection nKiy ap^ 
pear, it could not fail to be productive of misery 
to the people, in a somewhat similar way to tbe 
great change of manners in England. Manufac- 
tures had been long imported for staples; but, as 
the power and distinction of the aristocracy arose 
more from the number of their followers than the 
costliness of their living, the quantity was trifling* 
Upon the suppression of feu(fe, however, numer- 
ous dependents became of less consequence j reve- 
nue, from many causes, of infinitely more. The 
neighbourhood of England, and the intercourse 
with France affected Scotch manners j but the re- 
moval of the court to the sister kingdom attract- 
ing the gay, who returned with splendour ta their 
native country, rapidly promoted a spirit of imita- 
tion. And as courtiers, to support 'their credit 
with the English nobility,^ endeavoured to derive a 
larger revenue frcnn their estates, which could 
only be accomplished by the dismission of a nu- 
merous petty tenantry for such as could embark 
in larger undertakings *, their example must have 
been to a certain degree quickly followed. But 
the free importation of manufactures^ preventing 

* It would not be difficult to shew^ however^ that extensive tracts 
were> at a much earlier period^ let on lease* 



INTRODUCTION. 433 

the growth of them in a country destitute alike of 
capital and skill, and exposed to so many discou- 
ragements from an oppressive governm^t, a potent 
aristocracy, hereditary jurisdictions^ and the evil 
dispensation of justice in even the supreme courts *, 
to which few could obtain access } the great body 
of the people were without almost every kind of 
subsistence. A part, indeed^ found a resource in 
emigration, which is reported to have been great ; 
yet the general misery was indescribable. In the 
accounts transmitted by Cromwell's army, in 16^0, 
then in the richest district of Scotland, we meet 
a loathsome picture of wretchedness : ** That the 
countrymen were so enslaved to their lords, that they 
could not get any thing considerable. of their own 
before-hand} and many of their women were so slut*^ 
tish, that they did not wash their linen above once 
armonth, nor their hsmds and faces above once a-; 
yeart." This account, though probably exagge* 
/rated, must have been deeply founded in truth ; 
and if it be only considered that filth, in a people,, 
is the most infallible test of penury and misery, 

* The extreme corruption ot justice may be concluded from a let- 
ter from Alexander Fraser^ Bishop of Aberdeen^ to King James^ after 
his accession to England^ requesting his majesty to write to the presi- 
dent of the Court of Session " to be his friend in all his lawful acts"-— 
suits of law. See Letters^ &c. published by Lord Hailes^ p. 80^ in a note^ 

Whoever will take the ttY>uble to look into Hailes's publication of 
Letters^ p. 1^ etseq. will see the most revolting pictcffe of public jus-' 
tice. Judges were influenced by promises attd threats— a jtiry packed^ 
&c. all to convict WeLdi> a Presbyterian minister. James himself 
was most keen in the business. 

f Whitelocke's Memorials, p, 468. There were, however, evert 
then, some large lease-holders. 

VOL. !• 2 F 



cCidigioii* 



434 INTRODUCTION. 

since they who are ber^ of other comforts gene» 
rally want the spirit to embrace that of cleanliness^ 
which is within their reach*— their condition may 
be conceived *« 
TiM A^ A gloomy austerity has been imputed to the 
early Scotch presbyteriansy and it has been ascrib* 
ed to their religious tenets which inculcated that 
all mankind are naturally in a state of reprobation^ 
and a few only selected for grace through the me- 
rits and benign intercesuon of the Saviour f. But 
were this conclusioD just, we riiould still witness 
the same effects, not in Scotland only, but through* 
out the reformed church, where simitarqprinciples^ 
somewhat modified, prevail at this day. ifothing, 
however, is more fallacious than a sweepii!^ de« 
duction from a people's faith. So dark a veil en« 
vdope» futurity, so vague is the picture of it formed 
by the most vivid fancy, so insensibly is onets 
creed modeUed by the temper of his mind^ 
and the ordinary affairs of life^^at the votary's 
natural alacrity of spirit surmounts his fkith, and 
either dilposes. him to forget it, or buoys him up 
with the assurance of being numbered with the 



* See Fletcher's Works. To remove tbe misery of the people^ he 
imposes to iBlxodoee domestic sbiveiy. 

In MorysiHi's TniTeh^ Part III. p^ Ulf, published in 1617^ the 
reader wiU find 801Q& aeooiiAt of Scotch maimers. 

t LaAnf^s Hist B^ I. p. S4.. I so^iect that this gentleman baa 
draiRihis opwon^ from the ansteri^ of the ooirepaAten afterwards ; 
Ibi^tting that persecution had almost driven them to ^v^^rm^ *^ Th^ 
ootdsst bodMs ynaaa with oppo^ilaon, th^ hardest apirkk is coHivion.'^ 
Junius' Letter to the King. . 



INTRODUCTION. 435 

elect. Bvery unprejudiced eye must petceive 
that general imputations of gloominess asdribed' 
by the established church to dissenters^ and eveit 
by one part of the established church to liie other, 
are destitute of foundation ; and it is evident that 
any inference from the exterior of a very limited 
sect would be distant from the truth. For the few 
who expose themselves to the charge of singularity 
by particular tenets^ are either men c^* melancholy 
habits, or (^ ardent minds, whose feelings, un-" 
sympathized with by the rest (^mankind, prey 
on themsdves ; or such as are ambitioiH of dis-* 
tinctioB, or of credit, by the shew of superior sane* 
tity. Not to religion, therefore, unless to perseco* 
tion for it, but to the wretchedness- in whkrfa the 
bulk of the people were immersed, is ai>y particu-^ 
lar austerity to be imputed. Their religious per^ 
suasion, by ever keeping present to th^r mindift 
that, however despised and trampled on in this 
world, they were no less, but rather more, the fa- 
vourites of heaven, than their overbearing masters^ 
must have preserved the inborn dignity of man, 
and by affording a subject for exalted refltectiof^ 
prevented them from becoming absolutely embrut- 
ed by their miserable condition*. 



* See Spottiswoode as to the early anxiety of the refonners for 
schools^ p. 150. In the FkBt Book of Discipline^ it was determined 
that thete should he a school in every parish^ Spottiswoode, p. 160. 
AH the chief representations of tiie dergy ahout die diitrdi livings 
contain a demand for schods. Very soon after the accession to iSbe 
English throne^ it was resolved that schools should only he totig^ 
hy such as the hishops approved of. Csflderwood^ p. 477. 

2f2 



436 INTRODUCTION. 

^^^« Hitherto our attention has been occupied chief- 
ly with the most civilized part of Scotland i we 
shall now direct it to the Highlands, the Isles, and 
the Borders. The Highlands were inhabited by a 
race little removed from barbarism, who. though 
they acknowledged a nominal subjection to the 
throne, despised its laws. Their language bore 
no analogy to that elsewhere in use, and their 
manners and dress were equally peculiar. The 
whole were divided into clans, each of which, un- 
der the dominion of a chief, or chieftain, formed 
a species of principality that maintained with its 
neighbours the relations of war and peace. The 
members of a clan were distinguished by one 
common patronymic, and boasted of an original 
descent from the same family of which their chief 
or chieftain was the representative *. Nor, from 
the nature of things, could the boast be destitute 
of foundation. For as the chief or chieftain's 
right of property in the land possessed by the 
clan was universally acknowledged, it was natural 
for him to provide in a particular manner, in pro- 
portion to the degree, for those who stood within 
the generally acknowledged degrees of propinqui- 
ty to himself ; and it was his interest to encourage 
them to marry — to which, indeed, a comparative 
liberal provision would of itself sufficiently dispose 



* Leslie de Moribus Scotonun. The Highland garb seems to have 
been the same^ or nearly so^ as the Irish^ which is afterwards describ- 
ed by us. 



INTRODUCTION. 437 

them— rthat he might be furnished with a trusty 
family band, ready to check any defection in his 
other followers. But the territory being fully peo« 
pled, he could only provide for his immediate con- 
nections at the expense of other vassals, whose re- 
moval to an inferior station must again have sup- 
planted those who had occupied it. Hence there 
would always be an overflow^ from the higher 
ranks pressing upon and wasting away the lower, 
till, in process of time, they might all with safety 
boast of a common descent From the state of 
property, the power of the chief or chieftain was 
absolute. His numerous family connections, who 
were interested in supporting his authority, secured 
him against a general revolt ; and as every clan was 
necessarily encumbered with surplus population, 
and chiefs had neither the means, nor would be 
inclined to harbour refugees, lest they should en- 
courage mutiny in their own followers by an ex- 
ample of success, individuals had no alternative 
but submission or death, which might be inflicted 
at the discretion of the chief or chieftain. But as 
his rank and power were liable to no dispute, and 
the boasted origin of his followers in arms reflect- 
ed glory on himself, by a numerous and gallant 
kindred at his beck — he permitted a certain spe- 
des of familiarity, which, while it was incapable 
of misconstruction, sweetened their bondage, and 
increased their attachment. Like all savages, 
though averse to labour, they delighted in the 
fatigues and dangers of war, or of predatory ex- 
cursions ; and as they shared the booty, or were 

2f 3 



438 INTBODUCTION. 

.benefited by any additional territory, into the sur* 
render of whitih a nei^bour had been harassed^ 
and again sufiered with their lord all the calami* 
ties c£ invasian, they were inflamed with the 
same feelings and devoted by passion to his ser* 
vice*. 
I4ei. The inhabitants of the isles were stiU more sa- 

vage than their neighbours on the mountains t ) 

* TJie sUiry weshall give reUting lo the I^les will prove tbis. Bat, 
indeed^ when one party frequently burot^ destroyed^ itnd murdered 
in<Hscrim!nately> all must have felt. Spottiswoode^ p. 390. 

f The foUowing iMtount, fiom Spottlswoode^ p. S48^ of ftftmd in 
1^96, pr«soBt8 a hoaEfid pictoret M^Kimeil ai^d Mljauij two of the 
principal men^ were f^nnectedby marriage; lil'Koneil having married 
the other'p sigter. M'Lain having been educated on the Condpent^ 
had learnt some civility and good mennera^ whi^ procured Imn the 
respect of his ne^bQi|is> and tho envy aiid raneorons hutred of 
M^Koneil> who^ after many petty quarrels^ laid a snare for his life* 
He proposed 4 visit to M'Lain^ and that the latter should accompany 
him to his own country. M^I^ain cheerfolly reoeived him> Imt dof 
dined to give ap apswer about ae^mpapying him. 

M'Koneil visited him^ and remained four or five days with every 
token of amlty^ and then entreated the other's company home;» saying, 
that hi wotid leave his Mesi son end a brothevgetnum ]^dge$ far hi$ 
safety* Overoome with importupity^ M'Laan consented^ but dediped 
the pledg^j lest he should seem to distrust him ; he took with him^ 
however^ forty-five of his kindred and servants. Whep they arrived at 
Kintyrey they were welcomed with liberal feastmg, aocordingto that peo« 
ple^s custom. But at nighty after they h^ retired lo rest in a separate 
house^ M'Koneil beset the house^ and called forth the other to drink. 
To this he replied^ that they had ahready drunk too much^ and that it 
was now tinie to rest. But it is my will^ said the other^ that you rke 
^d come forth* M%ain began to suspect treachery. He^ however^ dress^ 
ed hiniself with his men> and opeped the door^ when^ perceiving a com<« 
pany in arms^ and M^Koneil with his sword drawn^ he asked what the 
matter was^ and if he intended to break faith f " No faith^" said the 
other. ^* I gave none^ and must now have an account of you aud your 
friends for the wrongs I have received." M^Lain had taken his ne- 
phew, a little child, to bed with him, and being put to defence, kept 



an4 Jame8» who seems to iiave considered his sub- 
jects as peeoliariy his property as the IfW stook iti 
bis parks, and who was anxious for the improve- 
ment c^* part of the ten^toi^ over whioh he had 
lieen appointed chief magistrate^ proposed exteiv 
mination as the only means of infjroducing refine- 
inent» and ther^ore made gifts of the temitory to 
certain kidrndaals, with fbmtt to Execute bis pur- 
pose« But the project ended in the disodmfitare 
of the invaders. 

Prior to the union of the crowns, the borders Boidm. 
"were in a pastoral state ; the inhabitants a species 
of freebooters, of depraved habits, ever prepm-ed 
to make incursions into the sister kingdom, and 
«ot unfrequelitly disposed to plunder their own 
countrymen, by whom they were beheld with dis- 



the child oH his left shoulder^ by way of a targe* The child cried to 
his uncle for mercy, and M'Koneil, moved at the sight of his own 
ehild in sucli peril, promised to spare M^Lain's life, provided he would 
surrender liis weapons, and become a prisoner. The otihet was fain 
to con^ly, and was conducted under a guard to another house. His 
followers, witih the exception of two, whom M^Koneil refused to 
spare, surrendered on similar terms. The two defended themselves 
80 dexterously, that the house was obliged to be fired; luid they were 
consumed in it. NotwithstiUiding the promise, however, the rest 
were all beheaded next day in M^ain's sight; and an accident— the 
ialling of M^oneil from his horse and breaking his 1^— was the 
only cause for prolonging M'Lain's life. The king, hearing of this, 
sent a herald with orders to deliver M^Lain ; but stiU he was detain- 
ed, and only got his liberty on the most humiliating terms. This he 
no sooner acquired, than, in defiance of the treaty— ^notvrithstand- 
ing all the civility he had learned on the Continent— 'he fdl upon 
M'Koneil's bounds, burning, and killing man, woman, and child. 
See further as to the state of the isles. Spot. p. 27S. 390* 411. 415, 
416. 519.— King Jameses Works. 



440 INTRODUCTIOK. 

may *• Their habits calculated them for prompti^ 
tude ip reAsting an enemy ; and, as their flocks and 
herds could easily be removed to a distance, inva- 
sion failed to spread the terror, or to inflict the ca- 
lamities, which it occasions to a well cultivated 
district. The people of the respective countries 
had been much harassed by the licentiousness of 
the borderers, and the harmopy between this king- 
doms often interrupted"^ai^ therefore, the pre- 
texts for their military habits were, on the union, 
ramoved, the king used his power to curb their 
lawless livesi and, in a short time, the fields began 
to be cultivated and the manners to phange f. 



* f' in the nKmtfa of Julie/ (anno 1530^) *' the king vent with 
ane aripie of SOOO men to Easdale^" (Eskdale^) ^' to apprehend and 
punish thieves."— -'' John Anustrong, a notable thief> who had com- 
pelled the English to pay black mail, and was terrible in thoee parts 
to the Lo|xL Maxwell himself" (the warden, I believe,) ^' when he 
WHS coming to the king^ enticed by some courtiers, hot without a safe 
conduct, he was intercepted by fifty horsemen lying in ane ambush, 
and brought to the king as if he had been apprehendit by them 
against his will, he and a great number of his companie were hanged.*' 

Calderw. Mem. vol. \. p. 80. See Buch. Hist L xiiL c. 39. Calder? 

• ^ . . .... 

wood has don^ little more than translate from Buchanan. 

Johnston, p. 55. for some account of the Borderers, Nioolson's 
Border Laws. Spottiswoode, 272. 305, 306. 402. 413^, 414. 434. 448. 
Leslie. 

t On the accession James assumed the title of king of Great Bri« 
tain, and ordered all the fortresses on the borders to be demolished. 
Spot. p. 485. 



INTRODUCTION. 441 



CHAP. V. 

StaU tf Ireland. 

Thouc^h Ireland was all nominally subjected to 
the English throne so early as the time of* He;nry 
II., it was only by the great exertions of Elizabeth 
towards the close of her reign, that James was^ in 
the beginning of his, enabled to establish the au- 
thority of the crown in every quarter of that 
island^ 

At the first invasion by the En^sb, the Irish 
approximated to the lowest stage of barbarism, 
and the measures of the invaders, far from being 
calculated to diffuse civilization, obstructed im- 
provement, and, if possible, reduced the inhabi- 
tants to still greater mental degradation.^ They 
were divided into small septs; and powerful 
English adventurers having obtained from the 
crown grants of extensive tracts for the purpose 
.of colonization, drove a divided people before 
them, and occupied the soil. The septs that were 
thus expelled from their habitations in vain sought 
an asylum in the more inaccessible parts of the 
country, since hostile septs, to which they were as 
invaders, opposed their inroads. The new settle- 
ments were, therefore, in a great measure attend- 



*4S INTRODUCTION. 

ed with extermination, and, in process of time, 
the natives every where perceived, that, unless 
they expelled, or at least kept down the English 
settlers, they should be dispossessed of the soil. 
Large seigniories, which were granted from time 
to time to great English favourites, augmented 
the hostility* These could not have been taken 
advantage of without a general extermination of 
the natives, which was impracticable ; but enough 
inttis done to annoy them and spread universal ter- 
yor. At some periods the great lords in the Eng- 
li^ settlements, wishing to render themselves in- 
dependent of the crown, began to form alliances 
with the natives ; but the intercourse, instead of 
civilizing them, led to a degeneration of the set- 
tlers. To prevent this degeneracy and falling oS 
from their allegiance, t3rrannical laws prohibited in- 
tercourse under the pains of treason, and, conse- 
quently, augmented the bitter hatred of the abo- 
riginal inhabitants, who thus perceived themselves 
treated «s if not entitled to the fyrivileges of hup> 
manity. The settlers and the natives were, there^ 
ifore, in continual hostility of the most rancorous 
description. Colonies were, in various quarters, 
from time to time attempted, but the chief set- 
tlement was c€ the pale, which comprised the coun- 
ties of* Dublin, Meath, Lowth, Kildare, &c. 

The natives, in the meantime, retained their 
own laws aiid usages, with the various relations of 
peace and war, within their different septs. Mur* 
der was, as in all barbarous countries, punishable 
only by fine j but the state of property evinced 

5 



\ 



INTRODUCTIOK. 448 

that manners bad not nearly arrived at that stage 
when the easy remission of such a iorime begins to 
form an exception to the genial usages *. The 
chieft of the different septs were elective ; but, as 
was to have been expected, it was gatierally die 
most powerful relation of the preceding one who 
obtained the rule. The territory occupied by the 
sept was conceived to belong to the whole as % 
body ; but the distribution was left to the chief; 
who^ on bis election, made a general partition: 
even on the death of any individual, he made 
a new arrangement, by throwing the lands occui- 
pied by him into the general mass. It may well 
foe presumed that, in every arrangement, he would 
take especial care of those for whose assistance he 
was mainly solicitous. From such uncertainty of 
possession there could be no agricultural im- 
provement* Temporary huts were alone erect- 
ed i and so little was grain relied upon, that, says 
Moryson, << the wild Irish, in time of greatest 
peace, impute covetousness and base birth to him 
that hath any com after Christmas; as if it were 
a point of nobility to consume all within those fes- 
tival days t/' Oats were the only species of grain 
raised ; and these, instead of being thrashed, were 
burned from the straw 1^— though the cows, on 
which they chiefly depended for subsistence, re- 

* Consider ihe dvilizatioB in Homer's iime^ when a mulct was tfr- 
ken for amurdoDed reUtian, and compare it with the savage state of 
Ireland. 

t Description of Ireland^ appended to his history^ p. 37^. 

t Id. p. 374. 



444 INTRODUCTION. 

quired the fodder. They seldom fed upon animal 
ibod ; but at times they devoured whatever died, 
or came in their way, without distinction. Like 
savages in general, their gluttony was unrestrain- 
td while the food lasted ; but then they submitted 
to privation for a length of time. Their cows, 
irom which their chief subsistence was drawn, they 
grazed on the mountains during the summer 
months, themselves inhabiting wretched hovels or 
boolies ; while they carried the herds in the evening 
to aome neighbouring bawn for safety. Their dress 
•corresponded with their general rudeness. It con- 
sisted of a large shirt, in which, by the multiplici- 
ty of folds, they frequently contrived to include 
about thirty»six ells, and which they dyed in saffi-on 
as a preventive to vermiq, and as superseding the 
necessity of washing, a species of cleanliness not 
accordant with their habits : over th^ shirt was 
thrown a large mantle, which not unfrequently 
served as a tent when they lay on watch to com- 
mit depredations, concealed the booty they had 
stolen, and served sometimes even in place of a 
target against the swords of their enemies. A 
large bunch of hair, called the glib, descended 
from the forehead, but, though useful in shielding 
them from the inclemency of the weather, it was 
prohibited by the English, as so concealing the 
features that thieves could not be identified. To 
cement a union amongst the members of the septs, 
the children of the chiefs and their immediate fol- 
lowers were given out to be nurtured by the infe- 
rior people. The affection that sprang from this 



INTRODUCTION 445 

source was astonishing : the famous Spenser tells 
us, that once, when he was present at Limerick at 
the execution of a notable traitor, Murrogh O'Brien^ 
he saw an old woman, his foster mother, take up 
the head and suck the blood, saying that the earth 
was not worthy to drink it» and then steep her face 
and breast in the streams which flowed from his 
other quarters, while she tore her hair and shriek- 
ed most terribly. There was, however, a species 
of intercourse maintained between the higher and 
lower classes, which must have been less agreeable 
to the latter : the former took up their habitation 
with the other, and resided with them so long as 
they had any thing to consume. Nor could the 
great men feel any privation or inconvenience in 
residing with the meaner people, since their own 
houses were wretched erections of clay, or boughs 
of trees covered with turf. They seem to 
have distilled very little spirits amongst them- 
selves ; but so addicted were they to intemper- 
ance, when they could procure the means, that 
even the lords and ladies drank promiscuous- 
ly to the most brutal stage of intoxication. 
The English-Irish did not escape the infection 
of this vice. The Irish had amongst them many 
bards, whose effusions were, according to Spenser, 
surely the most capable of judging, not destitute 
of poetical beauty ; but, suited to the man- 
ners of the barbarians to whom they were address- 
ed, they incited to lawless deeds *• This descrip- 

* He says that a young man of rank found bards and rythmers to praide 
lum and give him enoouragement to lawless deeds^ for ^^ little reimrd. 



446 INTRODUCTIOK. 

tion is not, however, applicable to the whole native 
mce. The chiefs in various quarters applied, from 
time to tim^ for charters from the crown, and be- 
gan to adopt a different system. 

Aa the leading septs were ever ready to throw 
off die semblance of the English ydce, and re« 
cover their possession^ irequent attempts were 
made by the Ehglkh monarchs to reduce them ^ 
biit the troq)^ Kving at free quarters, only spoiled 
the country, and it was, as formerly stated, Eliza* 
beth who, after faavhig been long harassed by tlieir 
pet^ insurrections, and deeply provoked by the 
reb^imi of T}rrone,«-Hn the thirty-mnth of her 

OTB dbaMaf aatobieeow; tii^n waxeth hemostuwolait andlulfe nudde 
with the loTe of himself^ and his owne lewd deeds. And, as for words 
to set forth such lewdness^ it is not hard for them to give a goodly 
and pttfBted shew thereunto^ borrowed eren f^rom the prusea whldi 
aft pnay^ to yertve itoelfe. Asof aiaoatnolnioiis tyefeaadwickod 
outlaw/' (query ? might net such a one have pleaded against th9 
English^ inforo conscientics, that he was trying to recover part of what 
hiseouBtrymen had been robbed ?) ^ whieh hadHved aB his Metime 
•f q^yjes and robbcriesj one of their baids> in- hia praise will say, that 
he was none of the idle milke-sops that was broogjit up, l^ the fire- 
fflde^ but that most of his days he spent in armes and valiant enter- 
pvises ; that he did never eat his meat before he had Won it with the 
flmnd.; tiiathalay not attni^tdn^^ in acahbinunder hismantk, 
but used cQimnonly to keepe others waking to defend their livesj and 
did light his candle at the flames of their houses, to leade him in the 
darkenesse: That the day was his night, and thenig^tluaday; tM^ 
he Idved not to be long wdasof wencthea t(ryedd toluDa^ but kidtkt 
by force the spoyle of other men*s love, and left but lamentation, to 
their lovers ; that his musick was not the harp^, nor layes of love, but 
the icryes of people, and the dashing of annour : and finally, diat he 
died not beswayled of many, but aMdemany waile vHben he dtied, that 
dearly bought his death/' View of Ireland, p. 52, 53. edit. Dublin, 
laas. See the «6tiiBalaon in wMflh the>baRlB wwa hdd^ iMaa iiant 
dopleaae them durou£^fan of being saidcifd infiunoos^ p. 51. 



INTBODUGTIOI^ 447 

re%t), sent an army capable of accconplialdBg the 
purpose. New evils then awaited liie natives: 
n&iriy six hundred thousand acres of land^ in the 
counties of Limerick, Karry, Tipperary^ Water* 
ford, and Munster^ were^ u foidfetted, disponed 
of amoiig Engli^ undertakers : half a miUion wem 
likewise disposed of in the counties of Done;^ 
Tyrone, Derry, Fermanagh, Cavan, Md jAf magb, 
besides immense tracts in other quarters, as not 
occupied on proper titles ; while such a rigorous 
inquisition into the titles of lands Wds eveary 
wh^re instituted, every flaw being taken advantage 
of, that no man could be assured of his possession* 
Regulations were devised under James fbr the im- 
provem^tof the ooiintry, but however judicious 
in regard to the new settlers, they were fraught 
with misery to the fotmer natives.. The chiefs <£ 
septs werenot the proprietors of the soil ; but merely 
intrusted with the occasional partiticHi of it amoi^st 
the inhabitants^ as a subject in which all had an 
inter^t* From time to time, however^ tbeae diieft 
obtained grants of the soil^ as if they bad beien the 
proprietors .J and, now obliged to submit to tJie 
Ei^lish regulations and oistoms, tbey broi^ht 
the great body of the people into def^ndenoe as 
tenants at will, and not unfrequently manifested 
what was deemed a spirit of improvement, by 
drivii^ tbeise miserable beings fiom their Imbita- 
tions, to perish om the mountatas, that tfaey migbt 
let the hmda toEoglish setders^ In a short time» 
however, the appeanme of the country nsderwa^ 
a wond^uL chai^, and manifested externally 



448 INTRODUCTION. 

tranqoiUity and improvement. The natives had, 
generally speaking, till that period, been treated 
by the invaders as worse than aliens* The inter- 
course that now ensued, though it apparently 
softened the mutual animosity, could not reconcile 
men who saw foreigners in possession of their 
soil, and perceived by how precarious a tenure 
they retained what had not yet been wrested from 
them. 

Religion confirmed the mutual animosity. The 
late invaders were generally protestants of the 
stricter kind. The natives, though too unenlighten- 
ed to comprehend the principles of any creed, 
were zealously attached to the Romisdi priest- 
hood, who, repining at seeing their livings occu- 
pied by others, had no difficulty in teaching their 
flocks that their oppressors were rebels to heaven. 
The English-Irish were also catholics of the fier- 
cest description ; and both on this ground, and 
through jealousy of the later settlers, — who, arriv- 
ing with more polished manners, were too much in- 
clined to transfer their contempt of the mere Irish 
to the race that had so long been settled there, — 
they encouraged the Romish clergy, and augment- 
ed the differences by a temporary coalition with 
the natives. 

There had been parliaments occasionally called 
in Ireland, from the time of Edward IL, but the 
lords who were summoned were chiefly of the 
English-Irish, and very limited in number: the 
few English shires alone sent deputies* When, 
however, the whole island was subdued^ it was 



INTRODUCTION. 449 

throughout divided into shires, and members not 
only allowed from the respective counties, but 
from various towns. But the powers of the par- 
liament were extremely limited. Perceiving the 
aptitude of the English, who were the legislators, 
to devise laws oppressive to the natives, and inju- 
rious to the English crown. Sir John Poynings, in 
the reign of Henry VII. introduced a bill, which 
was passed, and called, from his name, Poynings' 
law, prohibiting any bill from being introduced 
into the Irish parliament till it had obtained the 
previous approbation of the king and his council ; 
and the statute was still rigidly enforced : Whatever 
might be the expediency of the law, at the period 
of its enactment, it, in process of time, became 
an engine of state against the liberties of the peo- 
ple*. 

* See Derick> in Scott's Somers' Tracts, enriched with some ea« 
rious notes. Spenser's Account of Ireland. Moryson's, and also his 
Travels. Davies' Disooverie, a work in w4iich we find few traces 
of the elegance imputed to it by Mr. Hume, But these were two 
reasons for his eulogium; one, that he had very little acquaintance 
with the literature of ihe period ; the other, that he had an attachment 
to the author, from his impudent defence of the most arlntrary pro- 
ceedings of his master, James, whose favour he pnrchaied by a pro»* 
titution of his talents. See Temple's History of the Rebellion, 
Carte's Life of Ormonde, vol. i. p. 10, et seq. And here I would re- 
commend to the reader to peruse, p. $7, et s^. for an Instance of 
tyrannous cruelty sanctioned by James, almost lUipaniUeled. 



VOL. I. 2 G 



« } 



NOTES TO VOLUME FIftST. 



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5sa? 



Note A. 



The following are Quotations Jiram Forlescue's fVork, eniiiled 
De Laudibus Legum AngMsd, with the TransliUionsfar the Be* 
nefit of the English Reader. 

CAP- IX. .' , 

^EOv^jDVuyaebf Princeps, quod tu fcpaidasi eonglmili nee m^jori 
f^^lk (Clideliir,. nubitas ncmpc^ an Ai^omm Lcgom, vel Giviliinn 
StudUi T^ c<»9£ee98, dum Ciyiles supra hninanaa ^oinctaa Lcgea 
adia8> Favoa per Qi?beiii.extollat gloriosa. t^on te oonturbet, JFtli 
i^^^hiea Itfentis Evagatio: Nam non potest lfie« ^ij^iUr* ad. Libi« 
tum Mum Ii^g9s mutare Regni su4, jE^rindpa^. pamqu^^|i^i)m B^ 
galij sed et PoUtioo^.ipse suo Populo dominatuf. 8i rigfti ianttkm 
^flerfMn^easel eis> L^es R^^ni sul mulare iUe posset, ToflSq;^ guoque 
et ottt^ra Onerai ek imponere ipa^s inconsmltls, quale ^Po^winlum, 4e- 
iHllanl L^pes CiTile^i^ cum dicant» - '' Quoii Fnncipi placwt Legis ha* 
M ff^fvfvifi*" 8ed long^ aliter potest B^ politick imperans Genti 
iMvqtda neo liCfeB ipse sbie Subditomm Aaaensu nmtare poterit^ 
nea SulgeiAutn Populom renitentem operate Impositionibus peregii- 
nja^ quave Pq^ua i^us libera ftuetur Bonis suis, Legibus quas cupit 
B^|;M^tli9» Dec per Begem suum, aut quemvis alium d^ilatur ; con- 
siiiujiit^ tamep plaudit Pq»ulu8> siib B^ Regaliter tantum piind* 
pante^ dKunmodp iy^ in Tyrannidem ,non labatur. De quali Bcge 
djcit PlnkBophus III. Politico^roy '^ Quod meUus est CivHatem r^ 
Vitb Optimo, qudm Lege optimd" 8ed quia non semper contingit Pre* 
sidentem Populo hujusmodi esse virum^ Sanctus Thomas in Libro 

2g2 



4<52 NOTES. 

qvan R^ Cjpii Mripnl, ie Rtgimkie Frhicipim, opUie oenaeliir^ 
tiepxam tic iaaidtai, ut Rex noo Hber^ vskftt Populum Tymraide 
gnbenniC!, quod ■olmn fit, dam potwtas R^gia L^ PdidcA edu* 
betur: Gande igitiir> J P f wc ipi opHme, takm em Le^jem Begni in 
qao Tu wMiui w iUM et, qam et Tibi, et Popnlo, ipn Seauitotcm 
pnetlabit noo miniimin et ■ohmen. Tali L^|^ at dicit idem Stmcm 
tutf Kgoktam Aumet lotnm Geniu himuaram, li in Fteadiao Bd 
Iftndinim non prsteriiaMti ttli etiam hogs n^bator Bjimtsofft, 
dmn sub lolo Deo Rcge, qui earn in Rqgmmi peepliioe adoptabat; 
iOa miHtabat : aed demwn €jfam Petitionee Rige Homine sibi comrti- 
tato, anb Lege tantnm Rcgali ipm deino^ bnmiUata eat Sob qnft 
tamen dmn qptimi Regea aibl fmtoamkt, ipm pbrasity et dum Dia* 
eoM ei pneemeban^ ipm inconaolabiHter Ingebat, nt Regnm Liber 
hse diatinctina mani&atant. Tamen quia de Materia iat& in Opni- 
colo, quod Tni oontemplatlone de Naiurd l^egU NaiurpB ezaimvi, a«ifi» 
p^Dter pato me demeptaam^ plna inde loqni jam deaiato. 



TRAN8LATI0K* 

* • » 

Tbe next thing, my Prince> at which you aeem to heaitate^ ahaU, 
with the mme eaae^ be removed and anawered ; that is, whether yoa 
ought to apply youraelf to the atudy of the iaws of Englamd, or to 
that of the civil laws; for that the opinion iawith them every where 
in pifeference to all other human lawa. Let not thia difficulty^ Sir, 
give you any concern. A Idng^ of Bng^d cannot, at hia pleaaure^ 
make any alterationa in the liCwa of the knd, for the natnieof hia go« 
▼ertunent ia not only regal but poKHeaL Had it been merely r^d, 
he wouM faa^ a power to mdce what innovationa and alterationa he 
fileaa^ in the laws of the kingdom, impoae IViOifftff and other haird- 
diipi^upMi thie people whether they would or no/ without iheir omh 
(Bent ; wlrich amrt of goyemmeiBt ttie diil lawa point on|^ when th^ 
d.edae;'Qjuod frineyn fiacmt le^ habelwgorem: But it ia mudb 
dtherwia^ with a king whoae ^yemmeilt ia poUHcal, beoauae heean 
neither make any alteration ttor-change in the lawa of the reofan widiout 
the conaent of the aulijeet, nor burthen them agamat their willa widi 
strange impositions, ao that a people governed by auoh lawa aa are 
niade by their own conaent and approbation, enjoy their proportfica 
aecurely, and without the haaard of being deprived of them, cither 
by tibe king or any other : The aame thinga may be effected nnddr an 
absolute prince, provided he do not degenerate into tiie tgvwni* Qf 
such a piinoe Aristotle, in the 3d of Ua Politics, says, '' It is bettor 
for a dty to be governed by a good man, than by good laws." But 



NOTES. 453 

bedraiie it ddes nel dimys bftppett that the pier^ 
pieisa&^fciilified^ St llcmias^ in die book wliidi he writ to the king 
oi Cfffta, (De R^mine Ftindpfom,) wishes that « kingdom coviA 
be eo iilstituted^ as that llie king mi^t not be at liberty to t^rrannise 
over Ids people ; whidi only cxMUes to pass in the present casa; that 
is, 'When the soverdgn power is restndned by poltticai lawn. Kis- 
joiee> therefore^ my good Pnnce> that sneh is the law of that kingdom 
which you are to inliferit^ because it will a£Rxrd both to yourself and 
subjects the greatest security and satis&ction. With such a law, 
saith the same St. Thomas, all mankind would have been governed, if 
in Paradise they had not trani^essed the command of God. With 
the same was the whole nation of the Jews goyemed under the 
Theocracjf, when Gk>d was tlftir king^ who adopted them I6r his pe- 
€i4iar people : Till at length, upon their own request, having obtaiU'- 
ed another sort of king, they soon foimd reason to repent them of 
their foolish and rash choifie, and were aufficiently humUed under 
j^^edfxolur government: But when they had good kings^ as some there 
were, the people prospered, and lived at ease; but when they were 
otherwise, their condition was both wretched and without redressL 
Of* this you may see a particular account in the Book of the Kii^. 
Thil fettligect bdng sufficiently discussed in a small piece I formerly 
drew up on purpose for your ttse> oonoemii^ the I^iw of Natuie: 
So I shall forbear at present to enlarge* 



CAP. XVIIL 

Statuta tuiic Anglomm bona sint necnei solum roitat ei^l<vandimi; 
Non enim emanant ilia a prindpis soliltan vduntate, ut leges in Re^* 
nia qu» tantum Regaliter gnbemantnr, ubi quandoque Statuta ita 
GonstittteBtis procurant commodum singulare, quod in ejus subdito* 
ram ipsa redundant Dispendium et Jaetmram : Quandoque etkffi In* 
advertentia Prindpnm hi^usmodi, et sibi oonsulentium inertia, ipsa 
tarn inooDsult^ eduntor, quod corruptcAarum nomina, potius quto 
l^ism, ilia merentor. Sed non sic Aagiue statute oriri possunt, dam 
ne4um PrinejipiM vokmhiey $ed et ioHus regni auemu, ipsa ocMiduntur, 
quo populi Lesuram ilia effieere nequeimt, vd nen eorum commodum 
procnrare. Fnident]4 etiam et sayeatift neoessario ipsa esse referta 
putandum est,.dam non unius^ aut centum soliim eonsultorum viro* 
rum prudenti&, sed plusqnam treoentoran dectoram hon^nm, quifli 
ninnero olim Senatus Romanorum r^batur, ipsa edita sunt, ut ii, 
qui Parliament! Anglitt Formam, CSonvocationis quoque ejus ordinem 

2g3 



454 KOTES. 

hmo tai^ti^,8Qle«uut4te et pmdinitf^ ^U^ efficacue tanU?« quante ooii- 
^itorapi fapiielM|t inteptiflb neocene oontii^aiity coadtar^Qnwp ip«s 
pmiuit: et nan tine ooiiiimv4ti^ et prooenim mgni ilUnsi^aBeBw, 
^m^ ^pia primitus enananuit. Patent igUur jan^ tibii Fnmce^ Ie« 
gqfi Anglorum spedei omnes.. , Eanin^ quoqiie qualitatesi li^ si hoam 
jpne sint, metiri tu poteris prudently tuiy oomparf^lioi^ etiam a}UH 
rum ]iQgum> et cum Bullam tantie pnestantiie in orb^ rq^eries^ eftA n^r 
dum bonas, aed tibi QptabilJasimas^ fore, neoeaaano oonfiteberia. 

TEAKSLAtlOK. 

It only lemaina to be iDquiied^ wkeiher the siahtU law of. Si^knd 
lie good or not Anda8tol2iat» itdoesnotflowaoldyfvovitlienen 
wiU of one man^ aa the Una do in tfaoae eoanUiea which are gavenied 
in a despotic manner ; where aonethnea the natux« of the conatitttticMi 
Ml much regarda the aing^ cenvenieBce of the kgialatar> wl^stiby 
thflie accnwa a great diaadvanta^ and dispang^ment to the aubjeot. 
Sometimai alao^ through the inadvertency of the prince hii inaoti- 
fity and love of eaae, anoh Imrs are unadviaedly made aa may better 
deaenne to be affiled conniptictDs tiban laws. But the statutea of Bng- 
land.ave produced in quite another manner: Not enacted by the aele 
will of the prince, but with the concurrent odnaent of the whole king- 
dom by their representatives in parliament. So that it is morally 
impossible but that they are and must be calculated for the good of 
the people : and they must needs be Ml of wisdom and prudence, 
since they are the result not of one man's wisdom only, or an hundred, 
l^t sHch an asacmUy aa tbe Aoman aenale waa of old, more liban 
jhrqe (lundred select persona; aa those who are oonvenant in the 
forma and method of fifmon^oning lihem to parliament, can more di»- 
tinctly infonn you* And if any biUa passed into a law, enacted with 
aon^uch solemiuty andiforeaig^t, slywdd happen not to answer the in^ 
.tentioa of the l^gLdatoia, tb^ can be imiBedJately unMBtwiiM^ and i»- 
pealed^in the whole or In pair^ ihat is, with the aame conaeBt, and in 
thi? same manner>aB they woe at fizst enacted into a law. Ihavethus 
kpd before yxm, my Prince,, ereiy apeciea of the hnr»of Cagkoid. You 
wi)i of yourself eadly i^pn^mid their nature, whether they be gari 
pr not» by comparing them with other kwa: And wIkh yon willfind 
none to stand in competition with them, yon noat adEuowledge then 
to be not only good lawii, bHt andb, in a4 reapeotat, aa yoo yo^onelf 
could not wish tbem to be bett^. 

5 



NOTES. 4^^ 



CAP. XXII. 

Non igitwp oontenta est lex Fira$u!UB in crinumllliRu, itln mom te- 
minet ream testibos orniyineese^ ne faLndicorum tastimanio fn^ngm^ 
imiocens oondemnetmr« Sed mamlt ler ilia leos take iorturis cnioiilei^ 
^ousque ipffl eorom reatusi confiteantiity qn&m testiom ^ieporiihme, 
qtd aepe ptunsfoiiil^ iniquis^ el quandoque Bab<»aiatioiie ntalonimj ftd 
peijmia stimulaiitar. QuaU eautioiKe et aatattd^ erlmmori letiam tt 
de criminibus suiBpecti tot torturamm in r^^no iHo geneiilnaaffllgiiiHi. 
tur, quod fastidit calamus ea Uteris designare.— -The author contioMi 
in a strain of the utmost abhorrence against such a practice, and de- 
picts the revolting lengths to M'hicli it yrz^ carried in France. He is 
the more vehement, probably from an attempt which had been made 
in that reign (H. VI.) to introduce the radc into En^andr^ftoi in« 
stance of which, with Uie detestable oonsequenoes, he aUudes to. Is 
Ch. 95-33, he givite a full account «f the trial by Jury, and il8.be<i 
neficial consequences ; while he shews- dutt, from {h* want «f « xoaidie 
rank in France, it could not be piaolised Ifaeie.' 

J 

TRANSLATIOK. 

For this reason the laws of France, in capital mseB^^o not ^hink' 
it enough to convict the accused by evidence, lest the uinoeent 
should thereby be condemned ; but they dioose rather to put the aiM 
cused themselves to the rad:, till they confess their guilt, thlai 
rely entirely on the deposition of witnesses, who, very ofben ftom ukn 
reasonable prejudice and passion, sometimes at the ins^;ation of 
wicked men, are suborned, and so become guilty of peijury. By 
which over cautious and inhuman stretch of poliey> the suspected, a* 
well as the really guilty, are, in that Mi^om, tcMured in so many 
ways, as is too tedious and bad for description.—- «« 

CAP. xx;xiiL 

 • 

iVtiBM|)tff<-rVideo, iaquit et eas inter totius orbis jura (in casa, quo 
la jam sndasti) prsfiilgere eonsidcpro, tauten prc^nitorum meorum 
J^JDlg|m ^wm quosd^m ^m^ivimus, in l^bus sois minimi delect^ 
toa, wie^etU^sproinde Leges piviles odAngUw Regimen inducere, et 
p^trias l^ges r^piidi^re fuisie oom^tos : hqrum reverb GonaiUvuia yehe« 
wmtex itdiniror. 



456 NOTES. 



TEAKALATXOK. 

PrinM^ I tm cdufinefld that die law* of Eogliad eBaiacntly exed 
iMyondtfaekWBofldlodieroGmtrieBintlieeaaeyoa ha^e been now 
fiifeitoniiiig to explain ; and yet I hare bend diat some of my anoea- 
toiVj kiuga of fing^d, bavebeea so fiurfimn being pleesed with thoee 
lairii tltat tbey have been indnaCriociB to introdnee and make the dm 
vil lawa a part of the ooDftitafekm, in prgodioe of the common law : 
tUa BMikeame wmider what they eouild intend or be at l^ sudi be* 



CAP. XXXV. 

SenuMlmie, prinoeps divine^ qiiaUter vilhM et oppida Eegni Fnm* 
cue fhigmn opnktitiaBimai^ dun ibidem pei^grinabarisy conq^existi^ 
TCgis teme iUxiia faomiiiibiiB ad anna et eoram equia ite (miista» «t 
mki eotnm .aMqni)raa qnam;magnis ot^idia ta boi^taii valebaa ; 
ubi ab incolia didiciati^ homiiiea iUoa, lieet in yiila ima per maiaem. 
aut duoa perhendinaverint, nihil proraua pro ania aut eqnorum aaonun 
expenaia aolviaae^ aut aolvere velle ; aed^ quod pejua eat^ arctabant 
inoolaa villamm et oppidoram, hi que deacenderant^ dbi de nnia, 
oa«iAiia»)et4l3Ub qulbua indigebant, etiam caiioribaa neceaaariia qodm 
il» xiq^ehf|i1^9 a- circumvidnia Tillatia^ auia propriia amnptibua 
pravidere. £t ai qui aio ft^cere rennebant, condto fuetibna ceai pro« 
part hoc i^gire coippeDebay tur ; acdemum conaumptia in yill4 un& 
Wtufklibwaj fooalibi^aj et i^quoram pnabendia^ ad villam aliam hominea 
illi .properabanty posy conaimiliter devaatando, nee denarium unum 
pro alaquibua neoeaaariia aiufli» ^tiam aut concubinamm auanim^ 
qnaain magn& oopia aecnm aemper vehebanty vd pro aotularibos^ 
cali§if^.<^ aliis bujuapnodi^ uaqne ad minimam eanim llgulam solve- 
runt, aed aingulaa auaa^quakacanqne expenaaa halHtatorea villamm^ 
ubi moraa feoerunt, aolyere coegerunt Sicque et factum eat in omni- 
bua villia et oppidia non murada totiua regionia illiua, ut non ait ibi 
villula una expera de calamitate iatS^ que lion aemel aut bia in anno, 
hac nephanda preaaura depiletur. Pneterea non patitur Rex quen- 
quatn Re^i aui adem edere, qUeni non emat ab ipao R^, pretio, 
^ua aoliim arbitrio, aaaeaao. £t ai inaulaum pauper quivia mavult 
edere, quam aalem exceasiyo pretio comparare, mox compeUksr ille> 
tautum de aalie Regia ad ejua pretium emere, quantum eongruet tot 
peraotiia quot ipae in domo anH'foyet. Inauper omUea R^gni Ohua 
incolie dant> omni anno, Regi auo quartam partem wnnium vinorum 



qtle sibi Accrescunt ; et omnis caupo quartum denarium pretii vi- 
n<Nruin> qus ipse Tendit; et ultra hiec^ omnes viUse et buirgi. solvent 
ftegi afinuattin ingentes summas super eds asseasas prd stipendiis 
bominum ad arma ; sic quod armata r^^is, que qu^m magna sempeir 
cst^ pascatur annuatim de stipendilB 8ui8> per paupevea ▼illaram^ 
burgorum et dyitatum r^ni. St ultra hec, quselibet villa semper 
sustinet sagittarios duos ad minus^ et alique plures in omni apparatus 
et abilimentis suffidentibiia ad serviendnm regi in guerris suis, 
quoties sibi libet eos summonere^ quod et crebrofacit; ac iisnon 
ponderatis maxima TuUagia alia sunt omni anno assessa ad (^us r^;is^ 
super quMuHbet' villam ejusdem r^gni^ de quibus non uno anno ipsi 
alleviuitur. Hiis et nonnullis aliis cakmitatibus plebs ilia lacessita 
in miseria noti minimi vivit, ^uam.quotidie bibit, nee alium^ nisi in 
fiolemnlbus feitisy plebdi gustant liqumrem. Frocda sive caUobitis de 
canabo ad modum panni saccorum teguntur. Panno de land, pre- 
terquam .de vlHssinui^ et boc wcAxaxk m tunidb suis subtos Fraeoas 
illas^ non utuntur^ neque oaligis nisi ad genua disoooperto residua 
tibiarum. Mulieres eorum nodipedes sunt, exceptia di^bus festis ; 
cames non coniedmit> maret ant foeminee ibidem preter lardum ba« 
conis^ quo .impu^;uant pubpentaria sua in minimi quantitate. 
Camea aasatas ooctasve alias ipd non gustant, pnet^rquam interdum 
de iBtestinis.et capitibus animalium pro nobilibus et mereatoiibttB 
ocdsorum. Sed gentes ad arma oomedimt alitUia sua^ ita ut vix ova 
eorum ^^ xelinquantury pro summia vesoenda delieiis. £t si quid 
in opUras eis aliquando acereTerity quo locuplea eorum aliquis r^^« 
tetUT* condto ipse ad regis subsidittm fdus vicinis suis ceteris mie- 
rator^ quo extunc convidnis ceteris ipse equabitur paupertate. Hec 
ni falkxr^ lioEma eststatfis gentis plebane r^bnis illius, nobiles tamen 
non sic exactionibus opprimuntur. Sed si eorum aliquis calumniattts 
luerit de crimine^ licet per inimicos suos^ non semper coram judice 
ordinario ipse convooari solet: sed quam sepe in r^;i8 camerlk^ et 
a^bi in privato loco, quandoque vero solum per internuncios, ipse 
inde aHoqui visus lest, et mox ut criminosum eum piindpb consden* 
tia, idata aliorum judicaverit, in sacco podtus, absque figura judidi, 
per prepositi Mariaeallomm ministros noctanter in flumine projectus 
tidfmergUur, qualiter et mori audivisti mi\}orem multo numerum bo- 
minum, quam qui l^timo processu juris convicti extiterunt. Sed 
tamen, quod prindpi placuit (juxta leges dviles) legis babet yigorem. 
Etiam et alia muirmia biis similia, ac quedam biis deteriora, dum in 
Frauds, et prope regnum illud convexsatus es, audisti, non alio, 
qu4m l^s illius, colore, detestabiliter, damnabiliterque perpetrata, 
que bic inserere, nostrum nimium dialogura protelaret. Quare, 



4^8 NOT£a« 

quid effeeCus I^m poUticft et regalis^ qiiam qaidiim progeDUotum 
tttonun pro leg^ hie eiyili ooromutare nisi sunt^ op^ratus ^t in rqgno 
Augliie, a modo visiteBiiiay ut uliraqne l^^um eiqpevj«nti4 dpctns, q^m 
fmmm iihi eligibilior sit^ ex earum effecUlnui elicere v^m^ cum (ul 
«(uprii luemqfatwr) dieal pbilo0Qp)iU6>, qudd> '^ Opposita^u^ se ponta, 
nuigis appturtf^r* 

9 

« * 

TBAKSLATION. 

You may remembei'^ moeit worthy Pkinee^ in what a eonditioB you 
obseired the villages and towns of France to he, during iho time you 
sojourned there. Though Ihey were well su^^Uied wl& aU tbe iruits 
of the earth, yet they were so mueh oppressed by the king^e troops, 
and their horses, that you eouM scarce be aecommodated in your 
travels, not even in the great towns. Where, as you were inibrmed 
by the inhabitants, the soldiers, thou^ quartered in the same village 
a month or two, yet they "neither i&di nor Woidd pay any thing for 
themselves or horses; and, what is stSI-wiMfse, the inhabitants of the 
villages and towns where they came, were forced to provide for them 
gratis, wines, flesh, and whatever else ti^ had occasion ftr; and if 
Ihey did not like whlM( they found, the inhalxitants wcfe obi^ed to 
supply them vnth better from the neighbouring "rijlagea. Upon any 
non-complianee, the soldiers treated Ihem at such a barbarous rate, 
that they were ^uicldy necessitated to fsniaif them. Wheu previ- 
sions, fuel, and horse-meat, fell short in one village, ihey mardied 
away full speed to the next, wasting it In like manneiv They usurp 
and daim the same prinl^e and custom not' to pay a penny for ne- 
eessaries, dther for themselves or wemen, (whom they always carry 
with them in great numbers,) such as shoes, stockist, andnther wear«i 
ing apparel, evai to the smallest trifle of a lace or point ; all the kihalnt- 
ants, wherever the soldiers quarter, are liable to this oruel oppmsive 
treatment: It is the seme throughout all the villages and towns in 
the kingdom whieh are not walled. There is not any, the leaat idl« 
lage, hut what ig exposed to the calamity, and, pnoe or twice in the 
year, is sure to be ^undered in Ais vexatious manner. Fnvtiiert ^^ 
king of France does liot permit any one to use isalt but what is bought 
of himself, at his own arbitrary price ; and, if any poor person would 
rather choose to eat his meat without salt, than to buy it at such an 
exorbitant dear rate, he is, notwithstanding, eompellaUe to piovide 
himself with salt, upon the terms aforesaid, proportionably to what 
shall be adjudged.sufficient to subsist the number of persons he has in 
his family. Besides all this, the inhabitants of France give ev^ year 



NOTES. 459 

to tborking the fmaH^ part of all their wlaes^ the -growth of that 
year ; iEsveaty vintner gives the fourth penny of what he makes of his 
wines hysale. And att the towns and boraaghs pay to the king 
yeutkf, great sums of money, which are asseBsed upon them for the 
espeuses of his men at arms. So that the king's troops, whieh are 
always oonddenMe, are subsisted and paid yearly by those ocnmnon 
people who live in tiie vfllagesy Ixnomg^ and cities. Another grie- 
va&oe i% evwry village constantly finds and maintains two cnNNhbow- 
men at die least; aqme find more, wellanayed in all their accoutre- 
ments;, to serve the king in his wars, asoftdn as he pkaseth to call 
them oak, whidb k Hrequently done. Witihout iaay oonsideratum had 
of tliese ddngs, &her very heavy taaces are assessed yearly upon every 
village within the kingdom for the king's service; neither is tiiere 
ever any intermission or abatement of taxed. Exposed to these and 
other calamities, the peiAsants live in great hiodship and misery; Their 
constant drink is water, 'neither do they taste throv^hout the year 
any other liquor, tmkss upon some extraordinary times or' fostival 
days. Their dothing consists of frodcs, or little short jerkins, ma^ 
of canvass, no better than common sadkdoth; they do not wear any 
woollens except of the coarsest sort, and that only in the garment un« 
der their frocks ; nor do they wear any. trouse, but from the knees 
upwards, their legs being exposed and naked. The women go bare- 
fool, except on holidayis ; they do not eat flei^, unless it be the fat of 
haoon, and that in very small quantities, with which tiiey make a 
soup ; of other sorts, either boiled or roasted, they do not so much as 
ta8te> unless it be of the inwards and offids of sheep and bullocks, and 
the like, wluch are killed for the use of the better sort of peo» 
pie, amd the merchants; for whom also quails, partridges, hares, 
and the lik^ are rsserted, upcm pain of the gaUies : as for their poul-^ 
try, .the soldiers eonewne them, so that scarce the eggs, sl^ht as they 
are, are indulged them by way of a dainty; ' And if it happen that a 
man is observed to thrive in the world, tfullbeeome ridi, he is pre** 
sently assessed to theldng^s tax pn^rtionahtf mdre than his poorer 
neighbours, whereby he is soon reduced >te 1 kvel with the rest. 
This, or I an very much mistaken, is the present state .and condition 
of the peasantiy of f^anoe. The nobility and gentry are not so much 
burdiened wiUi. taxes; but if any one of them be impeached for a 
state crime, though by his-known enemy, it is not usual to convene 
him before the ordinary ju^, but he is very often examined in the 
kiqg's own apartment, or some such private place ; sometimes only 
by the king's pursuivants and messengers : as soon as the king, upon 
sodi informatiOD, dball adjudge him to be guilty, he is never more 



460 NOTES. 

heaid of, but inimediatdy> without any formal prooetfl^ the penon lo 
accused and adjudged gi:dlt7, ia put into a sack, and by ni^t thxown 
into the river by the offioen of the provost manhal, and there drown- 
ed : In which somnrary way you have heard of more put to death 
than by any legal process. But stilly aceordinig to the civil law, • 
*' what pleases the prince has the ei^ of a law." Other things of a 
like irregular nature, or even worse, are well known to you> during 
your abode in France, and the adjacent countries, acted iu the moat 
detestable barbarous manner, under.no ookmr or pretext of law than 
what I have already declared. To be particular would draw out our 
discourse into too great a length. Now it remains.to consider what- 
eflfect that poUtiad mused gtwemment, which prevaila in Eo^^and has 
whidi some of your progenitors have endeavoured to ahrogpMe^ and 
instead thereof to introdujoe thfe civil law ; that, ftom the consideiii- 
tion of both, you may certainly determine with yourself which is the 
more eligilde, since (aa is above mentioned) the philosopher says, 
<' That opposites laid one by the other do more certainly appear ;*' 
or, as more to our present argument, ^'Happinesses by their contraries 
are best illustrated." 

CAP. XXXVI* 

In r^;no Anglic nullus perhendinat in alterius domo invito domi- 
no, si non in ho^iiis publids, ubi tunc pro omnibus^ que ibidem 
expendit, ipse plenarie solvet, ante ejus abinde.recessum ; necimpune 
quisque bona alterius capit sine volimtate proprietarii ecrundem, ne- 
que in R^gno illo prspeditur aliquis sibi de sale, aut quibuacunque 
merdmoniis aliis ad proj^um arbitrium, et de quocunque venditqie, 
providere. Rex tamen necessaria domus sue, per rationabilepcetinm. 
juxta constabulariorum villarum discretiones assidendum, invitis pos- 
sessoribus, per offidaxios suos capere potest : sed nihilominns pretium 
illud in manibus, vel ud diem per migores officiarioa domOs suae li- 
mitandum, solvere per ^ges suas obnoxiua est; quia nullius subdito* 
rum suorum bona juxta l^^es illas ipse deripere potest sipe satisfao* 
tione debits pro eisdem. Neque Rex ibidem, per se, aut miniatros 
8U06 TaUagia subsidia aut quaevis onera alia, impOnit legiis suis, ant 
l^;es eorum mutat, vel novas condit, sine conoessione, vel asseoau to- 
this regni sui, in parliamento suo expresso. Q'uue incola omnia reg* 
ni illius, fructubus quos aibi parit terra sua et quoe gignit pecua ^us, 
emolumentis quoque omnibus, que Industrie propria vel alienli, ipse 
terr& marique lucratur, ad libitum ]^rq[irium utitur, nullius prepedi«« 
tus injuria vel rapinii, quin ad minus inde debitas oonsequitur emeu- 



NOTES. 461 

das; unde inhabitantes terrain illam locuplelesmint, abundantesauro 
et argento^ et canctis neoessariis 'vitie. Aquam ipsi noti bibimt^ mai 
quod ob derotionis et pcenitentifle zdum aliquando ab aliis potabus se 
afartiiiety omni genere camhim et piscium ipsi in oo|^^ veseuntur^ qni- 
bus pttiria ilia non modioe est referta^ Pannis de lanis bonis ipsi in- 
duvmtor in omnibus operimentis snis^ etiam abundant in lectist^miis^ 
«t qudlibet «iq>eUectiii <ini lana oongruit, in omnibus domibus suis^ 
.necnon opuknti ipei sunt in omnibus hustilimentis domus, neceasa- 
xjii cultune et ommbns qm ad quietam et fdicem vitam eadguntoTy 
fleeundum status suob. Nee in placttum ^si ducuntor nisi' coram ju« 
tdiiBibus ofdinanitf^ ubi illi p^ leges terre juste tractantur. Nee alk- 
euti sive impladtati sunt de mobllibus aut possessionibus wo»f vel ar- 
zettati de cnnuni aliquo qualitercunque magno et enormia nisi seeun* 
duml«geilerT«e Alius etooramjudictbusantedietis. Bthiisuntlruc- 
tttSj quos porit regimen politieura et regate: Ex quibus tibi jamappa* 
.rent expeiientife effectus Icgis^ quam quidam prqgenitorum tuorum 
oltfioere conati sunt. Superius quoque tibi apparent effectus t^gis aL- 
.terittSy quam tanto zelo^ loco legis istiius^ ipsi nisi sunt inducere> ut ex 
fructibus earum tu agnoecas eas. Et nonne amlntio^ luxus et libido^ 
quos. prsedicti progenitores tui Teffd bono preferebant^ eos ad hoc 
commercium concitabant? Ck>n8idera igitur^ Prineeps optimcj et jam 
alia quff sequentur* 

TAAMSLA.TIOK. 

In England^ no one takes up bis abode in lUiother man's house with- 
out leave of the owner first had, unless it be in public inns, and there 
he is obliged to discharge his reckoning, and make full satis&ction for 
what accommodation he hjM had, ere he be' permitted to depart. Nd- 
ther is it lawful to take away another man's goods without the c<m- 
sent, of the pro^etoi*, or being liable to be called to an account for it. 
No nuin is concluded, but that he may provide himself with salt, 
and other necessaries for his family, when, how, and where, he pleases. 
Indeed, the king, by his purveyors, may take for his own use necessa- 
ries for his household, in a reasonable price, to be assessed at the dis- 
cretion of the constables of the place, whether the owners will or 
not ; but the king is obliged by the laws to make present pay- 
ment, or at a day to be fixed by the great ofiicers of the king's 
household. The king can't despoil the subject without making 
ample satisfaction for the same ; he can*t by himself or his minis- 
try lay taxes, subsidies, or any imposition of what kind soever 
tipon the subject ; he can't alter the laws, or make new ones, 
without the express consent of the whole kingdom in parliament 
assembled : Every inhabitant is at liberty fully to use and enjoy 



462 NOTES. 

vAuAertt his ftrm prodnoeth^ the finiits of the earthy the increise of 
his fiookj and the like: all the im]^Yemeiita he makes, whether by 
his own proper industry, or of those he retains in his service, are hb 
owti, to use and enjoy without the lett, intenmption» ov denial of any 
Okie : if he be in any ways injured or oppressed, he shall hate his 
amends and satisfiielion against the party offending : henoe it is that 
the inhal»tenU are rieh in gold, silver, and in all die necessaries and 
eonteniendes of life. They drink no water, unless at certain times, 
upon a religious sooie, and by way of doing penance. They are M, 
in great abundance, with all sorto of flesh and fi^, of which they have 
plenty every whefe ; they are clothed duoughout in good woollens ; 
^efar bedding and other furniture in thdr houses ate of wool, and 
that in great Bt6re« They are also well provided with idl oAer sorts 
of hdusehold ^oods and necessary implements Ibr husbandry : every 
une, according to his rank, hath all things whidi conduce ia make 
life easy ated happy. They are not sued at law but befcJre the eidi- 
liary judge, where they are treated with mercy and justice according 
to the laws of the land : neither are they impleaded in point of pro- 
perty, or arraigned fbr any capital crime, how heinous sbever, but be- 
fore the king's judges, and according to the laws of the land. These 
are the advantages consequent ftom that political miiced government 
which obtains in England. From hence it is plain what the effects 
of that law are in practice, which some of your ancestors, kings of 
England, have endeavoured to abrogate : the effects of that other law 
Me lio less apparent^ whidi they so xealoudy endeavoured to mtro- 
duce among us^ so that you may easily distinguish them by their 
cotoparative advantages* What, then, could induce those kings to 
endeavour such an alteration, but only amintion, luxury, and impo^ 
tenfrpassion, which they prefenred to the £0od of the state? You will 
please to consider, in the next place, my good Prince, some other mat* 
tors which will follow to be treated of. 

' N. B. — The St. Thomas to whom the author s6 often alludes, was 
the famous Thomas Aquinas, a friar of the Dominican order, bom 
A. D. 122i — a fact which proves that men in other countrito knew 
even then what franchises belonged to the people. 



NOTES. 463 



ExlracUfrom Fortescfie*s Work in English, entitled'. The difference 
between Dbminium Regale and Dominium Politicum et Re- 
gale. 

CHAP. II. 

*^ IVrv one King reynith RegaUt^r ton^m/and anoiher reynith iV- 
UHce et Regaiiter* 

** Hyt May pef aventure be mairvelid by some meti^ why one Realme 
i8 a Ziorddiyp duly Roy all, and ^e Prynce thereof truly th yt by 1^ 
law, Called Jti^ Regale; and anotller kyngdome is a Lordflchlp^ Ro^ 
and Pdiiike, and the IMnce thereof rillyth by a LaWe, callyd Jwi Pa*- 
IHicum and Regaie; syihen thes two Prittdes beth of egall astate. 

** To this dowte it may be answered in this manner : The fbhst Insti- 
tution of thea twoo Reaknys, upoin the Intiotpoliition of them is the 
catise Of this diversy te. 

*' Whan Nembrath by mi^; f<«r his Own Gbrye^ made and inoorpo*- 
rate the first Reahne^ and snbdttyd it to himself by Tyranhiei, he wtmM 
not have it govemyd by any other Rule or Lawe, but by his oWn Will ; 
by which and fbr the accomplishment lihereof he made it. And^ ihe*- 
for, though he had thus made a Realme, holy Scripture denyjr^ tocal 
hym a Kyng, Quia Rex diciiur a Regendo : Whych thyng he dyd n6t, 
but oppressyd the people by myght, and therfor he was a Tyrant, and 
called primus Tyrannorum. But holy writ callith hym Robustus 
Venator coram Deo. For as the Hunter takyth the wyld beste for to 
scle and eate hym^ so Nefnbrotk subdnyd to him the People with 
might, to have their service and their goods nshig upon them the 
Lotdsdbip that is oaUed Dominium Regale tmtnm* After hym Belus 
that was called first a Kyng, and after hym his sone Nynui, and after 
hym other Panyms; they^ by examf^ of Nembrotik, made theih 
Realmys, would not have them rulyd by other. Lawys than by their 
own wills. Which Lawys ben right good under good princes, and 
-iheir Kyi^oms are then most resemblyd to the Kyngdome of God 
which reynith upon man, mlyng him by hys own will. Wherfor 
many Crystyn Princes uaen the same Lawe ; and therfor it is, that 
the Lawys sayen. Quod Frineipi fXacuit Legie habet vigorem. And 
thus I siqipose first b^anne in Realmys^ Dominium tantum Rqgaie. 
But afterward, when mankynd was more mansuete, and better dis- 
posyd to vertue, Crete communalties, as was the Feleship that came 
into this Lond with Brute, wyllyng to be unyed, and made a Body 
Politike caUid a Realme, havyng an Heed to governe it ; as after the 



464 NOTES. 

saying of the Philosopher^ every Communaltie unyed of many parts 
must needs have an Heed : than they chose the same Brute to be their 
Heed and Kyng. And they and he upon this Incorporation and In« 
atittttion^ and onyng * of themself into a Reahne, ordenyd the same 
Reafane so to be nilyd and justyfyd by such kwys^ as they al would 
assent unto, which Law therfor is called PolUicum ; and bycause it 
is mynystied by a kyng, it is called Regale, Dominium PoUHeum 
diciiur qiuui regimen, plurium icientia stpe Consilio mmisiraimHm 
The Kyng of Sc9tii reynith upon his people by this Lawe« videlicet, 
Regimine Politico et Regali, And as Diodorus Syathu saith^ in his 
Bofce de priscis histoids. The Realme of Egypte is rplid by the same 
Lawe, and therfor the Kyng therof chaiigeth not his Lawes, without the 
assent of hb people. And in like forme as he saith is ruled theKys^- 
dome of Saba, in Fdici Arabia, and the liond of Libie : And alfo the 
more parte of al the Bealmys in J^jfrike. IVhidi miMuierof Rule and 
Loidship the said Diodorut .in that Bokoj praysith gretely* For it is 
not only good for the Prince^ that may thereby the more sewerly do 
Justice, than by his own Arbitriment; but it is also good for his peo- 
^.tl^t xeoeyve thereby, such Justice as they desyer themself. Now 
98 n^ semyth, it ys shewyd opinly ynau^, why (me Kyi^ ruljth and 
■leyi^ijfch on his People Dominio tantwn Regali, and that other reynith 
JJiominio PMico et lUgaU ; For that one Kyngdome beganne, of and 
•by, the Might of the Prince, and that other beganne, by the Deuer 
and Institution of the People of the same Priuo^.** 

CHAP. III. 

** HereaHtor beschewyd^ ihe Frutes of Jiaiiiya^, and theFnite»of 
Jus Politicum et Regak* 

^ And hou so be it, that the Fraidi Kyng reynith upon his people 
Dominio RcgaU ; Yet Saynt Lewes sumtyme Kyng ther, ne any of 
his Progeny tors set never Talys or other Inq^tions, upon the People 
of diat Lond, without the assent of the three Astatts, which whan 
thay be assemUid are like to the Court of Pariemoit in England, And 
thus order kept many of his successours until late days, that JSnglisI^ 
men made such a war in Frounce, that the three Estats durst not come 
to geden. And than for that cause, and for grete neeessite which the 
Frrach Kyng had of Goods, for the defence of that Lond, he took 
upon him to set Talys and other Impositions upon the Commons with- 
out the assent of the three Estats ; but yet he would not set any 
such chargs, nor hath set upon the Nobles, for foare of rebeUion. 

* Uniting 



NOTE& 



465 



And because the Commons^ though they have grutchid, have not 
rebelled^ or be hardy to rebell, the French Kyngs have yearly sythen, 
sett such chargs upon tbem^ and so augmented the same chargis, as 
the same Commons be so impoverished and destroyyd, that they may 
unnetb * lyve. Thay drynke water, they eate apples, virith Bredd right 
brown made of Rye. They eate no Flesche, but if it be selden, a 
litill Larde, or of the Entrails, or Heds of Bests sclayne for the Nobles 
and Merchaunts of the Lond. They weryn no Wollyn, but if it be 
a pore cote under their uttermost Garment, made of girete canvas, and 
cal it a frok. Thehr Hosyn be of^like Canvas, and passen not tlieir 
Knee ; wherfor they be gartrid, and theur Thyghs bare. Their Wifs 
and Children gone bare fote ; they may in none otherwyse lyve. For 
sum of them, that was wonte to pay to his Lord for his Tenement, 
which he hyrith by the Yere, a Scute, payyth now to the Kyng, 
over that Scute, five Skuts. Wher thrugh they be artyd by necessite, 
so to watch, labour, and grub in the ground, for their sustenaunce, 
that their nature is much wastid, and the Kynd of them brought 
to nowght. Thay gone crokyd, and are feble, not able to fyght, nor 
to defend the Realme; nor they have wepon, nor monye to buy 
them wepon withal ; but verely thay lyvyn in the most extreme Po« 
Tertie and Myserye, and yet thay dwellyn, in one, the most fertile 
Bealme of the World: wher thrugh the French Kyng hath not men 
of his own Realme« able to defend it, except his Nobles, which beryn 
.non such Impositions ; and therfor they are ryght likely of their Bo- 
dys, by which cause the said Kyng is compelled to make his armys, 
and Retennys for the defence of his land, of Straiingars, as Sgoth, Spa* 
niards, Arragtmariy Men of Almayn, and of other Nacions, els al his 
£nnymys might overrenne hym. For he hath no I)i£Pence of his own, 
ei^cept his Castells and Fortrasis. Loo this the frute of his Jus Re- 
gale. Yf the Realme of England, which is an He, and therefor may 
not lightly get Socoures of other Lands, were rulid under such a 
Lawe, and under such a Prince, it would be than a Pray to all other 
Nacions, that would conquer^, robbe, and devour yt; which was well 
prouvyd in the tyme of the Brytons, whan the Scotts and the Pyctes 
. sbbette and oppressyd this Lond, that the People therof soughte helpe 
of the Romayns, to whom they had byn Trybutorye. And whan 
they could not be defendyd by them, they sought helpe of the Duke 
of Brytayne^ then called Liiil Brytayne, and graunted therfor, to 
make his brother Constantine their Kyng. And so he was made Kyng 
lieere and raynyd many Yers, and his Children after hym, oft which 
grete Arthure was one of their Yssue. But blessed be God, tills 

* Scarcely. 
VOL. I. 2 H 



466 NOTES* 

Lonil k ruled under ft better Lftwe, and therfor At People liicnif l» 
not in such penurye, nor thereby hurt in Aeir Peiwms^ bntihfty be 
Weathye^ and hiiTe all thyngs necessarye, to the aasteminte of na» 
ture. Wherfor they be myghty, and aUe to resyrt ihe AdTenw^ 
of the Realme, and to bett other Realmes^ llkat do or will do tiien 
wrong. Loo this ia the Fratfc of Jus Pdtticum et Btgak^ under 
which we ly ve. Sumwhat now I hare gche w yd you of the PhityB of 
both Lawys^ Ut ex fhictlbua eomm cognoscatla eos, ftc.'* 

We might give other passages, and x«rticnlarly Chapter X. but ytn 
conceive that we have ahfeady sufficiently estabfislied tlie statement 
in the tex^ 

Comines gives the same description of ihe tyranny in other couh 
tries^ particularly in France ; and while his account of the railitaiy 
quartered on the inhabitants folly corresponds with that of Forteseue^ 
in other respects he says— '^ Car Hs ne se contentent point de la vie or>- 
dinaire, et de ce qu'ils trouvent c1ie2 lelaboureur, dontilasonit payee; 
ains au contraire battent les pauvres gens et les outragent, et eo»- 
trugnent d*aller cherdier pain, vln et vivrea dehors? et d le ben 
homme a femme oU fille qiii soit bdle, il ne fera que sagement de k 
bien garder.** 

He represents the ^Bi^aceM j^ltcndttting of 1^ people by tiife 
ptcinee ; declares ihi^t it is tyranny to take the snl^tfs money witiioiit 
Ilia consent, by l3ie act of the three estates, and yayt tib&s tribute of 
prais6 to Engknd: "Or selon mon advis, entte toutoi leaac ign emi es dm 
inonde, dont J*ay Connolssance, ou la chose puWqcie vatinievx fnit£e, 
et OU ve^e mohiB de violence aor le peuple, et ou fl n'ym ttnkiedi>- 
fices abbatus, ny ddbioISs pour guerre, o'est Aug^terre; et tonbe \t 
aort et le malheur aur oeux qui font la gnene," 

Memohr«s de Philippe de Comines^ €h. xf&i. and xht. 



< * «■ 



Nora B« 

^< To gjve the monc^ly of the home market to the produce of domda- 
tic industry, in any particular art or manufacture," says Dr. Smith, " is 
in some meaauie to direct private people in what manner they ought to 
employ their capitals, and must in almost all casesbe either a useless or 
a hurt^ r^ulation. If the produce of domestic, can be brou^t 
there as cheap as that of fore%n, industry, the regulation is evidentlj 
uaeless. If it cannot, it must generally be hurtifiil. It is the maxim 
of every prudent master of a family, never to attempt to make atliotte 
what it will cost him more to make than to buy. The tailor does not 
attempt to make his own shoes, but buys them of the shoemaker. The 



/ 



^OT£S. 467 

shoemaker does not attempt to mdce clothes^ but ^nploys » tailpiv 
Tke fanner attem|^ to make neither, the one nor the other^ but emr 
ploys those iSitifecent artificers. A]l of them find it for their interest 
to employ their whole industry in a way in which they have some ad^ 
vantage over their neighbours* and to purchase with a part of its pro.- 
dxnoe, cfr, what i& the sama thing, with the price of a part of it^ what;- 
ever else they have occasion for. What is prudence in the conduct 
of every private family^ can scarce be folly in that of a great king- 
dcnn. If a foreign country can supply us with a commodity cheaper 
than we ourselves can make it> better buy it of them with some part 
of the produce of our own industry, employed in a way in which we 
have some advantage. The general industry of the country being al- 
ways in pri^rtion to the ca^atal which employs it, will not thereby 
he diminished, no more than ih$Lt of the above-mentioned artificers; 
hut only left to find out the way in whjch it can be employed with 
the greatest advantage. It is certainly not employed to the greatest 
advantage, when it is thus directed towards an object which it can 
buy cheaper than it can make* The value of its annual produce is 
certainly more or less diminished, when it is thus turned away from 
producing commodities evidently of more value than the commodity 
which it isidirected to produce* According to the supposition, that 
oommqdity could be purchased £rom foreign countries cheaper than 
it can be made at home ; it could, therefore, have been purchased with 
a part only of thp commodities* or, what is the same thing, with a 
part only of the price of the commodities, which ijie industry employ- 
ed by an equal capital would have produced at home^ had it been left 
4o foUow its natural course. The industry of the country, therefore, 
is thus tiumed away from a moce to a less advantageoua employment; 
and Ihe exchangeable value of its annual produce, instead of being 
increased, acoordii^ to the intention of the la^v^, must necessa- 
sarily be duninished by every such regulation." Book iv. chap. ii. 

This reasoning is at first sight plausible, and has been generally 
received as krefragaUe ; yet I fiatter myself I shall have little diffi- 
culty in provii^ that it is altogether erroneous^ and founded on a 
very narrow view of human affiurs. The whole proceeds on the as- 
sumption, that the industry of the people may always be employed ; 
and that there occurs nothing more between nations than the ex- 
<^ange of one manufacture for another, which certainly could not he 
injurious to nations, and is highly beneficial amongst individuals of 
the same society. But the true view is, that, as in all old countries 
tihe population is fiilly equal to the means of subsistence wMch the 
mM can produce, if we allow manufactures to be imported from a 
country which has the advantage in capital and manufacturing skill, 

2 h2 



468 NOTES. 

in exchange for the prodnoe of the soil^ we deprive « portion of the 
people of the meaxa of life— of all sphere for the exertion of their in- 
dustry. And in this place I must remark, that Dr. Smith appears of- 
ten to look upon the capital of a nation as something definite, and 
which must find employment ; whereas it is the result of skill and in- 
dustry; properly protected, and may be accumulated ind^nitely ; and, 
by improper policy, be again exhausted. 

To illustrate the point, let us take the case of a small proprietor, 
who, on his land, maintains his family and some of his kindred, whose 
support requires nearly the whole produce of the sml. It is quite 
clear, that every bushel saved to the family is in that ease a gaifr; 
and that, as not above a third of them are needed for agricultural 
operations, it is of the liSst importance that part of them should be 
employed in spinning, weaving^ mantua-making, &c. that one should 
perform the part of a tailor, another of a shoemaker, and so on t For 
in this way the produce of the sot), which is all required at home, is 
saved amongst themselves, since all the articles of home manufacture 
could only be procured elsewhere by giving away in exchange the 
produce of the land. Now, suppose that the head of the family, with 
those directly employed in agriculture, should act on the principle of 
purchasing at the cheapest market, it is demonstrable that, as the 
coarse manufactures of home production could never compete with ar- 
ticles furnished under all the advantages of skill, capital, and ma- 
chinery, these foreign productions would entirdy supersede the old, 
and thus throw two-thirds of the family out of employment. The 
new articles, however, could only be purchased by exchanging for 
them the produce of the soil, and as, to procure them, as few hands 
would be employed in agriculture as possible, there would no more 
raw produce be retained than was barely sufficient f<Hr the support 
of those who -were necessary for conducting the farming operations. 
The other two-thirds of the population must, consequently^ eith^ 
emigrate, or perish of want. When, therefore^ the Doctor talks of 
the injury done to a nation by forcing it to buy the produce of do- 
mestic industry, while it can procure that of foreign countries cheap- 
er, he overlooks that, if it be a loss to one portion of the society to 
pay higher for the artides than they could procure them at from 
* abroad, it is a gain to the rest. What is apt to mislead one in consi- 
dering a simple case of this kind, is, that, in a state, those who are so 
discarded from one department find emplojrment in another. But this 
^ could not hold in regard to theintercourse between nations. Let us, 
however, before considering the case of a nation, take an example 
of an inland town, and suppose that all its ac^aoent land-owiKE^ 



NOTES. 409 

and those employed in agriculture^ draw thdr manufactures from it 
in reinm for the produce of the 8(^1 ; that the town thrives — the sur- 
plus population of the country alwa^^s finds employment there — capi- 
tal is accumulated-— skill is acquired — ^and as the profits of stock in 
diBferent departments must be nearly equals the agriculturists who 
can provide in the town for such of their families as they do not need 
in the eoimtry, alsoaoeumulatp capital^ and agriculture proceeds with 
the improvement observable in other branches of skill and industry ; 
that^ however^ a new canal suddenly opens a communication between 
large towns^ as Manchester and the Hke, which are ready to sweep 
off the produce of the soil in exchange for their superior fabrics^ — ^is it 
not equivalent to demonstration itself, that the whole manufactures 
of this country town would be instantly ruined ? and tliat^ as has 
happened in all the present agricultural districts^ the town would 
dwindle. into insignificanice ? WhsLt, then^ would become of that 
portion of the inhabitants that had previously acquired iudependeucej 
and even optdence^ in the town f They must either migrate to another 
quarter^ or starve. Bi^t though they might migrate from one district 
of the same state to ^nother^ they could not with the same facility 
leave the country altogether ; and miser^ble^ indeed^ would be the 
nation^ where more than the half of the inhabitants found it neces<f 
sary to forsake it. We shall now^ therefore, consider what would be 
the condition oi a whole nation. 

Let us take the case of a fertile island of about a hundred miles 
square. That the population would be fully commensurate with the 
means of subsistence, no one who has studied the subject will deny ; 
And as little above a third of the population can be required for agri- 
culture, the rest can, in manufactures only, find employment ;* and 
with it an equivalent for the produce of the soil. Now, let us suppose 
that the island, even after having made Qonsiderable advances in 
wealth, opens a communication with Britain for a free and unlimited 
importation of manufactures in exchange for staples ; aod th^t the 
latter, with her skill and capital, is enabled to furnish every article 
of a superior fabric to what can be manufactured at home, while she 
allows a free importation of the grain and other produce of th^t is- 
land : Would not every loom in that island be thrown out of employ* 
ment ; and the same result occur in regard to the manufactures 
of Sheffield and Birmingham ? Even Dr. Smith himself admits, 
that by ^^ the free importation of manufactures, several of the home 
manufactures would probably suffer, and some of them perhaps go to 
ruin altogether ;" but then he thinks that the stock and industry em- 
ployed in ^hem would find some other channel. He forgets, however, 

2 H 3 



470 NOTES. 

that though this tnig^t hold where there is moAy an iaten^M^ of 
tnamifacturefl^ it nerer ooold happen where the raw prodooe of the 
soil in an old country is exporte^for the wrought goods ; For^ as the 
hihabitants at home are sufficiently numerous to eimsunie the whole 
grain raised^ there cannot he a bushel of it exported without lessening 
their means of subsistence. The land-owners and agricnltaiistsy too> 
hare only a certain proportion of the prodnee, or, what is the aame 
things of the price which it brings, to exchange for manufactarea; 
and they cannot both purchase foreign wrought goods with this spate 
produce, and yet supply the inhabitants at home by taldi^ their aceua- 
tomed quantity of manufactures in exchange. We may remark, too, 
that the capital of Britain would be so augmented by this vent for 
her goods, that, with all her adyantages, she, in order tiy obtain the 
raw produce, would outriral the other isle in any new manu£w* 
ture which it might attempt. The result wovdd be, that none in the 
6mall island could find employment but those required for agricak> 
ture, and such as were necessary to manage the exchange between 
the land-owners with the agricultural classes and Britain, whidi,both 
together, could not occupy above a half of the whole inhabitsnts. 

On a superficial view it may be inferred, that this would be at least 
beneficial to the landed portion of Ihe community who thus purcba« 
sed their goods at the cheapest market ; but it will be founds on a 
little examination, that the system would be injurions to the interest 
even of that class, while all must admit, that, were it otherwise;,' it 
would yet be contrary to all sound policy, and the right of humanity^ 
to serve them at the expense of ruin to the remainder of the inh^*- 
tantF. As the redundant population (that is, the portion not requi- 
red for agriculture) could not be otherwise emfdoyed, there would 
be a competition for land till the profits were rednced to the very 
lowest ebb ; but as, without capital, which, under tihese oireumstan- 
ces, would soon be exhausted, agriculture cannot be eondueted with 
success, the ground, unassisted with lime or any expensive mamue^ 
would be overcropt, till it could afford but a very diminished rent. A 
farmer, too, having no way to provide for his chHdren in any 
other line, would be farther crippled by bang obliged to retMn at 
home those whom he did not need to assist him in his agricultural 
operations, and this would further diminish his abiMty to pay rent. 
The land-owners would themselves have no outlet for their families^ 
and poor relations to a distant degree would necessarily hang upon 
them, begging farms as the only means of obtaining rabsistence. 
Land, however, cannot be multiplied, and, therefore, farms could not 
be given to them, unless by the extrusion of some of those who air 



NOTES. 471 

ready occupied the soi) without hxn^g k daim «f ptofiinQu^y .to tui* 
vanee> and who^ therefore, must deaeend to the lowest class. 3ut aa 
these zolatioBS would, after haviog obtained such provisious, many 
and haTB families^it is clear that their children. could only be provi- 
fdr,. either by subdividing the farms, which could not ,gp on far, 

by extruding others through the favour of the knd-owper. 

The ^ystevi .of pcovading for the descendants of poor relations, 
liowesrer, eould mot, aa at each st^ the propinquity would. bo lessen- 
ed, be Umg coBtiaued ; that of subdivision, therefore, mu§t bi^ resorted 
to, till part gradually descended into the rank of common labourers. Ip 
4lie ueaatime!, netoer lundred reqidre farms, aud others must renounce 
their {KNBsessions, Thus, there would be a perpetual overflow from 
the Mfjbi filaases piessiug upon those beneath, and gradually wasting 
mm$j the lowest. And here we niust remark, that Dr. Smith does 
OMrt abtfw his uaual perepicacity, whi^n he argues that, though the 
«teiMitk>|i 0f- a. stationary, or deeliuing society, be attended with hard- 
flhlp to the labouii^g fihusees, the wages of labour u^ust always be 
joffident to snjjHport the labourers, since otherwise tfi^t useful dass 
of men would wear out,— ^whence, we must conclud^^ that he cpn< 
^vod theve is aomo interminable hue betweien the higher and the 
'Jawct i«idpi,'dmilar to that betwi^^t the whites and t>lapjks in the 
West Indies,— £)r, otherwise, he must have seen, that there is nothing 
to pKe^eat the OYerflowings of the higher ranks from descending, as 
in Biieih ewes they must do, in the scale of life. To return to the 
^BOndltioii of tJie higher ranks in ike island we have supposed: The 
land-owner, with a poor kindred, ill-paid rents, and a beared te« 
na&try, would soon have small cause to congratulate himscJf on any 
advantages derived from foreign manufactures, while, as the island 
would not be possMed of resources against foreign enemies, he would 
have no security for bis estate. 

But this view of matters may be supposed imaginary rather than 
veal. It is only neoewary^ however, to look to Poland, where such a 
^atem operates infinitely more than even an arbitrary government, 
in beggaring the people, to be convinced of the truth. Were the im- 
portation of manu&ctures into that country to be prohibited, they 
would necessarily be soon begun with ^irit, since such as re- 
qsise thcaoo, would, when deprived of the superior fabrics of other 
oountries,.be ol^ged to purchase the home productions of industry, 
however coarse; nc»r would it impose any great hardship on them, 
even at the first, since every thing is comparative, and no man could 
be undervalued by his neighbours who had the best itrticles which 
could be procured. In a short time, skill would be acquired, cajpltal 



472 NOTES. 

BctamvlUted, and the bulk of the inhabitants provided with the 
means of procoring the neoenaries of life« while rents would be won- 
derfully augmented. What oecuned duzii^ the late American war ? 
That predoded our market, a people altogether unacquainted with 
manufaetnringy found it necessary to encourage it; and, in the 
course of two or three yeant, made a rapid progress in that d^art- 
ment of industry. When the peace came, however, their wrought 
goods could not stand in competition with those o^ Britain, and a 
great part of their new artizans were obliged to strike work. This 
was, in America, attended with no evil, because there was abundance 
of new land for the people to resort to ; but, had the States been ful- 
ly inhabited to their means of subsistence, and the free importation 
of their grain been allowed into Britain, it could not have fidled to 
have proved most ruinous. Had it not been for the com laws, and 
restrictions in foreign countries on the importation of our manufac- 
tures, we should, in all probability, have, at the same time, ruined 
half the manufactures of Europe, while we carried off the produce o€ 
the soil from a bewared population, who, in the nature of things, 
must fully require it all for their own support. 

I cannot leave this subject without acknowledging my obligations 
to the work of my late invaluable friend, Mr. Dawson, entitled, an 
Inquiry into the Causes of jthe Poverty of Nations. The work is 
replete with sound thinking; but, owing to the author's not having 
been early accustomed to composition, (he was about eighty when he 
published this book,) it has been, in a great measure, lost by the 
plainness of the style. 



Note C. ^ 

r » * 

1 

I have ascertained that,' in the copy of Leslie's MS. in the British 
Museum, a copy, however, which is far from being perfect, the num- 
ber alleged to have been executed for the northern rebellion is filled 
up at 800. But when the manuscripts,-.-of which the most perfect 
one, (one in the hand-writing of the bishop's amanuensis,) is in the 
Advocates^ Library — are so discordant, we cannot depend on the num- 
ber specified in figures of either ; and, therefore, we must rely on 
Cambden, who had so many, opportunities of knowledge, on this sub- 
ject, equal at least to Leslie, and who extracted great part of his in- 
formation as to negociations, from a copy of Leslie's manuscript. See 
Anderson's Introduction. ' 



NOTES. 473 



Note D. 

In page246> I have^ in a note^ said^ that though I was not aware 
of Mr. Hume's authority^ (he refers to none^) I was not prepared to 
contradict his statement in regard to the coimtry hdng ohliged to 
arm and clothe, tJie troops which were raised^ and transport them ta 
the sea-ports at their own diai^. But I conceive that I am now in 
a situation to contradict it^ and contrast the alleged tyranny of Eli- 
zabeth's reign with that of Charles I.^ for whose sake the statement 
was made. In Mr. Pym's Speech on Grievances, on the 7th of No- 
vember^ 1640^ there is the following passage^ which none ofBsKd to 
contradict. '* Military charges ought not to be laid upon the people 
by warrant of the king's hand ; nor by letters of the council table ; 
nor by order of the lords lieutenants of the counties^ nor their deputies. 
It began to he practised as a loan, for supply of coat and conduct mo- 
ney^ in Queen Elizabeth's time^ vnth promise to be repaid as ap- 
pears by a constat warrant in the Exchequer^ and certain payments^ 
hit now-a-^ys never repaid. The first particular, brought into a tax, 
was the muikter-master's wages^ which^ being but for smaUaums^ was 
generally digested ; i^et; in the last parliament, it was designed to be 
remedied : But now there follows, 1st, Pressing of men against their 
wiUs, or to find others ; 9dly, Provisions for public magazines ofpovh' 
der, spades, and pick^axes ; Zdly, Soiary of officers, cart-horses and 
carts, and such Uke." ParL Hist. vol. ix. p. 66. Cobbett's do. vol. 
ii. p. 643. 

Mr. Hume has^ in note LL to volume V. given some extracts from 
the parliamentary journals preserved by Townshend and D'Ewes, but 
with what adroitness he has selected the most obnoxious passages, 
and stopt wherever the context gave a different character to the 
whole, we shall now prove. The subject regarded monopolies, when 
a bill was proposed by Mr. Lawrence Hyde in explanation of the 
common law. Bacon said, " For the prerogative royal of the 
prince, for my own part, I ever allowed of it ; and it is such as I 
hope I shall never see discussed. The queen, as she is our sovereign, 
hath both an enlarging and restraining liberty of her prerogative; 
that is, she hath power, by her patents, to set at liberty things re- 
strained by statute-law, or otherwise : And, by her prerogative, she 
may restrain things that are at liberty. For the^r^^.* She may 
grant non obstantes, contrary to the penal laws ; which, truly, in my 
-own conscience, are as hateful to the subject as monopolies.'* 
The following, however, Hume omits. " For ihesecmid : If any man 



474 NOTES. 

out of his own ufit, indttstry, or endeawmr^Jind out anything beneficial 
for the commonwealth, or bring any new invention, which every subject 
of this realm may use ; yet^ in regard of his pains^ travel^ and chaige 
dn> her miyesty is pleased (perhaps) to grant him a privil^e to 
the same only by himself, or his deputies, for a certain time: 
This is one Idnd cf monopoly. Sometimes there is a gkit of things^ 
when they be in exceisite quantities, at of oom; and perhaps her 
mijesty gives license to cue man of tranaportatioa : Thia is another 
kind of monopoly. Sometimes there ia a scardly or small fuaatity ; 
and ihe like is granted also. 

These, and divers of this nature, have be^ in tryal, both Uk the 
Onnmon Pleas upon actiona of trespass ; where, if tlie judges do find 
tile privilege good for die commonwealth, they win aUow it, o^hcr* 
wise disallow it. And also I know that her mi^ty herself hath 9U 
ven command to her attomey-general to bring diveni of them (since 
the last parliament,) to tryal in the Exchequer, l^aee which, fifteen 
or sixteen to my knowledge have been repealed: Some I^»oA her jna* 
jesty's own cjipi U BS command, upon eomplaint Bwde unto her by pe- 
tition ; and some by ^pio warrasiio in tiie Exchequer. But, Mr. S^ieak* 
cr, (said he, pointii^ to the bSl,) thia ia no stnngier in this |^^ ; 
but a stranger in this vestmoit." Here, i^gain, Hume b^^ins his %«o- 
tation. '^ The use hatii been ever, by petition, to humble ouxselfes 
to her miyesty, and by petition to desure to have our grievances re- 
dressed, especially when tiie remedy toudieth her so nigh in pieroga- 
tive." Here, again, Hume atops. *' All cannot be done at once ; no« 
tiler was it possible, sinte tiie last parliament, to repeal all. If her 
migesty makes a patent, or a monopoly to any of her servanls ; tiiat 
we must go and cry out against : But if she grant it to a number ef 
burgesaes, or corporation, that must stmd, and tha$, f<Mratx>th, ia no 
monopoly.'* This is all omitted. But the following is not. ^' I s^, 
and I say again, that we ought not to deal, or meddle with, or ju^ 
of, her mi^est/s prerogative. I wish every man tiierefore, to be 
careful in this point ; and," mark the sequel, ** humbly pray tliis 
house to testify witii me that I have diachsj^ied my duty in respect 
of my place in speaking on her majesty's behalf; and do protest, I 
have delivered my conscience in saying what I have said." 

Dr. Bennet sa^ : " He that will go about to debate her mi^esty's 
prerogative royal, must walk warily. In respect of a grievance out of 
that city for which I serve, I think myself bound to speak that now 
which I had not intended to speak before ; I mean a mon/(^y of salt. 
It is an old proverb, sal sajdt omnia : Fire and water are not more 
necessary. But for other monopolies of cards, (at which word Sir 



NOTES. 475 

WilUx Rawld^ bluthed,) dioe^ starchy &e.> tfaey me, (because mo- 
nopdies^) I must confess^ very hateful, though not so hurtful. I 
know there is a great diffierenee in them ; and I thinks if the abuse 
in this monopoly vfsaU'Wtre particularized^ this would walk in the 
fore-rank. 

'' Now^ seeing we are come to the means of redress^ let us see it be 
80 mannorly and handsomely handled, that, after a commitment, it 
may hare good passage." 

Mr. Lawrence Hyde said: '' I confess, Mr. Speaker, that I owe 
duty to God and loyalty to my prince. And, for the hill itself, I 
made it, and I think I understand it : And far be it from this heart 
of mine to think, this tongue to apeak, or this hand to write, any 
thing in prejudice or derogation of her migesty's prerogatiye .royal, 
and the atate^" Here Hume prudently pauses. " But because ye 
ciiall know this course is no new iuTention, but long since digested 
in the days of our forefathers, above three hundred years ago ; I will 
Xfttet to your coBsiderationaoBe precedent in the 60th £d. IJI. At 
which time, one John Peache waa arraigned at this bar, for that he 
had obtained of the king a monopoly for sweet wines: The patent, 
alter great adyice and dispute, a^'udgedToid; and before his face, in 
open parliament, canoell*d; because. he had exacted three shilUnga 
and fonrpenoe upon every tun of wine; himself acljudged to priaoa 
imtil he had made restitution of all that he ever had received, and 
not to be delivered till after a fine of L.500 paid to the king.*' 

" Out of the spirit of humility, Mr. Speaker,** says Mr. Franda 
Moore, '' I do i^eak it. There is no act of hers that hath been, or ia, 
more den^tory to her own migeaty, or more odious to the subject, 
or more dimgeroos to the commonwealth, than the .granting of diese 
monopolies." 

" Mr. Townshend of Lincoln's Im, (the collector of this journal,) 
seeing the disagreement of the committees, and that they could agree 
upon nothing, made a motion to this effect : First, to put them in 
mind of a petition made the last parliament, which, though it took 
no ieffect, we should much wrong her majesty, and forget ourselves, if 
we should think to speed no better in the like case now; because 
there was a commitment for this piHpose, and the committees drew a 
speech, which was delivered by the Speaker, word for word, at the 
end of the parliament But now we might hope, that by the sending 
of our Speaker, presently after such a committee, and speech made, 
with humble suit, not only to r^eal all monopoliea grievous to 
the subject ; but also, that it would please her majesty to .give us 
leave tamake an act, that they might be of no more force, validi«» 



470 NOTES. 

tj^ or effect, than they are at the commoa kw> without the 
strength of her prerogative : whidi, thon^ we might now do, and the 
act being bo reasonable, we did assure ourselTes her miyesty would 
not deny the passing thereof; yet we, her nu(|esty*s loyal and loving 
subjects, would not ofEer, without her privity or consent, (the cause 
so nearly touching her prerogative,) or go about the doing of any 
such act And also, that at the committee, which should make thk. 
speech, every member of this house, which either found himself, his 
town, or country grieved, might put in, in £ur writing, such excep- 
tions and monopolies as he would justify to be true. And that the 
Speaker might deliver them with his own hand, befanse many hiiL-> 
drances might happen." 

Mr. Davies said: ''God hath given power to alNwlute princes, 
which he attributeth to himself: Dixi quod Dii esHs* In Uus in- 
stance the conduct is most reprehenaible." Here Hume stops ; and 
yet the sequel places the meaning in a different point of view; while 
another speech, by Davies, (who turned so great a syoc^hant after- 
wards, asserting the absolute authority of King James,) is of a very 
^ di£ferent description. — " And as attributes unto them, he hath given 
them majesty, justice, and mercy. Majesty, in respect of l^e honour 
that the subject sheweth unto his prince. Justice , in respect he c^ dp 
no wrong : therefore the law is, 1 Hen. 7. that the king cannot com^ 
mit a disseisin. Mercy ^ in respect he giveth leave to his subjects to 
right themselves by law. And therefore, in the 4ith Ass, an indict<>> 
meut was brought against bakers and brewers; for that, by colour of 
license, they had broken the assize : Mlxerefore, according to that pre- 
cedent, / think it most fit to proceed by bill, and not by petition." 

'' This dispute," says Secretary Cecil, '' draws two great things in 
question : First, the prince's power ; Secondly, the freedom of £ng? 
lishmen. I am born an Englishman, and a fellow member of this 
House. I would desire to live no day in which I sboidd detract froqt 
either. 

'' I am servant to the Queen; and before I would spe^k, or ^ve 
my consent to a case that should debase her prerogative, or abridge i^ 
I would wish my tongue cut out of my head. I am sure there were 
law-makers before there were laws. 

*' One gentleman went about to possess us with the execution of the 
law in an ancient record of 50th £d. III. likely enough to be true, in that 
time, when the king was afraid of the subject. Though thia presenqe 
be a substance, yet it is not the whole substance of the parliament ; 
for, in- former times, all sate together, as well king as subjects. And, 
then it was no prejudice to his prerogative to have such a monopoly ev^ 



NOTES. 477 

aiained. If you stand upon law^ and dilute of the prerogative, hark 
what Bracton saith^ Prerogativam nostram nemo attdeat dispu^re, 
^c For my own part, I like not these courses should be taken ; 
4uid you, Mr. Speaker^ should perform the charge her Majesty g^ye 
tmto you at the beginning of this parliament, not to recdTe bills of 
this nature.- Fog her Migesty's ears be open to all our grievanc^iiy 
ind her hands stretched out to every man's petition."— ^This is detest^ 
able. 

(The patoit for bottles was lately iuade void by judgment in the 
Exchequer.) 

Mr. Davies (the same gentleman whose particular words are caught 
at by Hume, without the context) '^ moved the house first : That l^e, 
for his part, thought the'proceeding by bill to be most ccmvenient ; for 
the precedent in the dOth Edward III. warranteth the same. .And 
therefore let ms do generously and bravely , like Parliament vten ; avd 
^ursdves send for them and their patents, and cancel them bejore their 
faces .* Arraign them, as in times past, at the bar, and send them to thfi 
Tower ; there to remain, until they have made a good fine to the, QMeen^ 
tmd made some part of restitution to some of the poorest that have been 
oppressed by th^n^^-^an^ withal laughed.'' 

" Mr. Martin, after a long speech made touching these monopolies, 
fiius concluded: ^^ And therefore the gentleman that spake last^ (Dei- 
vies^) spake most honestly, learnedly, and stoutly. Yet thus much I 
must needs say, his zeal hath masked his reason; and that, I think, 
was the cause of his fervent motion^ which ^ I desire, may be cooled 
with a petition in most dutiftd manner," &c. 

''I believe," says Secretary G^, ^' there never was in any parlia- 
m^ta more tender point handled than the liberty of the subject, and 
.the prerogative royal of the prince. What an indignity, theUj is. it to 
the prince, and injury to the subject, that when any is discussing this 
point, he should be cryed and coughed down." (Does not this shew 
the temper of the house ; and was it not likely himself was so la^ed 
'£» his slavish speech ?) '^ Thii^ is more fit for a grtunmar school than 
a parliament. I have been a counsellor of state these twelve years ; yet 
■never did I know it subject to, construction of levity or disorder: much 
more ought we to be in so great and grave an assembly. Wliy ?. we have 
had speedbies, and speedi upon speech, without either order or discre- 
tion. " One would have had us to proceed by bill, and see if the Queen 
■would have denied it. Another^ that the patents should.be brought 
here before us, and cancelled ; and this were l»riively done. Others 



478 NOTES. 

wonld have us to proceed bj way of petition^ which^ of boiih^ doiibt¥ 
less is best. 

'' But for the first, (and especially for the second,) it is so ridica* 
hnu, that I think we should have had as bad success as the devil him* 
self would have wished in so good a causer Why ? if idle oourses 
had been followed, we should haye gone (forsooth) to the Queen with 
a petition to have repealed a patent or monopoly of to b accQp y ^es^ 
(which Mr. Wingfield's note had,) and I know not how many oouii 
ceits. But I wish every man to rest satisfied, until the committees 
have brought in their resolutions according to your commandments.'*  

The tipeaker, only three days after this debate, received a message 
to deliver to the house, which was followed up by Cecil, announcing 
the repeal of those m<niopolies4 " Bbe said that, partly by intimation 
of her eouncO, and partly by divers petitions that have been ddiyered 
unto her, boA going to dii^l and also walking abroad, she under* 
stood that divers patents that she had granted were grievous unto her 
subjects, and that the substitutes of the patentees had used great op«. 
pression. But she said she never assented to grant any thing that was 
malum in se» — I cannot express unto you the apparent indi^MitisB 
of her magesty towards these abuses*" She afisurod them of a relbr* 
mation, and imputed its not having been done to Essex's reb^ion. — 
That now it should be done : " that some should presently be repealed, 
some suspended, and not put m execution ; bui such as shoMfini 
have a trial according to the law for the good of her people, 

** Against the abuses ber wrath was so incensed, that she said she 
neither would nor cotdd suffer such to escape with impunity.** 

Cecil said, '^ There are no patents now of force which shidl not 
presoitly be revoked; for what patent soever is granted, there lAiaM 
be left to the overthrow of that patent a liberty agreeaMe to the law. 
There is no patent but if it be mahtm in se, the Queen was iU aj^vrised 
in her grant; but all to the generality are unacceptable. I take it 
there is no patent whereof llie execution thereof hath been ii^jurious ; 
would that had never been granted. I hope tliere shall nevmr be 
more*** (All the house said AmenJ) 

On another occasion, a day or two after, but vdativie to the mes- 
si^, Mr. Secretary Cecil said, ** If I should tell you otherwise itian 
truth in a matter of so great consequence, I diouM need no other 
process than my own conscience. That to so gradous a message 
there wero never returned more infinite thanks> we afi aro assuivd. 
From the ^pieen I have received a i^ort aB8w» in these woida : Y<m 



NOTES* 479 

can gi/H me no more tha/nkef&r thai vihkh I have promieed^fou, than I 
tan and will give you thanks for that which you have already performed, 
(meaning t^e subsidies and fifteens.) 80 insepaorably are the qiudities 
flf the piinoe uid the sul^jject good for the one and die odier/' 

" There were some other topics^" says Mr. Hume^ in fayonr of pre- 
rogatiiFe^ sCiU more extravagant^ advaneed in the house this parlia- 
ment. When the question of the subsidy was before them> Mr. Ser- 
jeant H^lesaid: ^ Mr. Speaker, I marvel much that the house 
diould stand upon granting a subsidy or the time of payment, whev 
all we have is her migest^s, and she may lawfully, at her pleasure, 
take it from us : Yea, she haUi as much ri^t to all our lands and 
goods as to any revenue of the crown." At which all the house hem- 
med, and laughed, and talked. *' Well, quoth Seijeant Heyle, all your 
kemnm^ shafl not put me out ci countenance,'* (this man was qua- 
liiSed with a vengeance to browbeat a witness.) " So Mr. Speaker 
stood up, and ssdd, it is a great disorder, that this house should be so 
vuedk" Mr Hume should have added, " for it is the ancient use of 
every man to be silent when any one speaketh ; and he that is speak- 
ing should be 8U&red to deliv^ his mmd without interruption." 
'' 80 the said scajeant proceeded, and when he had spdcen a little 
whfle, the house hemmed again, and so he sat down. In his latter 
«peedi, he said he could prave his former position by precedents 
in iSbe time of Henry III. King John, King Stephen, &c. which was 
iSie occasion of their hemming. It is observable that Heyle was an 
ennnent lawyer, and a man of dianicter ; and though the house, in ge- 
Beral^ riiewed their disapprobation, no one cared to take him doum, or 
oppose those monstrous podtioDS." How differently the same thing 
fitrikes difierent men. Whoi I met with this in the journals by 
lySwes and Townshend, I conceived that it was d^rading to the 
house for any member to make a remark on what had so excited the 
utter contempt of the whole house, that the speaker's interposition 
could not procure the seijeant a hearing. But when I read Mr. 
Qu»e*8 note, I chapged my opinion ; and was glad to find the Ser- 
jeant taken down in the following manner : '* Mr, Ifoniagve of the 
Middle Temple said, that there were no such precedents ; and if all the 
preambles qf subsidies were looked upon, he should Jind it was of free 
gift And although her majesty requireth this at our hands, yet it is «iC 
ui to give, not in her to exact, of duty." D*£we8» p. ^3. Townishend^ 
p. 205. Now, as the one follows the other immediately, I would ask^ 
was it possible for Hume to overlook it ? But Heyle was a great law* 
yer; He made a poor figure with it Nay, but he was a man of 
character ! I would deairo no better proof of the ^ntrary than that 



480 NOTESU 

riavish conduct which excited such scorn in the assemhly to wh(»n it 
was addressed. 

*' It was asserted this session/' says Humcj " that, in the same 
manner as the Roman consul was possessed of the power of rejecting 
or admitting motions in the senate> the spesker might either admit or 
reject hills. The house declared themselves against this opinion ; hut 
the very proposal of it is a proof at what a low ebh liberty was at that 
time in England." Now let us take the journals from which Hume 
deriyes his information. 

'^ Then the questions upon the continuance of statutes were offered, 
to he read^ but the house called for the bill of ordnance ; yet the derk 
fell to read the questions, but the house still cried upon ordnance- 
At lengthy Mr. Carey stood up, and said. In the Roman senate the 
consul always appointed what should be read, what not ; so may our 
speaker, whose place is a consul's place : If he err, or do not his duiif, 
fitting to his place, we may remove him* And there have been precedents* 
But to appoint what business shall be handled, in my opinion we 
cannot; At which speech some hissed. Mr. Wiseman said, I 
reverence Mr. Speaker in his place, but I take great difference be- 
tween the old Roman consuls and him. Ours is a municipal govern- 
ment^ and we know our grievances better than Mr. Speaker ; and, 
therefore fit every man, altemis vicibm, should have those acts called 
for he conceives most necessary. All said, ay, ay, ay.'* Does this con- 
vey what Mr. Hume imputes to it? D*£wes, p. 677. The rest of 
Mr. Hume*s note has already been commented on by us. He unfcn*- 
tunately was unacquainted with law, and misled by its language. 
But, as he ever dwells on proclamations, alleging that, in the reigns 
of even James and Charles, nobody doubted that they might be issued 
with the effect of laws, we shall give the following ^m. Coke's re« 
ports. ** 



'" The case of Proclamations, Mich, VIII. James /. A.D, I6IO. 

(12 Coke's Reports, 74.) 

*^ Memorandum, that, upon Thursday, 30th September, R^is JaiXN 

bi, I was sent for to attend the Lord Chancellor, Lord Treasurer, Lwd 

' Privy Seal, and the Chancellor of the Duchy, there being present the 

' attorney, the solicitor, and recorder : and two questions were moVed 

* to me by the Lord Treasurer ; the one, if the king by his proclamation 

may prohibit new buildings in and about London, &c. the othdr, if 

the king may prohibit the making of starch of wheat; and the Lotd 



NOTES. 481 

Treasurer said^ that these were preferred to the king as grievances^ 
and against the law and justice : and the king hath answered^ that he 
will confer with his privy council> and his judges^ and then he will do 
right to them. To which I answered that these questions were of 
^reat impcMrtanee. 3. That tiiey ooncemed the answer of the king to 
the hody, viz. to the oommcms of the house of parliament. 3. That I 
did not hear of these questions till this morning at nine of the dock ; 
fot the grievimoes were preferred^ and the answer made when I was 
in my circuit. And> lastly^ both the proclamations which now were 
shewed, were promulgated, anno 5. Jac after my time of attorney- 
ship ; and for these reasons, I did humbly desire them that I Boight 
have conference with my brethren the judges about the answer of the * 
king, and then to make an advised answer according to law and rea- 
son. To which the Lord Chancellor said, that every precedent had 
first a commencem^t, and that he would advise the judges to main- 
tain the power and prerogative of the king ; and in cases in which 
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 other- 
wise 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 die Lord Privy Seal said, that 
liie physician was not always bound to a precedent, but to apply his 
medicine according to the quality of the disease: and all eoncluded> 
that it should be necessary at that time to confirm the king's preroga- 
tive with our opinions, although that there were not any former pre- 
cedent Or authority in law ; for every precedent ought to have a com- 
mencement. 

To which I answered, that true it is that every precedent hath a 
commencement ; but when authority and precedent is wanting, there 
is need of great consideration, before that any thing of novelty shall 
be established^ and to provide that this be not against the law of the 
land: for I said, that die king cannot change any part of the common 
law, nor create any ofience by his proclamad(m whidi was not an of- 
fence before, without Parliament. But at diis time; I only desired 
to have a time of consideration and conference with my brothers, for, 
^' detiberandum est diu quod statuendum est semel ;*' to which the so- 
licitor saidi that divers sentences were given in the star-chamber upon 
the proclamation against building: and that I myself had given sen- 
tence in divers cases, for the said proclamation : to which I answered, 
that precedents were to be seen, and consideration to be had of this 
upon conference with mj brethren, for that '^ melius est recurrere, 
quammale currere :*' and that indictments conclude, *' contra leges et 



48^ NOTES. 

statuta/' but I nerer heard an indictineBt to oondude> " contra regiam 
proclamationevb'' At last^ my motion was allowed, and the lords ap- 
pointed the two Chief Justices^ Chief fiaron, and Lord Altham^ to 
have consideration of it. 

Note^ the king, by his procjbunttkm or otherwi8e> cannot change 
any part of the common law^ or statute law> or the customs of the 
realm> 11th Henry IV. c 37. Fmrtescue, De Laudibus Angte Legum^ 
cap. 9. 18th £d. IV. c. 35, 36, &c. 31st Henry VIII. cap. 8. hie 
infra. Also the king cannot create any olBPence by his prohibition or 
prodamation which was not an offence before, for that was to chai^ 
the law, and to make an offence which was not ; for, *' ula non est 
lex, ibi non est transgressio ;" ergo, that which cannot be punislied 
without proclamation, cannot be punished with it. Vide le stat 31st 
Henry VIII. cap. 8. which act gives more power to the kii^ than he 
had before ; and yet there it is declared, that proclamations shall not 
alter the law, statutes, or customs of the realm, or impeach any in his 
inheritance, goods, body, life, &c. But if a man should be indicted 
for a contempt against a proclamation, he shall be fined and impii^ 
soned, and so impeached in his body and goods. Vide Fortescue^ 
cap. 9. 18. 34. 36, 37, &c. 

But a thing which is punishab^ by the law, by fine, and impri- 
sonment, if the king prohibit it by his proclamations befnre that he 
will punish it, and so warn his snljeets of the peril of it, then if he 
commit it after this, as a circumstance, aggravates the offence ; but he 
by proclamation cannot make a thing unlawful which was permitted 
by the law before ; and this was well proved by the ancient and 0Qn« 
tinual forms of indictments, for all indictments conclude^ ^^ contra 
legem et consuetudinem Anglise," or '' contra leges et statuta^" &c. 
But never was seen any indictment to conclude, " contra regiam pro^ 
clamationem." 

So in all cases the king, out of his providence, and to prevent dan- 
gers which it will be too late U^ prevent afterwards, he may prohibit 
them before, which will aggravate the offence if it be afterwards com- 
mitted ; and as it is a grand pro'ogative of the king to make procla- 
mation, for no subject can make it without authority from the king, 
or lawful custom, upon pain of fine and imprisonment, as it \b held 
in the 22d Henry VIII. procl. B. But we do find divers precedents 
of proclamations which are utterly against law and reason, and for 
that void ; for, . ^^ que contra rationem juris introducta sunt, non de- 
bcnt tralii in consequentiam." 

An act was made, by which foreigners were licensed to merchan- 
dise within London ; Henry IV. by proclamation prohibited the exe- 



NOTES. 483 

eution of it ; and that it should be in sw^ae, *^ usqve ad proxi- 
mum parliamentum ?" which was against law. Vide dors, daits. 8th 
Henry IV. Proclamation ai London. But 9th Henry IV. an act of 
parliament was made^ that all the Iridi people should depart the 
realm, and go into Ireland before the feast of the nattivity of the 
blessed Lady, upon pain of death, whkh was absoiutely tn ierroremy 
and was utterly against the law. 

Hollinshed, p. 792, A. D. 1S4€/ 37th Henry VIII. the whore- 
houses, called the stews, wore supftressed by proclamation and the 
sound of iirumpet,, &e. 

In the same term it was resolved by the two chief justices, chief 
baron, and Lord Althaai, upon conference betwixt the lords of the 
privy council and them, that the kin^ by his prodamati^ cannot 
careate any offence whidi was not an otifenee before, for tiien he may 
alter the law of the land by his proclamation iti a high point ; for if 
he may create an ofifence where none is, upon that ensues fine and 
imprisonment : Also ^ law of England is div^ed into diree parts, 
common law, statute law, and custom ; but the king's proclamation 
is none of them ; also '^ nudum aut est malum in se aut prohibitum," 
that which is against the commcm law is ^^ mahun in se ;" '^ malum 
prohibitum," is such an offence as is prohibited by act of parliament 
and not by proclamation. Also it was resolved that the king hath no 
prerogative, but that wbich the law oi the land allows him. 

But the king, for prevention of oflfences, may, by proclamation, ad- 
monish his subjects that they keep the laws, and do not offend them^ 
upon punishment to be inflicted by the law, &c. 

Lastly, if the olfenee be net punishaHe in thef star-chamber, the 
{xrobibitioii of it by proclamatioB cannot make it punishable there ; 
und after this resolution no proclamation imposing fine und iroiH-i- 
sonment was afterwards made, &c. 

We intended to have given quotations from Gilby, Groodman of 
Obedienoe, Bn^and's Complaint against the Canons, Cartwright, &c. 
Lutiier, Mb. contra Rustioos, apud Bleidan. c. 5. Lib. de Bello con- 
tra Turoas, apud ^eid. cw 14. ^Suin^us, torn. i. articul. 4S. Cal- 
vin on J>aniel, g. iv. ; c v. p. 38* ; c. vi, S3. Bucer on Matth. c. v. 
PariBus in Rom* xiii. Knox, &c. &c. : But I concave it to be unne- 
cessary to swell out this fkrflier ; and I request the reader to look into 
l^ton's Prose Works, Tenure oi Kings and Magistrates, for the 
quotations, which, on examination, he will find to be correct. 

Wc have already spoken of the practice of kneeling, and the dis- 

3 



481« NOTES. 

tance preserved between ranks^ and members of tbe same family, in 
ancient times. But I forgot to say, that Walpole, in his translation of 
Hentiner*s Travels^ has said,— in a npte on a passage describing Queen 
£lizabeth's retiring from church, and every one in the line formed by 
the attendants, kneeling as she turned her eyes that way,— that the 
practice was dispensed with by James, and referred to Bacon's State 
Papers. But I do not know what part of that philosopher's works 
Mr. IValpole alluded to under this title, and I can find no passage 
authorising the statement. That the practice was continued is indis- 
putable. See our fourth volume, in addition to our note at the foot 
of the page to which this has reference. 

I have already, from Henry, given an account of the state preser- 
ved by the famous Duke of Sully : The following passage, however, 
taken from the Supplement to his Memoirs, is more to be relied on, 
and so singular, that I cannot refrain from giving it 

** II y employoit le matinee entiere, except^ que quelquefois il sor- 
toit pour prendre Fair, une demi-heure ou une heure avant le diner. 
Alors on sonnoit une grosse cloche, qui dtoit sur le pont, pour avertir 
de sa sortie. La plus grande partie de sa maison se rendoit k son ap- 
partement, et se mettoit en haie, depuis le has de Tescalier. Ses ^cu« 
yers, gentilshommes, et offiders marchoient devant lui pr^c^^s de 
deux Suisses, avec leur hallebarde. II avoit a ses cdtes quelques uns 
de sa famille, ou de ses amis, avec lesquels il s'entretenoit : suivoient 
ses officiers aux gardes et sa garde Suisse ; la marche etoit toiqours 
fermee par quatre Suisses. 

Rentre dans sasalle a manger, qui ^tolt un vaste appartement^ ou il 
avoit fait peindre le plus memorables actions ^ sa vie^ jointe k celle 
de Henri-le-Grand, il se mettoit k table. Cette table etoit oomme 
une longue table de r^fectoire, au bout de laquelle iln'y avoit de fau- 
teuils que (k>ur lui et pour la Duchesse de Sully ; tons ses enfanst, manes 
ou non manes, quelque rang ou naissance qu*ils eussent, et jusqu' k la 
princesse de Rohan, sa fille, n'avoient que des tabourets^ou des si^es 
plians ; car, dans ce temps-la, la subordination des enfans aux peres etoit 
encore si grande, qu'ils ne s'asseyoient et ne se couvroient en jamais 
leur presence, qu'apres en av<nr re^u I'ordre. Sa table ^toit servi avec 
goiit et magnificence. U n'y admettdt que les seigneurs et dames de 
son voisinage, quelques-uns de ses prindpaux gentilshommes, et des 
dames et fiUes dlionneur de la Duchesse de Sully ; except^ la com>« 
pagnie extraordinaire, tous se levoient et sortoient au fruit. Le repas 
fini, on se rendoit dans un cabinet joignant la. saUe k manger, qu'on 
nommoit le Cabinet des illustres, parce qu'il ^toit om^ des portraits de 
papes, rois, princes et autres perspnnages distingues ou celebres, qu*il 



NOTES. 485 

tenoit d'eux inemes. On en voit encore ai^jourdliui la plu» grand par« 
tie k Villebon. 

Dans une autre salle k manger^ belle et richement meubl^^ le ca- 
pitaine des gardes tenoit une seconde table, servie k peu pres comme 
la premi^rej ou toute la jeunesse alloit manger, et ou ne mangeoient 
effectivement que cenx que la seule disproportion d'age empecboit le 
Due de Sully de recevoir k la sienne. M. le Due de Sully d'aujourd- 
hui a connu plusieurs personnes de quality, qui hd ont dit que dans 
les yisites qu*il8 se souvenoient d'a^ir faites, ^tant fort jeunes, cbez 
le Due le Sully, avec leurs p^res, il ne retenoit que ceux-d pour 
manger k sa table, et qu*il disolt ordinairement aux jeunes gens : 
Vbus etes trop jeunes pour que nous mangions ensemble, et nous nous en* 
nmerions les uns les cudres*' Supplement, tom. v. p« 356. 



END OF VOLUME FIRST. 



ERRATA. 

Page 6. line ^fir Edwaid III. read Edwaid II. 
33. aOtiBtfir LenmiA read Segouia. 
85. note,/)r ndghbour neighbour ^ read ndghbonr nations, 
119, note, line 10. for so was its authors, read so were, 
2T9. Une 9. from foot^fir the year 1632 read 1532. 

there it also an error in p. 264, note, of 179S for 1593. 
384. note, line 6. for not even life, read nor. 
404. note, line 2. for evang^uts read evangel 
41 5. note, line 4. /ir did do, read did not do. 



Printed by Balfour dr Clarke, 
£(Unburgh« 182S 



ERRATA. 



VOL^ II. 



Page 24« line 6. fw depend reoA depended. ' 

83. note, line 4. for fleet goes out« read goes woi out. 
1$9. line 9. for constitutional read unconstitutional. 
258. line 1. ftrr enlisted in their side, read (m their side. 
303. line 4. for supposed read supported. 

439. line 6. from foot, for iorro read ioro, 

440. line 2. an error in the punctuation destroys the meaning, thus, for 

fnii too were prcMbited ; on Sunday auricular con/eitione, 
&C. readfutt too wereprofdMed on Sunday ; && 
457. line 18. fbr prevents read prevent. 
466. note, line 9. for heat read hint 
520. line 3. for more horridly, read mott horridly. 
N. B. In the references to the letters, in the British Museum, of Joseph 
Mede, the celebrated divine and Fellow of Cbrbt^s C«ttege, Cambridge, Sir 
Jias, by some mistake, crept in for Mr. 



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