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Full text of "The constitutional history of England : from the accession of Henry VII to the death of George II"

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THE 



CONSTITUTIONAL 

HISTORY OF ENGLAND 



FROM THE ACCESSION OF HENRY VII. TO 
THE DEATH OF GEORGE II. 



BY HENRY HALLAM, LL.D., F.RA.S, 

FOREIGN ASSOCIATE OF THE INSTITUTE OF FRANCE. 



IN THREE VOLUMES.— VOL. I. 



EIGHTH EDITION. 



LONDON: 

JOHN MUERAY, ALBEMARLE STREET. 

1855. 



Tlte right qf Translation is reserved. 



LONDON ; WONTED BY WILLIAM CLOWKS AND SONS, STAMFORD STREET, 
AND CHARING CROSS. 



VIST 

Hi* 



TO 



HENRY MARQUIS OF LANSDOWNE, 

IN TOKEN OF HIGH ESTEEM 

AND 8INCEEE BEGABD, 

THIS WOEK IS EESPECTFULLT INSCEIBED 



BY 



THE ATJTHOB. 



Digitized by the Internet Archive 

in 2007 with funding from 

Microsoft Corporation 



http://www.archive.org/details/constitutionalhi01halliala 



P K E F A C E. 



The origin and progress of the English constitution, 
down to the extinction of the house of Plantagenet, 
formed a considerable portion of a work published by 
me some years since, on the history, and especially the 
laws and institutions, of Europe during the period of the 
middle ages. It had been my first intention to have 
prosecuted that undertaking in a general continuation ; 
and when experience taught me to abandon a scheme 
projected early in life with very inadequate views of its 
magnitude, I still determined to carry forward the con- 
stitutional history of my own country, as both the most 
important to ourselves, and, in many respects, the most 
congenial to my own studies and habits of mind. 

The title which I have adopted appears to exclude all 
matter not referrible to the state of government, or what 
is loosely denominated the constitution. I have, there- 
fore, generally abstained from mentioning, except cur- 
sorily, either military or political transactions, which 
do not seem to bear on this primary subject. It must, 
however, be evident that the constitutional and general 
history of England, at some periods, nearly coincide ; 
and I presume that a few occasional deviations of this 
nature will not be deemed unpardonable, especially 
where they tend, at least indirectly, to illustrate the 
main topic of inquiry. Nor will the reader, perhaps, be 
of opinion that I have forgotten my theme in those parts 
of the following work which relate to the establishment 
of the English church, and to the proceedings of the 
state with respect to those who have dissented from it ; 
facts certainly belonging to the history of our constitu- 
tion, in the large sense of the word, and most important 



vi PREFACE. 

in their application to modern times, for which all 
knowledge of the past is principally valuable. Still less 
apology can be required for a slight verbal inconsistency 
with the title of these volumes in the addition of two 
Supplemental chapters on Scotland and Ireland. This 
indeed I mention less to obviate a criticism which pos- 
sibly might not be suggested, than to express my regret 
that, on account of their brevity, if for no other reasons, 
they are both so disproportionate to the interest and 
importance of their subjects. 

During the years that, amidst avocations of different 
kinds, have been occupied in the composition of this 
work, several others have been given to the world, and 
have attracted considerable attention, relating particu- 
larly to the periods of the Eeformation and of the civil 
wars. It seems necessary to mention that I had read 
none of these till after I had written such of the following 
pages as treat of the same subjects. The three first 
chapters indeed were finished in 1820, before the appear- 
ance of those publications which have led to so much 
controversy as to the ecclesiastical history of the six- 
teenth century ; and I was equally unacquainted with 
Mr. Brodie's ' History of the British Empire from the 
Accession of Charles I. to the Restoration,' while en- 
gaged myself on that period. I have, however, on a 
revision of the present work, availed myself of the 
valuable labours of recent authors, especially Dr. Lingard 
and Mr. Brodie ; and in several of my notes I have 
sometimes supported myself by their authority, some- 
times taken the liberty to express my dissent; but I 
have seldom thought it necessary to make more than a 
few verbal modifications in my text. 

It would, perhaps, not become me to offer any obser- 
vations on these contemporaries ; but I cannot refrain 
from bearing testimony to the work of a distinguished 
foreigner, M. Guizot, ' Histoire de la Revolution d'Angle- 
terre, depuis l'Avenement de Charles I. jusqu'a la Chute 
de Jacques II.,' the first volume of which was published 
in 1826. The extensive knowledge of M. Guizot, and 
his remarkable impartiality, have already been dis- 
played in his collection of memoirs illustrating that 
part of English history ; and I am much disposed to 
believe that, if the rest of his present undertaking shall 



PREFACE. Til 

be completed in as satisfactory a manner as the first 
volume, he will he entitled to the preference above any- 
one, perhaps, of our native writers, as a guide through 
the great period of the seventeenth century. 

In terminating the Constitutional History of England 
at the accession of George III. I have been influenced 
by unwillingness to excite the prejudices of modern 
politics, especially those connected with personal cha- 
racter, which extend back through at least a large portion 
of that reign. It is indeed vain to expect that any com- 
prehensive account of the two preceding centuries can 
be given without risking the disapprobation of those 
parties, religious or political, which originated during 
that period ; but as I shall hardly incur the imputation 
of being the blind zealot of any of these, I have little 
to fear, in this respect, from the dispassionate public, 
whose favour, both* in this country and on the con- 
tinent, has been bestowed on my former work, with a 
liberality less due to any literary merit it may possess 
than to a regard for truth, which will, I trust, be found 
equally characteristic of the present. 

June, 1827. 



ADVERTISEMENT TO THE THIRD EDITION. 



The present edition has been revised, and some use made 
of recent publications. The note on the authenticity of 
the Icon Basilike, at the end of the second volume of 
the two former editions, has been withdrawn ; not from 
the slightest doubt in the author's mind as to the cor- 
rectness of its argument, but because a discussion of a 
point of literary criticism, as this ought to be considered, 
seemed rather out of its place in the Constitutional 
History of England. 

April, 1832. 



ADVERTISEMENT TO THE FIFTH EDITION. 



Many alterations and additions have been made in this 
edition, as well as some in that published in 1842. They 
are distinguished, when more than verbal, by brackets 
and by the date. 

January, 1846. 



( ix ) 



The following Editions have been used for the References in 
these Volumes. 

Statutes at Large, by RufFhead, except where the late edition of Statutes 

of the Realm is expressly quoted. 
State Trials, by Howell. 
Rymer's Fcedera, London, 20 vols. 

The paging of this edition is preserved in the margin of the Hague 
edition in 10 vols. 
Parliamentary History, new edition. 
Burnet's History of the Reformation, 3 vols, folio, 1681. 
Strype's Ecclesiastical Memorials, Annals of Reformation, and Lives of 
Archbishops Cranmer, Parker, Grindal, and Whitgift, folio. 

The paging of these editions is preserved in those lately published 
in 8vo. 
Hall's Chronicles of England. 
Hollingshed's Chronicles of England, Scotland, and Ireland. 

The edition in 4to. published in 1808. 
Somers Tracts, by Sir Walter Scott, 13 vols. 4to. 
Harleian Miscellany, 8 vols. 4to. 
Neal's History of the Puritans, 2 vols. 4to. 
Bacon's Works, by Mallet, 3 vols, folio, 1753. 
Rennet's Complete History of England, 3 vols, folio, 1719. 
Wood's History of University of Oxford, by Gutch, 4 vols. 4to. 
Lingard's History of England, 10 vols. 8vo. 
Butler's Memoirs of English Catholics, 4 vols. 1819. 
Harris's Lives of James I., Charles I., Cromwell, and Charles II., 5 vols. 

1814. 
Clarendon's History of the Rebellion, 8 vols. 8vo. Oxf. 1826. 

It is to be regretted that the editor has not preserved the paging of 
the folio in his margin, which is of great convenience in a book 
so frequently referred to ; and still more so, that he has not 
thought the true text worthy of a better place than the bottom 
of the page, leaving to the spurious readings the post of honour. 
Clarendon's Life, folio. 
Rushworth Abridged, 6 vols. 8vo. 1703. 

This edition contains many additions from works published since the 
folio edition in 1680. 
Whitelock's Memorials, 1732. 
Memoirs of Col. Hutchinson, 4to. 1806. 
May's History of the Parliament, 4to. 1812. 
Baxter's Life, folio. Rapin's 



X EDITIONS USED FOR REFERENCE. 

Rapin's History of England, 3 vols, folio, 1732. 
Burnet's History of his own Times, 2 vols, folio. 

The paging of this edition is preserved in the margin of that printed 

at Oxford, 1823, which is sometimes quoted, and the text of 

which has always been followed. 
Life of William Lord Russell, by Lord John Russell, 4to. 
Temple's Works, 2 vols, folio, 1720. 
Coxe's Life of Marlborough, 3 vols. 4to. 
Coxe's Memoirs of Sir Robert Walpole, 3 vols. 4to. 
Robertson's History of Scotland, 2 vols. 8vo. 1794. 
Laing's History of Scotland, 4 vols. 8vo. 
Dalrymple's Annals of Scotland, 2 vols. 4to. 
Leland's History of Ireland, 3 vols. 4to. 

Spenser's Account of State of Ireland, in 8th volume of Todd's edition of 
Spenser's Works. 

These are, I believe, almost all the works quoted in the following volumes, 
concerning which any uncertainty could arise from the mode of reference. 



CONTENTS 



THE FIKST VOLUME. 



CHAPTEK I. 

ON THE ENGLISH CONSTITUTION FROM HENRY VII. TO MARY. 

Ancient Government of England — Limitations of Royal Authority — 
Difference in the effective Operation of these — Sketch of the State of 
Society and Law — Henry VII. — Statute for the Security of the 
Subject under a King de facto — Statute of Fines — Discussion of its 
Effect and Motive — Exactions of Money under Henry VII. — Taxes 
demanded by Henry VIII. — Illegal Exactions of Wolsey in 1523 and 
1525 — Acts of Parliament releasing the King from his Debts — A 
Benevolence again exacted — Oppressive Treatment of Reed — Severe 
and unjust Executions for Treason — i Earl of Warwick — Earl of 
Suffolk — Duke of Buckingham «* New Treasons created by Statute — 
Executions of Fisher and More — Cromwell •*— Duke of Norfolk — 
Anne Boleyn — Fresh Statutes enacting the Penalties of Treason — Act 
giving Proclamations the Force of Law — Government of Edward VI.'s 
Counsellors — Attainder of Lord Seymour and Duke of Somerset — 
Violence of Mary's Reign — The House of Commons recovers Part of 
its independent Power in these two . Reigns — Attempt of the Court to 
strengthen itself by creating new Boroughs — Causes of the High Prero- 
gative of the Tudors — Jurisdiction of the Council of Star-Chamber — 
This not the same with the Court erected by Henry VII. — Influence of 
the Authority of the Star-Chamber in enhancing the Royal Power — 
Tendency of Religious Disputes to the same end Page 1 

CHAPTER II. 

ON THE ENGLISH CHURCH UNDER HENRY VIII., EDWARD VI., 
AND MARY. 

State of Public Opinion as to Religion — Henry VIII.'s Controversy with 
Luther — His Divorce from Catherine — Separation from the Church 
of Rome — Dissolution of Monasteries — Progress of the Reformed 
Doctrine in England — Its Establishment under Edward — Sketch of 



11 CONTENTS OF THE FIRST VOLUME. 

the chief Points of Difference between the two Religions — Opposition 
made by Part of the Nation — Cranmer — His Moderation in intro- 
ducing Changes not acceptable to the Zealots — Mary — Persecution 
under her — Its Effect rather favourable to Protestantism . Page 57 



CHAPTER III. 

ON THE LAWS OF ELIZABETH'S REIGN RESPECTING THE ROMAN 
CATHOLICS. 

Change of Religion on the Queen's Accession — Acts of Supremacy and 
Uniformity — Restraint of Roman Catholic Worship in the first years of 
Elizabeth — Statute of 1562 — Speech of Lord Montague against it — 
This Act not fully enforced — Application of the Emperor in behalf of 
the English Catholics — Persecution of this Body in the ensuing Period 
— Uncertain Succession of the Crown between the Families of Scotland 
and Suffolk — The Queen's unwillingness to decide this, or to marry — 
Imprisonment of Lady Catherine Grey — Mary Queen of Scotland — 
Combination in her favour — Bull of Pius V. — Statutes for the Queen's 
Security — Catholics more rigorously treated — Refugees in the Nether- 
lands — Their Hostility to the Government — Fresh Laws against the 
Catholic Worship — Execution of Campian and others — Defence of the 
Queen by Burleigh — Increased Severity of the Government — Mary — 
Plot in her favour — Her Execution — Remarks upon it — Continued 
Persecution of Roman Catholics — General Observations . . . 108 



CHAPTER IV. 

ON THE LAWS OF ELIZABETH'S REIGN RESPECTING PROTESTANT 
NONCONFORMISTS. 

Origin of the Differences among the English Protestants — Religious Incli- 
nations of the Queen — Unwillingness of many to comply with the 
established Ceremonies — Conformity enforced by the Archbishop — 
Against the Disposition of others — A more determined Opposition, 
about 1570, led by Cartwright — Dangerous Nature of his Tenets — 
Puritans supported in the Commons — and in some measure by the 
Council — Prophesyings — Archbishops Grindal and Whitgift — Conduct 
of the latter in enforcing Conformity — High Commission Court — 
Lord Burleigh averse to Severity — Puritan Libels — Attempt to set up 
a Presbyterian System — House of Commons averse to episcopal Autho- 
rity — Independents liable to severe Laws — Hooker's Ecclesiastical 
Polity — its Character — Spoliation of Church Revenues — General 
Remarks — Letter of Walsingham in Defence of the Queen's Govern- 
ment 170 



CONTENTS OF THE FIRST VOLUME. Xlll 

CHAPTER V. 

ON THE CIVIL GOVERNMENT OF ELIZABETH. 

General Remarks — Defective Security of the Subject's Liberty — Trials 
for Treason and other Political Offences unjustly conducted — Illegal 
Commitments — Remonstrance of Judges against them — Proclamations 
unwarranted by Law — Restrictions on Printing — Martial Law — 
Loans of Money not quite voluntary — Character of Lord Burleigh's 
Administration — Disposition of the House of Commons — Addresses 
concerning the Succession — Difference on this between the Queen and 
Commons in 1566 — Session of 1571 — Influence of the Puritans in 
Parliament — Speech of Mr. Wentworth in 1576 — The Commons 
continue to seek Redress of Ecclesiastical Grievances — also of Mono- 
polies, especially in the Session of 1601 — Influence of the Crown in 
Parliament — Debate on Election of non-resident Burgesses — Assertion 
of Privileges by Commons — Case of Ferrers, under Henry VIII. — 
Other Cases of Privilege — • Privilege of determining contested Elections 
claimed by the House — The English Constitution not admitted to be 
an Absolute Monarchy — Pretensions of the Crown . . . Page 229 

CHAPTER VI. 

ON THE ENGLISH CONSTITUTION UNDER JAME8 I. 

Quiet Accession of James — Question of his Title to the Crown — Legiti- 
macy of the Earl of Hertford's Issue — Early Unpopularity of the King 

■ — Conduct towards the Puritans — Parliament convoked by an irregular 

Proclamation — Question of Fortescue and Goodwin's Election 

Shirley's Case of Privilege — Complaints of Grievances — Commons' 
Vindication of themselves — Session of 1605 — Union with Scotland 

debated — Continual Bickerings between the Crown and Commons 

Impositions on Merchandise without Consent of Parliament — Remon- 
strances against these in Session of 1610 — Doctrine of King's absolute 

power inculcated by Clergy — Articuli Cleri — Cowell's Interpreter 

Renewed Complaints of the Commons — Negotiation for giving up the 

Feudal Revenue — Dissolution of Parliament — Character of James 

Death of Lord Salisbury — Foreign Politics of the Government — Lord 
Coke's Alienation from the Court — Illegal Proclamations — Means 
resorted to in order to avoid the Meeting of Parliament — Parliament 
of 1614 — Undertakers — It is dissolved without passing a single Act 
— Benevolences — Prosecution of Peacham — Dispute about the Juris- 
diction of the Court of Chancery — Case of Commendams — Arbitrary 



XIV CONTENTS OF THE FIRST VOLUME. 

Proceedings in Star-Chamber — Arabella Stuart — Somerset and Over- 
bury — Sir Walter Raleigh — Parliament of 1621 — Proceedings against 
Mompesson and Lord Bacon — Violence in the case of Floyd — Dis- 
agreement between the King and Commons — Their Dissolution after a 
strong Remonstrance — Marriage-Treaty with Spain — Parliament of 
1624 — Impeachment of Middlesex Page 285 



CHAPTER VII. 

ON THE ENGLISH CONSTITUTION FROM THE ACCESSION OF CHARLES I. 
TO THE DISSOLUTION OF HIS THIRD PARLIAMENT. 

Parliament of 1625 — Its Dissolution — Another Parliament called — Pro- 
secution of Buckingham — Arbitrary Proceedings towards the Earls of 
Arundel and Bristol — Loan demanded by the King — several com- 
mitted for Refusal to contribute — They sue for a Habeas Corpus — 
Arguments on this Question, which is decided against them — A Parlia- 
ment called in 1628 — Petition of Right — King's Reluctance to grant 
it ■ — Tonnage and Poundage disputed — King dissolves Parliament — 
Religious Differences — Prosecution of Puritans by Bancroft — Growth 
of High-Church Tenets — Differences as to the Observance of Sunday — 
Arminian Controversy — State of Catholics under James — Jealousy of 
the Court's favour towards them — Unconstitutional Tenets promul- 
gated by the High-Church Party — General Remarks .... 374 



THE 

CONSTITUTIONAL HISTORY 

OF 

ENGLAND 

FROM 

HENRY VII. TO GEORGE II. 



CHAPTEE I. 

OX THE ENGLISH CONSTITUTION FROM HENRY VII. TO MARY. 



Ancient Government of England — Limitations of Royal Authority — Difference 
in the effective Operation of these — Sketch of the state of Society and Law — 
Henry VH. — Statute for the Security of the Subject under a King de facto — 
Statute of Fines — Discussion of its Effect and Motive — Exactions of Money 
under Henry VII. — Taxes demanded by Henry VIII. — Illegal Exactions of 
Wolsey in 1523 and 1525 — Acts of Parliament releasing the King from his 
Debts — A Benevolence again exacted — Oppressive Treatment of Reed — 
Severe and unjust Executions for Treason — Earl of Warwick — Earl of Suffolk 
— Duke of Buckingham — New Treasons created by Statute — Executions 
of Fisher and More — Cromwell — Duke of Norfolk — Anne Boleyn — Fresh 
Statutes enacting the Penalties of Treason — Act giving Proclamations the 
force of Law — Government of Edward Vl.'s Counsellors — Attainder of Lord 
Seymour and Duke of Somerset — Violence of Mary's Reign — The House of 
Commons recovers part of its independent power in these two Reigns — Attempt 
of the Court to strengthen itself by creating new Boroughs — Causes of the High 
Prerogative of the Tudors — Jurisdiction of the Council of Star-Chamber — This 
not the same with the Court erected by Henry VII. — Influence of the Authority 
of the Star-Chamber in enhancing the Royal Power — Tendency of Religious 
Disputes to the same end. 

The government of England, in all times recorded by 
history, has been one of those mixed or limited . . 
monarchies which the Celtic and Gothic tribes government 
appear universally to have established in pre- of En s land - 
ference to the coarse despotism of eastern nations, to 
the more artificial tyranny of Rome and Constantinople, 
or to the various models of republican polity which 
were tried upon the coasts of the Mediterranean Sea. 
It bore the same general features, it belonged, as 

VOL. I. B 



2 POLITY OF ENGLAND AT Chap. I. 

it were, to the same family, as the governments of 
almost every European state, though less resembling, 
perhaps, that of France than any other. But, in the 
course of many centuries, the boundaries which deter- 
mined the sovereign's prerogative and the people's liberty 
or power having seldom been very accurately denned 
by law, or at least by such law as was deemed funda- 
mental and unchangeable, the forms and principles of 
political regimen in these different nations became more 
divergent from each other, according to their peculiar 
dispositions, the revolutions they underwent, or the 
influence of personal character. England, more for- 
tunate than the rest, had acquired in the fifteenth century 
a jnst reputation for the goodness of her laws and the 
security of her citizens from oppression. 

This liberty had been the slow fruit of ages, still 
waiting a happier season for its perfect ripeness, but 
already giving proof of the vigour and industry which 
had been employed in its culture. I have endeavoured, 
in a work of which this may in a certain degree be 
reckoned a continuation, to trace the leading events and 
causes of its progress. It will be sufficient in this place 
briefly to point out the principal circumstances in the 
polity of England at the accession of Henry VII. 

The essential checks upon the royal authority were 
1, , . five in number. — 1. The king could levy no 

Limitations . e , , . ,° ii.ii 

of royal sort of new tax xipon his people, except by the 
authority, grant of his parliament, consisting as well of 
bishops and mitred abbots or lords spiritual, and of 
hereditary peers or temporal lords, who sat and voted 
promiscuously in the same chamber, as of representatives 
from the freeholders of each county, and from the bur- 
gesses of many towns and less considerable places, 
forming the lower or commons' house. 2. The previous 
assent and authority of the same assembly were necessary 
for every new law, whether of a general or temporary 
nature. 3. No man could be committed to prison but 
by a legal warrant specifying his offence ; and by an 
usage nearly tantamount to constitutional right, he must 
be speedily brought to trial by means of regular sessions 
of gaol-delivery. 4. The fact of guilt or innocence on a 
criminal charge was determined in a public court,' and 



Has. VII. THE ACCESSION OF HENRY VII. 3 

in the county where the offence was alleged to have 
occurred, by a jury of twelve men, from whose unanimous 
verdict no appeal could be made. Civil rights, so far 
as they depended on questions of fact, were subject to 
the same decision. 5. The officers and servants of the 
crown, violating the personal liberty or other right 
of the subject, might be sued in an action for damages 
to be assessed by a jury, or, in some cases, were liable 
to criminal process ; nor could they plead any warrant 
or command in their justification, not even the direct 
order of the king. 

These securities, though it would be easy to prove 
that they were all recognised in law, differed Di fference 
much in the degree of their effective operation, in the 
It. may be said of the first, that it was now operation 
completely established. After a long conten- of these, 
tion, the kings of England had desisted for near a 
hundred years from every attempt to impose taxes 
without consent of parliament ; and their recent device 
of demanding benevolences, or half-compulsory gifts, 
though very oppressive, and on that account just 
abolished by an act of the late usurper Eichard, was in 
effect a recognition of the general principle, which it 
sought to elude rather than transgress. 

The necessary concurrence of the two houses of 
parliament in legislation, though it could not be more 
unequivocally established than the former, had in earlier 
times been more free from all attempt at encroachment. 
We know not of any laws that were ever enacted by our 
kings without the assent and advice of their great council ; 
though it is justly doubted whether the representatives 
of the ordinary freeholders, or of the boroughs, had seats 
and suffrages in that assembly during seven or eight 
reigns after the conquest. They were then, however, 
ingrafted upon it with plenary legislative authority ; 
and if the sanction of a statute were required for this 
fundamental axiom, we might refer to one in the 15th 
of Edward II. (1322), which declares that " the matters 
to be established for the estate of the king and of his 
heirs, and for the estate of the realm and of the people, 
should be treated, accorded, and established in parlia- 
ment, by the king, and by the assent of the prelates, 

b2 



4 KING'S AUTHORITY LIMITED. Chap. I. 

earls, and barons, and the commonalty of the realm, 
according as had been before accustomed." a 

It may not be impertinent to remark in this place, 
that the opinion of such as have fancied the royal prero- 
gative under the houses of Plantagenet and Tudor to 
have had no effectual or unquestioned limitations is 
decidedly refuted by the notorious fact that no altera- 
tion in the general laws of the realm was ever made, or 
attempted to be made, without the consent of parliament. 
It is not surprising that the council, in great exigency 
of money, should sometimes employ force to extort it 
from the merchants, or that servile lawyers should be 
found to vindicate these encroachments of power. Im- 
positions, like other arbitrary measures, were particular 
and temporary, prompted by rapacity, and endured 
through compulsion. But if the kings of England had 
been supposed to enjoy an absolute authority, we should 
find some proofs of it in their exercise of the supreme 
function of sovereignty, the enactment of new laws. 
Yet there is not a single instance, from the first dawn of 
our constitutional history, where a proclamation, or 
order of council, has dictated any change, however 
trifling, in the code of private rights, or in the penalties 
of criminal offences. Was it ever pretended that the 
king could empower his subjects to devise their freeholds, 
or to levy fines of their entailed lands ? Has even the 
slightest regulation, as to judicial procedure, or any 
permanent prohibition, even in fiscal law, been ever 
enforced without statute ? There was, indeed, a period, 
later than that of Henry VII., when a control over the 
subject's free right of doing all things not unlawful was 
usurped by means of proclamations. These, however, 
were always temporary, and did not affect to alter the 
established law. But though it would be difficult to 
assert that none of this kind had ever been issued in 
rude and irregular times, I have not observed any 
under the kings of the Plantagenet nanMj which evi- 

B This statute is not even alluded to (1819), p. 282. Nothing can be more 

in Ruffhead's edition, and has been very evident than that it not only establishes 

little noticed by writers on our law or by a legislative declaration the present 

history. It is printed in the late edition, constitution of parliament, but recognises 

published by authority, and is brought it as already standing upon a custom ot 

forward in the First Report of the Ix>rds' some length of time. 
Committee on the Dignity of a Peer 



Hex. VII. STATE OF SOCIETV AND LAW. 5 

dently transgress the boundaries of their legal preroga- 
tive. 

The general privileges of the nation were far more 
secure than those of private men. Great violence was 
often used by the various officers of the crown, for which 
no adequate redress could be procured ; the courts of 
justice were not strong enough, whatever might be their 
temper, to chastise such aggressions ; juries, through in- 
timidation or ignorance, returned such verdicts as were 
desired by the crown ; and, in general, there was perhaps 
little effective restraint upon the government, except in 
the two articles of levying money and enacting laws. 

The peers alone, a small body, varying from about 
fifty to eighty persons, enjoyed the privileges 
of aristocracy ; which, except that of sitting in society 
parliament, were not very considerable, far andlaw - 
less oppressive. All below them, even their children, 
were commoners, and in the eye of the law equal to 
each other. In the gradation of ranks, which, if not 
legally recognised, must still subsist through the neces- 
sary inequalities of birth and wealth, we find the gentry 
or principal landholders, many of them distinguished 
by knighthood, and all by bearing coat armour, but 
without any exclusive privilege ; the yeomanry, or 
small freeholders and fanners, a very numerous and 
respectable body, some occupying their own estates, 
some those of landlords ; the burgesses and inferior 
inhabitants of trading towns ; and, lastly, the peasantry 
and labourers. Of these, in earlier times, a considerable 
part, though not perhaps so very large a proportion as 
is usually taken for granted, had been in the ignominious 
state of villenage, incapable of possessing property but 
at the will of their lords. They had, however, gradually 
been raised above this servitude ; many had acquired a 
stable possession of lands under the name of copyholders ; 
and the condition of mere villenage was become rare. 

The three courts at Westminster — the King's Bench, 
Common Pleas, and Exchequer— consisting each of four 
or five judges, administered justice to the whole king- 
dom ; the first having an appellant jurisdiction over the 
second, and the third being in a great measure confined 
to causes affecting the crown's property. But as all 
suits relating to land, as well as most others, and all 



6 



JUSTICES OF ASSIZE. 



Chap. 1. 



criminal indictments, could only be determined, so far 
as they depended upon oral evidence, by a jury of the 
county, it was necessary that justices of assize and gaol- 
delivery, being in general the judges of the courts at 
Westminster, should travel into each county, commonly 
twice a year, in order to try issues of fact, so called in 
distinction from issues of law, where the suitors, ad- 
mitting all essential facts, disputed the rule applicable to 
them. b By this device, which is as ancient as the reign 



t> The pleadings, as they are called, or 
written allegations of both parties, which 
form the basis of a judicial inquiry, com- 
mence with the declaration, wherein the 
plaintiff states, either specially or in 
some established form, according to the 
nature of the case, that he has a debt to 
demand from, or an injury to be re- 
dressed by, the defendant. The latter, 
in return, puts in his plea; which, if it 
amount to a denial of the facts alleged 
in the declaration, must conclude to the 
country, that is, must refer the whole 
matter to a jury. But if it contain an 
admission of the fact, along with a legal 
justification of it, it is said to conclude to 
the court ; the effect of which is to make 
it necessary for the plaintiff to reply ; in 
which replication he may deny the facts 
pleaded in justification, and conclude to 
the country ; or allege some new matter 
in explanation, to show that they do not 
meet all the circumstances, concluding 
to the court Either party also may de. 
mur, that is, deny that, although true 
and complete as a statement of facte, the 
declaration or plea is sufficient according 
to law to found or repel the plaintiff's 
suit. In the last case it becomes an issue 
in law, and is determined by the judges, 
without the intervention of a jury; it 
being a principle that, by demurring, the 
party acknowledges the truth of all mat- 
ters alleged on the pleadings. But in 
whatever stage of the proceedings either 
of the litigants concludes to the country, 
(which he is obliged to do whenever the 
question can be reduced to a disputed 
fact,) a jury must be impanelled to de- 
cide it by their verdict. These pleadings, 
together with what is called the postea, 
that is, an indorsement by the clerk of 
the court wherein the trial has been, re- 
citing that afterwards the cause was so 
tried, and such a verdict returned, with 



the subsequent entry of the judgment 
itself, form the record. 

This is merely intended to explain 
the phrase in the text, which common 
readers might not clearly understand. 
The theory of special pleading, as it is 
generally called, could not be further 
elucidated without lengthening this note 
beyond all bounds. But it all rests upon 
the ancient maxim : " De facto respon- 
dent juratorcs, de jure judices." Perhaps 
it may be well to add one observation 
— that in many forms of action, and those 
of most frequent occurrence in modern 
times, it is not required to state the legal 
justification on the pleadings, but to give 
it in evidence on the general issue ; that 
is, upon a bare plea of denial. In this 
case the whole matter is actually in the 
power of the jury. But they are gene- 
rally bound in conscience to defer, as to 
the operation of any rule of law, to what 
is laid down on that head by the judge ; 
and when they disregard his directions, 
it is usual to annul the verdict, and grant 
a new trial. There seem to be some dis- 
advantages in the annihilation, as it may 
be called, of written pleadings, by their 
reduction to an unmeaning form, which 
has prevailed in three such important and 
extensive forms of action as ejectment, 
general assumpsit, and trover; both as it 
throws too much power into the hands of 
the jury, and as it almost nullifies the 
appellant jurisdiction, which can only be 
exercised where some error is apparent 
on the face of the record. But great prac- 
tical convenience, and almost necessity, 
has generally been alleged as far more 
than a compensation for these evils. — 
[1827.] [This note is left, but the last 
paragraph is no longer so near the truth 
as it was, in consequence of the altera- 
tions subsequently made by the judges in 
the rules of pleading.] 



Hen. VII. LAWS AGAINST THEFT. 7 

of Henry II., the fundamental privilege of trial by jury, 
and the convenience of private suitors, as well as ac- 
cused persons, were made consistent with an uniform 
jurisprudence ; and though the reference of every legal 
question, however insignificant, to the courts above 
must have been inconvenient and expensive in a still 
greater degree than at present, it had, doubtless, a 
powerful tendency to knit together the different parts 
of England, to check the influence of feudality and 
clanship, to make the inhabitants of distant counties 
better acquainted with the capital city and more ac- 
customed to the course of government, and to impair 
the spirit of provincial patriotism and animosity. The 
minor tribunals of each county, hundred, and manor, 
respectable for their antiquity and for their effect in 
preserving a sense of freedom and justice, had in a great 
measure, though not probably so much as in modem 
times, gone into disuse. In a few counties there still 
remained a palatine jurisdiction, exclusive of the king's 
courts ; but in these the common rules of law and the 
mode of trial by jury were preserved. Justices of the 
peace, appointed out of the gentlemen of each county, 
inquired into criminal charges, committed offenders to 
prison, and tried them at their quarterly sessions, 
according to the same forms as the judges of gaol- 
delivery. The chartered towns had their separate juris- 
diction under the municipal magistracy. 

The laws against theft were severe, and capital 
punishments unsparingly inflicted. Yet they had little 
effect in repressing acts of violence, to which a rude 
and licentious state of manners, and very imperfect 
dispositions for preserving the public peace, naturally 
gave rise. These were frequently perpetrated or insti- 
gated by men of superior wealth and power, above the 
control of the mere officers of justice. Meanwhile the 
kingdom was increasing in opulence ; the English mer- 
chants possessed a large share of the trade of the north ; 
and a woollen manufacture, established in different 
parts of the kingdom, had not only enabled the legis- 
lature to restrain the import of cloths, but had begun to 
supply foreign nations. The population may probably 
be reckoned, without any material error, at about three 
millions, but by no means distributed in the same 



8 FIRST PARLIAMENT OF HENRY VII. CiiAr. I. 

proportions as at present; the northern counties, espe- 
cially Lancashire and Cumberland, being very ill 
peopled, and the inhabitants of London and West- 
minster not exceeding sixty or seventy thousand. 

Such was the political condition of England when 
Henry Tudor, the only living representative of the 
house of Lancaster, though incapable, by reason of the 
illegitimacy of the ancestor who connected him with it, 
of asserting a just right of inheritance, became master 
of the throne by the defeat and death of his competitor 
at Bosworth, and by the general submission of 
enry ' the kingdom. He assumed the royal title im- 
mediately after his victory, and summoned a parlia- 
ment to recognise or sanction his possession. The 
circumstances were by no means such as to offer an 
auspicious presage for the future. A subdued party had 
risen from the ground, incensed by proscription and 
elated by success ; the late battle had in effect been a 
contest between one usurper and another ; and England 
had little better prospect than a renewal of that des- 
perate and interminable contention which pretences of 
hereditary right have so often entailed upon nations. 

A parliament called by a conqueror might be pre- 
sumed to be itself conquered. Yet this assembly did 
not display so servile a temper, or so much of the 
Lancastrian spirit, as might be expected. It was " or- 
dained and enacted by the assent of the lords, and at 
the request of the commons, that the inheritance of the 
crowns of England and France, and all dominions 
appertaining to them, should remain in Henry VII. 
and the heirs of his body for ever, and in none other." d 
Words studiously ambiguous, which, while they avoid 
the assertion of an hereditary right that the public 
voice repelled, were meant to create a parliamentary 

c The population for 1485 is estimated rate the population somewhat higher. — 

by comparing a sort of census in 1378, 1841.] 

when the inhabitants of the realm seem d Rot. Pari. vi. 270. But the pope's 

to have amounted to about 2,300,000, bull of dispensation for the king's mar- 

with one still more loose under Eliza- riage speaks of the realm of England as 

beth, in 1588, which would give about "jure h«reditario ad te legitimum in illo 

4,400,000. Making some allowance prasdecessorum tuorum successorem per- 

for the more rapid increase in the tinens.'' Rymer, xii. 294. And all 

latter period, three millions at the ac- Henry's own instruments claim an here- 

cession of Henry VII. is probably not ditary right, of which many proofs op- 

too low an estimate. — [I now incline to pear in Rymer. 



Hen. VII. STATUTE FOR SECURITY OF SUBJECT. 9 

title, before which, the pretensions of lineal descent 
were to give way. They seem to make Henry the 
stock of a new dynasty. But, lest the spectre of inde- 
feasible right should stand once more in arms on the 
tomb of the house of York, the two houses of parlia- 
ment showed an earnest desire for the king's marriage 
with the daughter of Edward IV., who, if she should 
bear only the name of royalty, might transmit an undis- 
puted inheritance of its prerogatives to her posterity. 

This marriage, and the king's great vigilance in 
guarding his crown, caused his reign to pass statute for 
with considerable reputation, though not with- tl 2 e t ^ ecuI Jj jr 
out disturbance. He had to learn, by the ex- ject under a 
traordinary though transient success of two im- &"&* J ** - 
postors, that his subjects were still strongly infected 
with the prejudice which had once overthrown the 
family he claimed to represent. Nor could those who 
served him be exempt from apprehensions of a change 
of dynasty, which might convert them into attainted 
rebels. The state of the nobles and gentry had been 
intolerable during the alternate proscriptions of Henry 
VI. and Edward IV. Such apprehensions led to a very 
important statute in the eleventh year of this king's 
reign, intended, as far as law could furnish a prospective 
security against the violence and vengeance of factions, 
to place the civil duty of allegiance on a just and rea- 
sonable foundation, and indirectly to cut away the dis- 
tinction between governments de jure and de facto. It 
enacts, after reciting that subjects by reason of their 
allegiance are bound to serve their prince for the time 
being against every rebellion and power raised against 
him, that " no person attending upon the king and 
sovereign lord of this land for the time being, and doing 
him true and faithful service, shall be convicted of high 
treason, by act of parliament or other process of law, 
nor suffer any forfeiture or punishment ; but that every 
act made contrary to this statute should be void and of 
no effect." e The endeavour to bind future parliaments 
was of course nugatory ; but the statute remains an un- 
questionable authority for the constitutional maxim that 
possession of the throne gives a sufficient title to the 

e Stat. 11 H. 7, c 1. 



10 AUTHORITY OF THE CROWN. Chap. I. 

subject's allegiance, and justifies his resistance of those 
who may pretend to a better right. It was much re- 
sorted to in argument at the time of the revolution and 
in the subsequent period.' 

It has been usual to speak of this reign as if it formed 
a great epoch in our constitution ; the king having by 
his politic measures broken the power of the barons who 
had hitherto withstood the prerogative, while the com- 
mons had not yet risen from the humble station which 
they were supposed to have occupied. I doubt, how- 
ever, whether the change was quite so precisely refer- 
able to the time of Heniy VII., and whether his policy 
has not been somewhat over-rated. In certain respects 
his reign is undoubtedly an era in our history. It began 
in revolution and a change in the line of descent. It 
nearly coincides, which is more material, with the com- 
mencement of what is termed modern history, as distin- 
guished from the middle ages, and with the memorable 
events that have led us to make that leading distinction, 
especially the consolidation of the great European 
monarchies, among which England took a conspicuous 
station. But, relatively to the main subject of our in- 
quiry, it is not evident that Henry VII. carried the 
authority of the crown much beyond the point at which 
Edward IV. had left it. The strength of the nobility 
had been grievously impaired by the bloodshed of the 
civil wars, and the attainders that followed them. 
From this cause, or from the general intimidation, we 
find, as I have observed in another work, that no laws 
favourable to public liberty, or remedial with respect to 
the aggressions of power, were enacted, or (so far as 
appears) even proposed in parliament, during the reign 
of Edward IV. ; the first, since that of John, to which such 
a remark can be applied. The commons, who had not 
always been so humble and abject as smatterers in his- 
tory are apt to fancy, were by this time much degene- 
rated from the spirit they had displayed under Edward 

f Blackstone (vol. iv. c. 6) has some Blackstone calls in question, is right ; 

rather perplexed reasoning on this sta- and that he is himself wrong in pretend- 

tute, leaning a little towards the de jure ing that " the statute of Henry VII. docs 

doctrine, and at hest confounding moral by no means command any opposition to 

with legal obligations. In the latter sense, a king de jure, but excuses the obedience 

whoever attends to the preamble of the paid to a king de facto." 
act will see that Hawkins; whose opiuion 



Hen. VII. STATUTE OF FINES. 11 

III. and Eichard II. Thus the founder of the line of 
Tudor came, not certainly to an absolute, but a vigorous 
prerogative, which his cautious, dissembling temper and 
close attention to business were well calculated to ex- 
tend. 

The laws of Henry VII. have been highly praised by 
Lord Bacon as " deep and not vulgar, not statute of 
made upon the spur of a particular occasion for Fine8 - 
the present, but out of providence for the future, to make 
the estate of his people still more and more happy, after 
the manner of the legislators in ancient and heroical 
times." But when we consider how very few kings or 
statesmen have displayed this prospective wisdom and 
benevolence in legislation, we may hesitate a little to 
bestow so rare a praise upon Henry. Like the laws of 
all other times, his statutes seem to have had no further 
aim than to remove some immediate mischief, or to pro- 
mote some particular end. One, however, has been 
much celebrated as an instance of his sagacious policy 
and as the principal cause of exalting the royal authority 
upon the ruins of the aristocracy ; 1 mean the statute of 
Fines (as one passed in the fourth year of his reign is 
commonly called), which is supposed to have given the 
power of alienating entailed lands. But both the inten- 
tion and effect of this seem not to have been justly ap- 
prehended. 

In the first place, it is remarkable that the statute of 
Henry VII. is merely a transcript, with very _. 
little variation, from one of Eichard III., which of its effect 
is actually printed in most editions. It was andmotlve - 
re-enacted, as we must presume, in order to obviate any 
doubt, however ill grounded, which might hang upon the 
validity of Eichard's laws. Thus vanish at once into air 
the deep policy of Henry VII. and his insidious 
schemes of leading on a prodigal aristocracy to its ruin. 
It is surely strange that those who have extolled this 
sagacious monarch for breaking the fetters of landed 
property (though many of them were lawyers) should 
never have observed that whatever credit might be due 
for the innovation should redound to the honour of the 
unfortunate usurper. But Eichard, in truth, had no 
leisure for such long-sighted projects of strengthening a 
throne for his posterity which he could not preserve for 



12 STATUTE DE DONIS. Chap. I. 

himself. His law, and that of his successor, had a 
different object in view. 

It would be useless to some readers, and perhaps dis- 
gusting to others, especially in the very outset of this 
work, to enter upon the history of the English law as to 
the power of alienation. But I cannot explain the pre- 
sent subject without mentioning that by a statute in the 
reign of Edward I., commonly called de donis condi- 
tionalibus, lands given to a man and the heirs of his body, 
with remainder to other persons, or reversion to the 
donor, could not be alienated by the possessor for the 
time being, either from his own issue or from those who 
were to succeed them. Such lands were also not sub- 
ject to forfeiture for treason or felony ; and more, 
perhaps, upon this account than from any more enlarged 
principle, these entails were not viewed with favour by 
the courts of justice. Several attempts were successfully 
made to relax their strictness ; and finally, in the reign 
of Edward IV., it was held by the judges in the famous 
case of Taltarum, that a tenant in tail might, by what is 
called suffering a common recovery, that is, by means 
of a fictitious process of law, divest all those who were 
to come after him of their succession, and become 
owner of the fee simple. Such a decision was certainly 
far beyond the sphere of judicial authority. The legis- 
lature, it was probably suspected, would not have con- 
sented to infringe a statute which they reckoned the 
safeguard of their families. The law, however, was laid 
down by the judges ; and in those days the appellant 
jurisdiction of the house of lords, by means of which the 
aristocracy might have indignantly reversed the insidi- 
ous decision, had gone wholly into disuse. It became 
by degrees a fundamental principle, that an estate in 
tail can be barred by a common recovery ; nor is it 
possible by any legal subtlety to deprive the tenant of 
this control over his estate. Schemes were, indeed, 
gradually devised, which to a limited extent have re- 
strained the power of alienation ; but these do not 
belong to our subject. 

The real intention of these statutes of Eichard and 
Henry was not to give the tenant in tail a greater power 
over his estate (for it is by no means clear that the 
words enable him to bar his issue by levying a fine ; 



Hex. VII. EXACTIONS OF HENRY VII. 13 

and when a decision to that effect took place long after- 
wards (19 H. 8), it was with such difference of opinion 
that it was thought necessary to confirm the interpreta- 
tion by a new act of parliament ;) but rather, by estab- 
. lishing a short term of prescription, to put a check 
on the suits for recovery of lands, which, after times 
of so much violence and disturbance, were naturally 
springing up in the courts. It is the usual policy of 
governments to favour possession ; and on this principle 
the statute enacts that a fine levied with proclamations 
in a public court of justice shall after five years, except 
in particular circumstances, be a bar to all claims upon 
lands. This was its main scope ; the liberty of aliena- 
tion was neither necessary, nor probably intended to be 
given. 8 

The two first of the Tudors rarely experienced oppo- 
sition but when they endeavoured to levy Exactions of 
money. Taxation, in the eyes of their sub- Henry vn. 
jects, was so far from being no tyranny, that it seemed 
the only species worth a complaint. Henry VII. ob- 
tained from his first parliament a grant of tonnage and 
poundage during life, according to several precedents 
of former reigns. But when general subsidies were 
granted, the same people, who would have seen an inno- 
cent man led to prison or the scaffold with little atten- 
tion, twice broke out into dangerous rebellions ; and as 
these, however arising from such immediate discontent, 
were yet a good deal connected with the opinion of 
Henry's usurpation and the claims of a pretender, it was 
a necessary policy to avoid too frequent imposition of 
burdens upon the poorer classes of the community.' 1 

6 For these observations on the sta- The principle of breaking down the 

tute of Fines I am principally indebted statute de donis was so little established, 

to Reeves's History of the English Law or consistently acted upon, in this reign, 

(iv. 133), a work, especially in the lat- that in 11 H. 7 the judges held that 

ter volumes, of great research and judg- the donor of an estate-tail might restrain 

ment; a continuation of which, in the the tenant from suffering a recovery, 

same spirit and with the same qualities. Id. p. 159, from the Year-book, 

would be a valuable accession not only h It is said by the biographer of Sir 

to the lawyer's but philosopher's library. Thomas More that parliament refused 

That entails had been defeated by means the king a subsidy in 1502, which he de- 

of a common recovery before the statute, manded on account of the marriage of 

had been remarked by former writers, his daughter Margaret, at the advice of 

and is indeed obvious; but the subject More, then but twenty-two years old. 

was never put in so clear a light as by " Forthwith Mr. Tyler, one of the privy 

Mr. Reeves. chamber, that was then present, resorted 



14 ARCHBISHOP MORTON. Chap. I. 

He had recourse accordingly to the system of benevo- 
lences, or contributions apparently voluntary, though in 
fact extorted from his richer subjects. These, having 
become an intolerable grievance under Edward IV., were 
abolished in the only parliament of Richard III. with 
strong expressions of indignation. But in the seventh 
year of Henry's reign, when, after having with timid 
and parsimonious hesitation suffered the marriage of 
Anne of Brittany with Charles VIII., he was compelled 
by the national spirit to make a demonstration of war, 
he ventured to try this unfair and unconstitutional 
method of obtaining aid ; which received afterwards too 
much of a parliamentary sanction by an act enforcing the 
payment of arrears of money which private men had 
thus been prevailed upon to promise. 1 The statute, in- 
deed, of Richard is so expressed as not clearly to forbid 
the solicitation of voluntary gifts, which of course ren- 
dered it almost nugatory. 

Archbishop Morton is famous for the dilemma which 
he proposed to merchants and others whom he solicited 
to contribute. He told those who lived handsomely 
that their opulence was manifest by their rate of 
expenditure. Those, again, whose course of living was 
less sumptuous, must have grown rich by their economy. 
Either class could well afford assistance to their sove- 
reign. This piece of logic, unanswerable in the mouth 
of a privy councillor, acquired the name of Morton's 
fork. Henry doubtless reaped great profit from these 
indefinite exactions, miscalled benevolences. But, in- 
satiate of accumulating treasure, he discovered other 
methods of extortion, still more odious, and possibly 
more lucrative. Many statutes had been enacted in 
preceding reigns, sometimes rashly or from temporary 
motives, sometimes in opposition to prevailing usages 
which they could not restrain, of which the pecuniary 
penalties, though exceedingly severe, were so little 

to the king, declaring that a beardless by Roper. 

boy, called More, had done more harm i Stat. 11 H. 1, c. 10. Bacon says the 
than all the rest, for by his means all the benevolence was granted by act of par- 
purpose is dashed." This of course dis- liament, which Hume shows to be a mis- 
pleased Henry, who would not however, take. The preamble of 11 H. 1 recites 
he says, " infringe the ancient liberties it to have been " granted by divers of 
of that house, which would have been your subjects severally ;" and contains a 
odiously taken." Wordsworth's Eccles. provision that no heir shall be charged 
Biography, ii. 66. This story is also told on account of his ancestor's promise. 



Hex. VII. EJ1PS0N AND DUDLEY. 15 

enforced as to have lost their terror. These his ministers 
raked out from oblivion ; and, prosecuting such as could 
afford to endure the law's severity, filled his treasury 
with the dishonourable produce of amercements and 
forfeitures. The feudal rights became, as indeed they 
always had been, instrumental to oppression. The 
lands of those who died without heirs fell back to the 
crown by escheat. It was the duty of certain officers in 
every county to look after its rights. The king's title 
was to be found by the inquest of a jury, summoned at 
the instance of the escheator, and returned into the ex- 
chequer. It then became a matter of record, and could 
not be impeached. Hence the escheators taking hasty 
inquests, or sometimes falsely pretending them, defeated, 
the right heir of his succession. Excessive fines were 
imposed on granting livery to the king's wards on their 
majority. Informations for intrusions, criminal indict- 
ments, outlawries on civil process, in short, the whole 
course of justice, furnished pretences for exacting 
money; while a host of dependants on the court, 
suborned to play their part as witnesses, or even as 
jurors, rendered it hardly possible for the most innocent 
to escape these penalties. Empson and Dudley are 
notorious as the prostitute instruments of Henry's ava- 
rice in the later and more unpopular years of his reign ; 
but they dearly purchased a brief hour of favour by an 
ignominious death and perpetual infamy. k The avarice 
of Henry VII., as it rendered his government unpopular, 
which had always been penurious, must be deemed a 
drawback from the wisdom ascribed to him j though by 
his good fortune it answered the end of invigorating his 
power. By these fines and forfeitures he impoverished 
and intimidated the nobility. The earl of Oxford com- 
pounded, by the payment of 15,000 pounds, for the 
penalties he had incurred by keeping retainers in 
livery ; a practice mischievous and illegal, but too cus- 
tomary to have been punished before this reign. Even 
the king's clemency seems to have been influenced by 
the sordid motive of selling pardons ; and it has been 
shown that he made a profit of every office in his court, 
and received money for conferring bishoprics.™ 

k Hall, 502. 628, from a manuscript document A 

m Turner's History of England, iii. vast number of persons paid lines for 



1G ACCESSION OF HENRY VIII. Chap. I. 

It is asserted by early writers, though perhaps only 
on conjecture, that he left a sum, thus amassed, of no 
less than 1,800,000 pounds at his decease. This treasure 
was soon dissipated by his successor, who had recourse 
to the assistance of parliament in the very first year of 
his reign. The foreign policy of Henry VIII. , far un- 
like that of his father, was ambitious and enterprising. 
No former king had involved himself so frequently in 
the labyrinth of continental alliances. And, if it were 
necessary to abandon that neutrality which is generally 
the most advantageous and laudable course, it is certain 
that his early undertakings against France were more 
consonant to English interests, as well as more honourable, 
than the opposite policy, which he pursued after the 
battle of Pavia. The campaigns of Henry in France and 
Scotland displayed the valour of our English infantry, 
seldom called into action for fifty years before, and con- 
tributed with other circumstances to throw a lustre over 
his reign which prevented most of his contemporaries 
from duly appreciating his character. But they naturally 
drew the king into heavy expenses, and, together with 
his profusion and love of magnificence, rendered his 
government very burthensome. At his accession, how- 
ever, the rapacity of his father's administration had ex- 
cited such universal discontent, that it was found expe- 
dient to conciliate the nation. An act was passed in 
his first parliament to correct the abuses that had 
prevailed in finding the king's title to lands by escheat." 
The same parliament repealed the law of the late reign 
enabling justices of assize and of the peace to determine 
all offences, except treason and felony, against any sta- 
tute in force, without a jury, tipon information in the 
king's name. This serious innovation had evidently been 
prompted by the spirit of rapacity, which probably some 
honest juries had shown courage enough to withstand. It 
was a much less laudable concession to the vindictive tem- 
per of an injured people, seldom unwilling to see bad 
methods employed in punishing bad men, that Empson 
and Dudley, who might perhaps by stretching the pre- 
rogative have incurred the penalties of a misdemeanor, 

their share in the western rebellion of History, i. 38. 

1497, from 2001. down to 20*. Hall, 486. n 1 H. 8, c. 8. 

Ellis's Letters illustrative of English ° 11 H. 7, c 3. Eep. 1 H. S, c. 6. 



Hex. VIII. WAR TAXES. 17 

were put to death on a frivolous charge of high trea- 
son . p 

The demands made by Henry VIII. on parliament were 
considerable, both in frequency and amount. T 
Notwithstanding the servility of those times it manded by 
sometimes attempted to make a stand against HenrvV111 - 
these inroads upon the public purse. Wolsey came into 
the house of commons in 1523, and asked for 800,000/., 
to be raised by a tax of one-fifth upon lands and goods, 
in order to prosecute the war just commenced against 
France. Sir Thomas More, then speaker, is said to have 
urged the house to acquiesce.* 1 But the sum demanded 
was so much beyond any precedent that all the inde- 
pendent members opposed a vigorous resistance. A 
committee was. appointed to remonstrate with the car- 
dinal, and to set forth the impossibility of raising such a 
subsidy. It was alleged that it exceeded all the current 
coin of the kingdom. Wolsey, after giving an uncivil 
answer to the committee, came down again to the house, 
on pretence of reasoning with them, but probably with 
a hope of carrying his end by intimidation. They re- 
ceived him, at More's suggestion, with all the train of 
attendants that usually encircled the haughtiest subject 
who had ever been known in England. But they made 
no other answer to his harangue than that it was their 
usage to debate only among themselves. These debates 
lasted fifteen or sixteen days. A considerable part of the 
commons appears to have consisted of the king's house- 
hold officers, whose influence, with the utmost difficulty, 
obtained a grant much inferior to the cardinal's requisi- 

P They were convicted by a jury, and speech, which he seems to ascribe to 

afterwards attainted by parliament, but More, arguing more acquaintance with 

not executed for more than a year after sound principles of political economy 

the king's accession. If we may believe than was usual in the supposed speaker's 

Holingshed, the council at Henry VIU.'s age, or even in that of the writer. But 

accession made restitution to some who it is more probable that this is of his own 

had been wronged by the extortion of the invention. He has taken a similar li- 

late reign ;— a singular contrast to their berty on another occasion, throwing his 

subsequent proceedings! This, indeed, own broad notions of religion into an 

had been enjoined by Henry VII.'s will, imaginary speech of some unnamed mem- 

But he had excepted from this restitution ber of the commons, though manifestly 

" what had been done by the course and unsuited to the character of the times, 

order of our laws ;" which, as Mr. Astle That More gave satisfaction to Wolsey 

observes, was the common mode of his by his conduct in the chair, appears by 

oppressions. a letter of the latter to the king, in Slate 

1 Lord Herbert inserts an acute Papers, temp. H. 8, p. 124. 
VOL. I. C 



18 



ILLEGAL EXACTIONS OF WOLSET. 



Chap. I. 



tion, and payable by instalments in four years. But 
Wolsey, greatly dissatisfied with this imperfect obe- 
dience, compelled the people to pay up the whole subsidy 
at once/ 

No parliament was assembled for nearly seven years 
illegal ex- a ^ ter this ti me - Wolsey had already resorted 
actions of to more arbitrary methods of raising money 
i522and ln by loans and benevolences. 9 The year before 
1525. this debate in the commons he borrowed twenty 



r Roper's Life of More. Hall, 656, 
612. This chronicler, who wrote under 
Edward VI., is our best witness for the 
events of Henry's reign. Grafton is so 
literally a copyist from him, that it was 
a great mistake to republish this part of 
bis chronicle in the late expensive, and 
therefore incomplete, collection ; since he 
adds no one word, and omits only a few 
ebullitions of Protestant zeal which he 
seems to have considered too warm. 
Holingshed, though ' valuable, is later 
than Hall. Wolsey, the latter observes, 
gave offence to the commons by des- 
canting on the wealth and luxury of the 
nation, " as though he had repined or 
disclaimed that any man should fare well, 
or be well clothed, but himself." 

But the most authentic memorial of 
what passed on this occasion has been 
preserved in a letter from a member of 
the commons to the earl of Surrey (soon 
after duke of Norfolk), at that time the 
king's lieutenant in the north. 

" Please it your good lordships to un- 
derstand, that sithence the beginning of 
the parliament there hath been the 
greatest and sorest hold in the lower 
house, for the payment of two shillings' 
of the pound, that ever was seen, I think, 
in any parliament. This matter hath 
been debated and beaten fifteen or six- 
teen days together. The highest neces- 
sity alleged on the king's behalf to us 
that ever was heard of; and, on the con- 
trary, the highest poverty confessed, as 
well by knights, esquires, and gentlemen 
of every quarter, as by the commoners, 
citizens, and burgesses. There hath been 
such hold that the house was like to have 
been dissevered; that is to say, the 
knights being of the king's council, the 
king's servants and gentlemen of the one 
party ; which in so long time were spoken 



with, and made to see, yea, it may fortune, 
contrary to their heart, will, and con- 
science. Thus hanging this matter, yes- 
terday the more part being the king's ser- 
vants, gentlemen, were there assembled ; 
and so they, being the more part, willed 
and gave to the king two shillings of the 
pound of goods or lands, the best to be 
taken for the king. All lands to pay 
two shillings of the pound for the laity, 
to the highest The goods to pay two 
shillings of the pound, for twenty pound 
upward; and from forty shillings of 
goods to twenty pound to pay sixteen 
pence of the pound ; and under forty 
shillings, every person to pay eight 
pence. This to be paid in two years. 
I have heard no man in my life that can 
remember that ever there was given to 
any one of the king's ancestors half so 
much at one graunt. Nor, I think, there 
was never such a president seen before, 
this time. I beseeke Almighty God it 
may be well and peaceably levied, and 
surely payd unto the king's grace, with- 
out grudge, and especially without loos- 
ing the good will and true hearts of his 
subjects, which I reckon a far greater 
treasure for the king than gold and silver. 
And the gentlemen that must take pains 
to levy this money among the king's 
subjects, I think, shall have no little busi- 
ness about the same." Strype's Eccles. 
Memorials, vol. i. p. 49. This is also 
printed in Ellis's Letters illustrative of 
English History, i. 220. 

8 I may notice here a mistake of Mr. 
Hume and Dr. Lingard. They assert 
Henry to have received tonnage and 
poundage several years before it was 
vested in him by the legislature. But it 
was granted by his first parliament, stat. 
1 H. 8, c. 20, as will be found even in 
Ruffhead's table of contents, though not 



Hex. VIII. ILLEGAL EXACTIONS OF WOLSEY. 



19 



thousand pounds of the city of London ; yet so insufficient 
did that appear for the king's exigencies, that within 
two months commissioners were appointed throughout 
the kingdom to swear eveiy man to the value of his 
possessions, requiring a rateable part according to such 
declaration. The clergy, it is said, were expected to 
contribute a fourth ; but I believe that benefices above 
ten pounds in yearly value were taxed at one-third. 
Such unparalleled violations of the clearest and most 
important privilege that belonged to Englishmen excited 
a general apprehension.' Fresh commissioners, however, 
were appointed in 1525, with instructions to demand 
the sixth part of every man's substance, payable in 
money, plate, or jewels, according to the last valuation." 



in the body of his volume ; and the act 
is of course printed at length in the great 
edition of the statutes. That which pro- 
bably by its title gave rise to the error, 
6 H. 8, c. 13, has a different object 

t Hall, 645. This chronicler says 
the laity were assessed at a tenth part. 
But this was only so for the smaller 
estates, namely, from 20l. to 300L; for 
from 300i. to 1000Z. the contribution 
demanded was twenty marks for each 
1002., and for an estate of 10002. two 
hundred marks, and so in proportion 
upwards. — MS. Instructions to com- 
missioners, penes auctorem. This was, 
" upon sufficient promise and assurance, 
to be repaid unto them upon such grants 
and contributions as shall be given and 
granted to his grace at his next parlia- 
ment." lb.— "And they shall practise 
by all the means to them possible that 
such sums as shall be so granted by the 
way of loan, be forthwith levied and 
paid, or the most part, or at the least the 
moiety thereof, the same to be paid in as 
brief time after as they can possibly per- 
suade and induce them unto; showing 
unto them that, for the sure ' pa}'meut 
thereof, they shall have writings deli- 
vered unto them under the king's privy 
seal by such person or persons as shall 
be deputed by the king to receive the said 
loan, after the form of a minute to be 
shown unto them by the said commis- 
sioners, the tenor whereof is thus : We, 
Henry VIII., by the grace of God, King 
of England and of France, Defender of 



Faith, and Lord of Ireland, promise 
by these presents truly to content and 
repay unto our trusty and well-beloved 

subject, A. B., the sum of , 

which he hath lovingly advanced unto 
us by way of loan, for defence of our 
realm, and maintenance of our wars 
against France and Scotland : In witness 
whereof we have caused our privy seal 

hereunto to be set and annexed the 

day of ^— , the fourteenth year of our 
reign."— lb. The rate fixed on the clergy 
I collect by analogy from that imposed 
in 1525, which I find in another manu- 
script letter. 

u A letter in my possession from the 
duke of Norfolk to Wolsey, without the 
date of the year, relates, I believe, to 
this commission of 1525, rather than that 
of 1522; it being dated on the 10th 
April, which appeal's from the contents 
to have been before Easter; whereas 
Easter did not fall beyond that day in 
1523 or 1524, but did so in 1525 ; and 
the first commission, being of the four- 
teenth year of the king's reign, must 
have sat later than Easter, 1522. He 
informs the cardinal that' from twenty 
pounds upwards there were not twenty 
in the county of Norfolk who had not 
consented. "So that I see great likeli- 
hood that this grant shall be much more 
than the loan was." It was done, how- 
ever, very reluctantly, as he confesses ; 
" assuring your grace that they have not 
granted the same without shedding of 
many salt tears, only for doubt how to 

c2 



20 



ILLEGAL EXACTIONS OF WOLSEY. 



Chap. I. 



This demand Wolsey made in person to the mayor and 
chief citizens of London. They attempted to remon- 
strate, hut were warned to heware, lest " it might for- 



find money to content the king's high- 
ness." The resistance went farther than 
the duke thought fit to suppose; for in 
a very short time the insurrection of the 
common people took place in Suffolk. In 
another letter from him and the duke of 
Suffolk to the cardinal, they treat this 
rather lightly, and seem to object to the 
remission of the contribution. 

This commission issued soon after the 
news of the battle of Pavia arrived. The 
pretext was the king's intention to lead 
an army into France. Warham wrote 
more freely than the duke of Norfolk as 
to the popular discontent, in a letter to 
Wolsey, dated April 5. " It hath been 
showed me in a secret manner of my 
friends, the people sore grudgeth and 
murmureth, and speaketh cursedly among 
themselves, as far as they dare, saying 
that they shall never have rest of pay- 
ments as long as some liveth, and that 
they had better die than to be thus con- 
tinually handled, reckoning themselves, 
their children, and wives, as despoulit, 
and not greatly caring what they do, or 
what becomes of them. * * * Further I 
am informed that there is a grudge newly 
now resuscitate and revived in the minds 
of the people ; for the loan is not repaid 
to them upon the first receipt of the grant 
of parliament, as it was promised them 
by the commissioners, showing them the 
king's grace's instructions, containing the 
same, signed with his grace's own hand 
in summer, that they fear not to speak, 
that they be continually beguiled, and no 
promise is kept unto them ; and there- 
upon some of them suppose that if this 
gift and grant be once levied, albeit the 
king's grace go not beyond the sea, yet 
nothing shall be restored again, albeit 
they be showed the contrary. And gene- 
rally it is reported- unto me, that for the 
most part every man saith he will be 
contented if the king's grace have as 
much as he can spare, but verily many 
say they be not able to do as they be 
required. And many denieth not but 
they will give the king's grace according 
to their power, but they will not anywise 
give at other men's appointments, which 



knoweth not their needs. * * * * I have 
heard say, moreover, that when the people 
be commanded to make fires and tokens 
of joy for the taking of the French king, 
divers of them have spoken that they 
have more cause to weep than to rejoice 
thereat. And divers, as it hath been 
showed me secretly, have wished openly 
that the French king were at his liberty 
again, so as there were n good peace, 
and the king should not attempt to win 
France, the winning whereof should be 
more chargeful to England than profit- 
able, and the keeping thereof much more 
chargeful than the winning. Also it hath 
been told me secretly that divers have 
recounted and repeated what infinite 
sums of money the king's grace hath 
spent already in invading of France, once 
in his own royal person, and two other 
sundry times by his several noble cap- 
tains, and little or nothing in comparison 
of his costs hath prevailed; insomuch 
that the king's grace at this hour hath 
not one foot of land more in France than 
his most noble father had, which lacked 
no riches or wisdom to win the kingdom 
of France, if he had thought it expe- 
dient" The archbishop goes on to ob- 
serve, rather oddly, that " he would that 
the time had suffered that this practising 
with the people for so great sums might 
have been spared till the cuckoo time 
and the hot weather (at which time mad 
brains be wont to be most busy) had been 
overpassed." 

Warham dwells, in another letter, on 
the great difficulty the clergy had in 
making so large a payment as was re- 
quired of them, and their unwillingness 
to be sworn as to the value of their goods. 
The archbishop seems to have thought it 
passing strange that people would be so 
wrongheaded about their money. "I 
have been," he says, " in this shire twenty 
years and above, and as yet I have not 
seen men but would be conformable to 
reason and would be induced to good order 
till this time ; and what shall cause them 
now to fall into these wilful and indis- 
creet ways I cannot tell, except poverty 
and decay of substance be the cause of it." 



Hen. VIII. ILLEGAL EXACTIONS OF WOLSEY. 21 

tune to cost some their heads." Some were sent to prison 
for hasty words, to which the smart of injury excited 
them. The clergy, from whom, according to usage, a 
larger measure of contribution was demanded, stood upon 
their privilege to grant their money only in convocation, 
and denied the right of a king of England to ask any 
man's money without authority of parliament. The rich 
and poor agreed in cursing the cardinal as the subverter 
of their laws and liberties ; and said, " if men should 
give their goods by a commission, then it would be worse 
than the taxes of France, and England should be bond, 
and not free." x Nor did their discontent terminate in 
complaints. The commissioners met with forcible oppo- 
sition in several counties, and a serious insurrection 
broke out in Suffolk. So menacing a spirit overawed 
the proud tempers of Henry and his minister, who found 
it necessary not only to pardon all those concerned in 
these tumults, but to recede altogether upon some fri- 
volous pretexts from the illegal exaction, revoking the 
commissions, and remitting all sums demanded under 
them. They now resorted to the more specious request 
of a voluntary benevolence. This also the citizens of 
London endeavoured to repel, by alleging the statute of 
Eichard III. But it was answered, that he was an 
usurper, whose acts did not oblige a lawful sovereign. It 
does not appear whether or notWolsey was more successful 
in this new scheme ; but, generally, rich individuals 
had no remedy but to compound with the government. 

No very material attempt had been made since the 
reign of Edward III. to levy a general imposition with- 
out consent of parliament, and in the most remote and 
irregular times it would be difficult to find a precedent 
for so universal and enormous an exaction ; since tal- 
lages, however arbitrary, were never paid by the barons 
or freeholders, nor by their tenants ; and the aids to 
which they were liable were restricted to particular 
cases. If Wolsey, therefore, could have procured the 
acquiescence of the nation under this yoke, there would 
probably have been an end of parliaments for all ordinaiy 
purposes, though, like the states general of France, they 

x Hall, 696. These expressions, and the writers of the sixteenth century do 
numberless others might be found, show not speak of our own government as more 
the fallacy of Hume's hasty assertion that free than that of France. 



22 ACTS RELEASING THE KING Chap. I. 

might still be convoked to give weight and security 
to great innovations. We cannot, indeed, doubt that 
the unshackled condition of his friend, though rival, 
Francis L, afforded a mortifying contrast to Henry. 
Even under his tyrannical administration there was 
enough to distinguish the king of a people who submitted 
in murmuring to violations of their known rights from 
one whose subjects had almost forgotten that they ever 
possessed any. But the courage and love of freedom 
natural to the English commons, speaking in the hoarse 
voice of tumult, though very ill supported by their 
superiors, preserved us in so great a peril. y 

If we justly regard with detestation the memory of 
. , those ministers who have aimed at subverting 
parliament the liberties of their country, we shall scarcely 
theking approve the partiality of some modern his- 
from his torians towards cardinal Wolsey ; a partiality, 
too, that contradicts the general opinion of his 
contemporaries. Haughty beyond comparison, negligent 
of the duties and decorums of his station, profuse as well 
as rapacious, obnoxious alike to his own order and to 
the laity, his fall had long been secretly desired by the 
nation, and contrived by his adversaries. His generosity 
and magnificence seem rather to have dazzled succeeding 
ages than his own. But, in fact, his best apology is the 
disposition of his master. The latter years of Henry's 
reign were far more tyrannical than those during which 
he listened to the counsels of Wolsey ; and though this 
was principally owing to the peculiar circumstances of 
the latter period, it is but equitable to allow some praise 
to a minister for the mischief which he may be presumed 
to have averted. Had a nobler spirit animated the par- 
liament which met at the era of Wolsey's fall, it might 
have prompted his impeachment for gross violations of 
liberty. But these were not the offences that had for- 
feited his prince's favour, or that they dared bring to 
justice. They were not absent, perhaps, from the recol- 
lection of some of those who took a part in prosecuting 
the fallen minister. I can discover no better apology for 
Sir Thomas More's participation in impeaching Wolsey 
on articles so frivolous that they have served to redeem 

7 Hall, 699. 



Hex. VIII. FROM HIS DEBTS. 23 

his fame with later times than his knowledge of weightier 
offences against the common weal which could not be 
alleged, and especially the commissions of 1525. 11 But 
in truth this parliament showed little outward disposi- 
tion to object any injustice of such a kind to" the car- 
dinal. They professed to take upon themselves to give 
a sanction to his proceedings, as if in mockery of their 
own and their country's liberties. They passed a statute, 
the most extraordinary, perhaps, of those strange times, 
wherein " they do, for themselves and all the whole 
body of the realm which they represent, freely, liberally, 
and absolutely, give and grant unto the king's highness, 
by authority of this present parliament, all and every 
sum and sums of money which to them and every of 
them is, ought, or might be due, by reason of any 
money, or any other thing, to his grace at any time 
heretofore advanced or paid by way of trust or loan, 
either upon any letter or letters under the king's privy 
seal, general or particular, letter missive, promise, bond, 
or obligation of re-payment, or by any taxation or other 
assessing, by virtue of any commission or commissions, 
or by any other mean or means, whatever it be, here- 
tofore passed for that purpose." a This extreme ser- 
vility and breach of trust naturally excited loud mur- 
murs ; for the debts thus released had been assigned 
over by many to their own creditors, and, having all the 
security both of the king's honour and legal obligation, 
were reckoned as valid as any other property. It is said 
by Hall that most of this house of commons held offices 
under the crown. This illaudable precedent was re- 
membered in 1544, when a similar act passed, releasing 

1 The word impeachment is not very prosecution, at least for the present This 

accurately applicable to these proceedings also I find to be Dr. Lingard's opinion, 

against Wolsey ; since the articles were a Rot Pari. vi. 164. Burnet, Appen- 

first presented to the upper house, and dix, No. 31. "When this release of the 

sent down to the commons, where Crom- loan," says Hall, " was known to the 

well so ably defended his fallen master commons of the realm, Lord ! so they 

that nothing was done upon them, grudged and spake ill of the whole par- 

" Upon this honest beginning," says lord liament ; for almost every man counted 

Herbert, " Cromwell obtained his first on his debt, and reckoned surely of the 

reputation." I am disposed to conjecture, payment of the same, and therefore some 

from Cromwell's character and that of made their wills of the same, and some 

the house of commons, as well as from other did set it over to other for debt; 

some passages of Henry's subsequent be- and so many men had loss by it, which 

haviour towards the cardinal, that it was caused them sore to murmur, but there 

not the king's intention to follow up this was no remedy." P. 767. 



24 ANOTHER BENEVOLENCE EXACTED. Chap. I. 

to the king all moneys borrowed by him since 1 542, with 
the additional provision, that if he should have already 
discharged any of these debts, the party or his heirs 
should repay his majesty. 1 " 

Henry had once more recourse, about 1545, to a 
Abenevo- general exaction, miscalled benevolence. The 
ience again council's instructions to the commissioners em- 
exacted. pi yed in levying it leave no doubt as to its 
compulsory character. They were directed to incite all 
men to a loving contribution according to the rates of 
their substance, as they were assessed at the last subsidy, 
calling on no one whose lands were of less value than 
40a\ or whose chattels were less than 15/. It is inti- 
mated that the least which his majesty could reasonably 
accept would be twenty pence in the pound on the 
yearly value of land, and half that sum on moveable 
goods. They are to summon but a few to attend at one 
time, and to commune with every one apart, " less 
some one unreasonable man, amongst so many, forget- 
ting his duty towards God, his sovereign lord, and his 
country, may go about by his malicious frowardness to 
silence all the rest, be they never so well disposed." 
They were to use " good words and amiable behaviour," 
to induce men to contribute, and to dismiss the obedient 
with thanks. But if any person should withstand their 
gentle solicitations, alleging either poverty or some 
other pretence which the commissioners should deem 
unfit to be allowed, then, after failure of persuasions 
and reproaches for ingratitude, they were to command 
his attendance before the privy council, at such time as 
they should appoint, to whom they were to certify his 
behaviour, enjoining him silence in the mean time, that 
his evil example might not corrupt the better disposed. 

b Stat 35 H. 8, c. 12. I find in a Appendix, n. 119. The sums raised from 

manuscript which seems to have been different counties for this benevolence 

copied from an original in the exchequer, afford a sort of criterion of their relative 

that the moneys thus received by way of opulence. Somerset gave 68071. ; Kent, 

loan in 1543 amounted toll 0,1 47Z.15s.8d. 647H.; Suffolk, 4512L; Norfolk, 4046?.; 

There was also a sum called devotion Devon, 4527 1.; Essex, 505 U.; but Lan- 

money, amounting only to 1093Z. 8s. 3d., caster only 660?., and Cumberland 574Z. 

levied in 1544, "of the devotion of his The whole produced 119.58U. 7s. Gd., 

highness's subjects for Defence of Chris- besides arrears. In Haynes's State Pa- 

tendom against tlue Turk." pers, p. 54, we find a curious minute of 

c Lodge's Illustrations of British His- secretary Paget, containing reasons why 

tory, 1.711. Strype's Eccles. Memorials, it was better to get the money wanted by 



Hen. VIII. TREATMENT OF REED. 25 

It is only through the accidental publication of some 
family papers that we have become acquainted with this 
document, so curiously illustrative of the government of 
Hemy VIII. From the same authority may be exhi- 
bited a particular specimen of the consequences that 
awaited the refusal of this benevolence. One Richard 
Reed, an alderman of London, had stood alone, as is 
said, among his fellow-citizens, in refusing to contribute. 
It was deemed expedient not to overlook this. . 

■*• Oppressive 

disobedience ; and the course adopted in punish- treatment 
ing it is somewhat remarkable. The English otReed - 
army was then in the field on the Scots border. Reed 
was sent down to serve as a soldier at his own charge ; 
and the general, sir Ralph Ewer, received intimations to 
employ him on the hardest and most perilous duty, and 
subject him, when in garrison, to the greatest privations, 
that he might feel the smart of his folly and sturdy dis- 
obedience. " Finally," the letter concludes. " you 
must use him in all things according to the sharpe disci- 
plyne militar of the northern wars." d It is natural to 
presume that few would expose themselves to the treat- 
ment of this unfortunate citizen ; and that the commis- 
sioners whom we find appointed two years afterwards in 
every county, to obtain from the king's subjects as nmch 
as they would willingly give, if they did not always find 
perfect readiness, had not to complain of many peremp- 
tory denials." 

Such was the security that remained against arbitrary- 
taxation under the two Henries. Were men's 
lives better protected from unjust measures, Unjust 81 " 1 
and less at the mercy of a jealous court? It executions 

. n j." j t for treason. 

cannot be necessary to expatiate very much on 
this subject in a work that supposes the reader's ac- 
quaintance with the common facts of our history ; yet it 
would leave the picture too imperfect, were I not to 
recapitulate the more striking instances of sanguinary 
injustice, that have cast so deep a shade over the memory 
of these princes. 

means of a benevolence than through having been taken by the Scots, vras 

parliament. But he does not hint at any compelled to pay much more for his 

difficulty of obtaining a parliamentary ransom than the benevolence required of 

grant. him. 

d Lodge, p. 80. Lord Herbert men- e Kymer, xv. 84. These commissions 

tions this story, and observes, that Reed bear date 5th Jan. 1546. 



2G EARLS OF WARWICK AND SUFFOLK. Chap. I. 

The duke of Clarence, attainted in the reign of his 
Eari of brother Edward IV., left one son, whom his 
Warwick, unc le restored to the title of earl of Warwick. 
This boy, at the accession of Heniy VII., being then 
about twelve years old, was shut up in the Tower. 
Fifteen years of captivity had elapsed, when, if we trust 
to the common story, having unfortunately become ac- 
quainted with his fellow-prisoner Perkin VVarbeck, he 
listened to a scheme for their escape, and would probably 
not have been averse to second the ambitious views of 
that young man. But it was surmised, with as much 
likelihood as the character of both parties could give it, 
that the king had promised Ferdinand of Aragon to 
remove the earl of Warwick out of the way, as the con- 
dition of his daughter's marriage with the prince of 
Wales, and the best means of securing their inheritance. 
Warwick accordingly was brought to trial for a con- 
spiracy to overturn the government ; which he was in- 
duced to confess, in the hope, as we must conceive, and 
perhaps with an assurance, of pardon, and was immedi- 
ately executed. 

The nearest heir to the house of York, after the queen 
Earlof and her children and the descendants of the 
Suffolk, duke of Clarence, was a son of Edward IV. 's 
sister, the earl of Suffolk, whose elder brother, the earl 
of Lincoln, had joined in the rebellion of Lambert 
Simnel, and perished at the battle of Stoke. Suffolk, 
having killed a man in an affray, obtained a pardon, 
which the king compelled him to plead in open court at 
his arraignment. This laudable impartiality is said to 
have given him offence, and provoked his flight into the 
Netherlands ; whence, being a man of a turbulent dis- 
position, and partaking in the hatred of his family 
towards the house of Lancaster, he engaged in a con- 
spiracy with some persons at home, which caused him to 
be attainted of treason. Some time afterwards, the arch- 
duke Philip, having been shipwrecked on the coast of 
England, found himself in a sort of honourable detention 
at Henry's court. On consenting to his departure, the 
king requested him to send over the earl of Suffolk ; and 
Philip, though not insensible to the breach of hospitality 
exacted from him, was content to satisfy his honour by 
obtaining a promise that the prisoner's life should be 



Hen-. VIII. DUKE OF BUCKINGHAM. 27 

spared. Henry is said to have reckoned this engagement 
merely personal, 'and to have left as a last injunction to 
his successor, that he should carry into effect the sen- 
tence against Suffolk. Though this was an evident vio- 
lation of the promise in its spirit, yet Henry VIII., after 
the lapse of a few years, with no new pretext, caused 
him to be executed. 

The duke of Buckingham, representing the ancient 
family of Stafford, and hereditary high constable D , 
of England, stood the first in rank and con- Bucking-; 
sequence, perhaps in riches, among the nobility. ham- 
But being too ambitious and arrogant for the age in which 
he was bora, he drew on himself the jealousy of the king 
and the resentment of Wolsey. The evidence on his trial 
for high treason was almost entirely confined to idle and 
vaunting language, held with servants who betrayed his 
confidence, and soothsayers whom he had believed. As 
we find no other persons charged as parties with him, it 
seems manifest that Buckingham was innocent of any 
real conspiracy. His condemnation not only gratified 
the cardinal's revenge, but answered a very constant 
purpose of the Tudor government, that of intimidating 
the great families from whom the preceding dynasty had 
experienced so much disquietude/ 

The execution, however, of Suffolk was at least not 
contrary to law ; and even Buckingham was „ 
attainted on evidence which, according to the created by 
tremendous latitude with which the law of 8tatutes - 
treason had been construed, a court of justice could not 
be expected to disregard. But after the fall of Wolsey, 
and Henry's breach with the Boman see, his fierce tem- 
per, strengthened by habit and exasperated by resistance, 
demanded more constant supplies of blood ; and many 
perished by sentences which we can hardly prevent 
ourselves from considering as illegal, because the statutes 
to which they might be conformable seem, from their 
temporary duration, their violence, and the passiveness 



f Hall, 622. Hume, who ig favourable adds, that his crime proceeded more from 

to Wolsey, says, ■ There is no reason to indiscretion than deliberate malice. In 

think the sentence against Buckingham fact, the condemnation of this great noble 

unjust." But no one who reads the trial was owing to Wdlsey's resentment, acting 

will find any evidence to satisfy a reason- on the savage temper of Henry, 
able mind ; and Hume himself soon after 



28 FISHER AND MORE. Chap. I. 

of the parliaments that enacted them, rather like arbi- 
trary invasions of the law than alterations of it. By an 
act of 1534 not only an oath was imposed to maintain 
the succession in the heirs of the king's second marriage, 
in exclusion of the princess Mary, but it was made high 
treason to deny that ecclesiastical supremacy of the 
crown, which, till about two years before, no one had 
Executions ever ven tured to assert. g Bishop Fisher, the 
of Fisher most inflexibly honest churchman who filled a 
and More, j^g^ station in that age, was beheaded for this 
denial. Sir Thomas More, whose name can ask no epi- 
thet, underwent a similar fate. He had offered to take 
the oath to maintain the succession, which, as he justly 
said, the legislature was competent to alter ; but pru- 
dently avoided to give an opinion as to the supremacy, 
till Eich, solicitor-general, and afterwards chancellor, 
elicited, in a private conversation, some expressions 
which were thought sufficient to bring him within the 
fangs of the recent statute. A considerable number of 
less distinguished persons, chiefly ecclesiastical, were 
afterwards executed by virtue of this law. 

The sudden and harsh innovations made by Heniy in 
religion, as to which every artifice of concealment and 
delay is required, his destruction of venerable establish- 
ments, his tyranny over the recesses of the conscience, 
excited so dangerous a rebellion in the north of England 
that his own general, the duke of Norfolk, thought it 
absolutely necessary to employ measures of conciliation. 11 

8 [25 H. 8, c. 22. This is not accu- veral others, suffered death on this eon- 
rately stated. This act does not make struction. See this fully explained in 
it treason to deny the ecclesiastical su- the 27th volume of the Archajologia, by 
premacy, which is not hinted in any part Mr. Bruce. 1845.] 
of it ; but makes a refusal to take the h Several letters that passed between 
oath to maintain the succession in the the council and duke of Norfolk (Hard- 
issue of the king's marriage with Anne wicke State Papers, i. 28, &c.) tend to 
Boleyn misprision of treason ; and on this confirm what some historians have hinted, 
More and Fisher, who scrupled the pre- that he was suspected of leaning too 
amble to the oath, denying the pope's favourably towards the rebels. The king 
right of dispensation, though they would was most unwilling to grant a free par- 
have sworn to the succession itself, as a don. Norfolk is told, " If you could, by 
legislative enactment, were convicted and any good means or possible dexterity, 
imprisoned. But a subsequent statute, reserve a very few persons for punish- 
26 H. 8, c. 13, made it high treason to incuts, you should assuredly administer 
wish by words to deprive the king of his the greatest pleasure to his highness that 
title, name, or dignity; and the appella- could be imagined, and much in the same 
tion Supreme Head being part of this advance your own honour." — P. 32. He 
title, not only More and Fisher, but se- must have thought himself in danger 



Hen. VJII. CROMWELL. 29 

The insurgents laid down their arms on an unconditional 
promise of amnesty. But another rising having occurred 
in a different quarter, the king made use of this pretext 
to put to death some persons of superior rank, who, 
though they had, voluntarily or by compulsion, partaken 
in the first rebellion, had no concern in the second, and 
to let loose military law upon their followers. Nor was 
his vengeance confined to those who had evidently been 
guilty of these tumults. It is, indeed, unreasonable to 
deny that there might be, nay, there probably were, 
some real conspirators among those who suffered on the 
scaffolds of Henry. Yet in the proceedings against the 
countess of Salisbury, an aged woman, but obnoxious as 
the daughter of the duke of Clarence and mother of 
Eeginald Pole, an active instrument of the pope in fo- 
menting rebellion,' against the abbots of Beading and 
Glastonbury, and others who were implicated in charges 
of treason at this period, we find so much haste, such 
neglect of judicial forms, and so bloodthirsty a deter- 
mination to obtain convictions, that we are naturally 
tempted to reckon them among the victims of revenge or 
rapacity. 

It was probably during these prosecutions that Crom- 
well, a man not destitute of liberal qualities, but 
who is liable to the one great reproach of hav- 
ing obeyed too implicitly a master whose commands 
were crimes, inquired of the judges whether, if par- 
liament should condemn a man to die for treason without 
hearing him, the attainder could ever be disputed. They 
answered that it was a dangerous question, and that par- 

from some of these letters which indicate severities towards the monasteries in that 

the king's distrust of him. He had re- part of England. 

commended the employment of men of i Pole, at his own solicitation, was 

higli rank as lords of the marches, instead appointed legate to the Low Countries in 

of the rather inferior persons whom the 1537, with the sole object of keeping alive 

king had lately chosen. This called down the flame of the northern rebellion, and 

on him rather a warm reprimand (p. 39); exciting foreign powers, as well as the 

for it was the natural policy of a despotic English nation, to restore religion by 

court to restrain the ascendency of great force, if not to dethrone Henry. Itisdiffi- 

fami lies ; nor were there wanting very cult not to suspect that he was influenced 

good reasons for this, even if the public by ambitious views in a proceeding so 

weal had been the sole object of Henry's treasonable, and so little in conformity 

council. See also, for the subject of this with his polished manners and temperate 

note, the State Papers Hen. 8, p. 518 life. Phillips, his able and artful bio- 

et alibi. They contain a good deal of in- grapher, both proves and glories in the 

teresting matter as to the northern rebel- treason. Life of Pole, sect 3. 
lion, which gave Henry a pretext for great 



30 FALL OF CROMWELL. Chap. I. 

liainent should rather set an example to inferior courts 
by proceeding according to justice. But being pressed 
to reply by the king's express commandment, they said 
that an attainder in parliament, whether the party had 
been heard or not in his defence, could never be reversed 
in a court of law. No proceedings, it is said, took place 
against the person intended, nor is it known who he 
was. k But men prone to remark all that seems an ap- 
propriate retribution of Providence, took notice that he 
who had thus solicited the interpreters of the law to 
sanction such a violation of natural justice, was himself 
its earliest example. In the apparent zenith of favour 
this able and faithful minister, the king's vicegerent in 
his ecclesiastical supremacy, and recently created earl of 
Essex, fell so suddenly, and so totally without offence, 
that it has perplexed some writers to assign the cause. 
But there seems little doubt that Henry's dissatisfaction 
with his fourth wife, Anne of Cleves, whom Cromwell 
had recommended, alienated his selfish temper, and in- 
clined his ear to the whisperings of those courtiers who 
abhorred the favourite and his measures. An act attaint- 
ing him of treason and heresy was hurried through par- 
liament, without hearing him in his defence. 1 " The 
charges, indeed, were so ungrounded that had he been 
permitted to refute them, his condemnation, though not 
less certain, might, perhaps, have caused more shame. 
This precedent of sentencing men unheard, by means of 

k Coke's 4th Institute, 37. It is how- sentium concessu, nemine discrepante, 
ever said by lord Herbert and others, expedite est." And at the close of the 
that the countess of Salisbury and the session we find a still more remarkable 
marchioness of Exeter were not heard in testimony to the unanimity of parliament 
their defence. The acts of attainder in the following words: "Hoc animad- 
against them were certainly hurried vertendum est, quod in hac sessione cum 
through parliament; but whether with- proceres darent suifragia, et dicerent sen- 
out hearing the parties does not appear, tentias super actibus prsedictis, ea erat 

m Burnet observes, that Cranmer was concordiaet sententiarumconfonnitas, ut 

absent the first day the bill was read, singuli iis et eorum singulis assenserint, 

17th June, 1540; and by his silence nemine discrepante. Thomas de Soule- 

leaves the reader to infer that he was mont, Cleric Parliamentorum." As far 

so likewise on 19th June, when it was therefore as entries on the journals are 

read a second and third time. But this, evidence, Cranmer was placed in the 

I fear, cannot be asserted. He is marked painful and humiliating predicament of 

in the journal as present on the latter voting for the death of his innocent friend, 

day; and there is the following entry: He had gone as far as he dared in writing 

" Hodie lecta est pro secundo et tertio, a letter to Henry, which might be con- 

billa attincturas Thorn* Comitis Essex, strued into an apology for. Cromwell, 

et communi omnium procerum tunc prae- though it was full as much so for himself. 



Hem. VII r. DUKE OF NORFOLK— ANNE BOLEYN. 31 

an act of attainder, was followed in the case of Dr. 
Bames, burned not long afterwards for heresy. 

The duke of Norfolk had been throughout Henry's 
reign one of his most confidential ministers, nuke of 
But as the king approached his end, an inordi- Norfolk, 
nate jealousy of great men rather than mere caprice 
appears to have prompted the resolution of destroying 
the most conspicuous family in England. Norfolk's son, 
too, the earl of Surrey, though long a favourite with the 
king, possessed more talents and renown, as well as a 
more naughty spirit, than were compatible with his 
safety. A strong party at court had always been hostile 
to the duke of Norfolk ; and his ruin was attributed 
especially to the influence of the two Seymours. No 
accusations could be more futile than those which suf- 
ficed to take away the life of the noblest and most accom- 
plished man in England. Surrey's treason seems to have 
consisted chiefly in quartering the royal arms in his 
escutcheon 5 and this false heraldry, if such it were, must 
have been considered as evidence of meditating the king's 
death. His father ignominiously confessed the charges 
against himself, in a vain hope of mercy from one who 
knew not what it meant. An act of attainder (for both 
houses of parliament were commonly made accessary to 
the legal murders of this reign) was passed with much 
haste, and perhaps irregularly; but Henry's demise 
ensuing at the instant prevented the execution of Nor- 
folk. Continuing in prison during Edward's reign, he 
just survived to be released and restored in blood under 
Mary. 

Among the victims of this monarch's ferocity, as we 
bestow most of our admiration on Sir Thomas Anne 
More, so we reserve our greatest pity for Anne Boieyn. 
Boleyn. Few, very few, have in any age hesitated to 
admit her innocence." But her discretion was by no 

n Burnet has taken much pains with against More. A remarkable passage in 

the subject, and set her innocence in a Cavendish's Life of Wolsey, p. 103, edit, 

very clear light: — i. 197, and iii. 114. See 1667, strongly displays her indiscretion, 

also Strype, i. 280, and Ellis's Letters, A late writer, whose acuteness and in- 

ii. 52. But Anne had all the failings of dustry would raise him to a very respect- 

a vain, weak woman raised suddenly to able place among our historians if he 

greatness. She behaved with unamiable could have repressed the inveterate par- 

vindictiveness towards Wolsey, and per- tiality of his profession, lias used every 

haps (but this worst charge is not fully oblique artifice to lead hi* readers into a 

authenticated) exasperated the king belief of Anne Boleyn's guilt, while he 



32 



TRIAL OF ANNE BOLEYN. 



Chap. I. 



means sufficient to preserve her steps on that dizzy 
height, which she had ascended with more eager ambi- 
tion than feminine delicacy could approve. Hemy was 
probably quicksighted enough to perceive that he did 
not possess her affections, and his own were soon trans- 
ferred to another object. Nothing in thiB detestable 
reign is worse than her trial. She was indicted, partly 
upon the statute of Edward III., which, by a just though 
rather technical construction, has been held to extend 
the guilt of treason to an adulterous queen as well as 
to her paramour, and partly on the recent law for pre- 
servation of the succession, which attached the same 
penalties to anything done or said in slander of the 
king's issue. Her levities in discourse were brought 
within this strange act by a still more strange interpre- 
tation. Nor was the wounded pride of the king content 
with her death. Under the fear, as is most likely, of a 
more cruel punishment, which the law affixed to her 
offence, Anne was induced to confess a pre-contract with 
Lord Percy, on which her marriage with the king was 



affects to hold the balance, and state both 
sides of the question without determin- 
ing it. Thus he repeats what he must 
have known to be the strange and ex- 
travagant lies of Sanders about her birth ; 
without vouching for them indeed, but 
without any reprobation of their absurd 
malignity. Lingard's Hist of England, 
vi. 153, (xvo. edit.) Thus he intimates 
that " the records of her trial and con- 
viction have perished, perhaps by the 
hands of those who respected her me- 
mory," p. 316, though the evidence is 
given by Burnet, and the record (in the 
technical sense) of a trial contains no- 
thing from which a party's guilt or in- 
nocence can be inferred. Tims be says 
that those who were executed on the 
same charge with the queen, neither ad- 
mitted nor denied the offence for which 
they suffered ; though the best informed 
writers assert that Norris constantly de- 
clared the queen's innocence and his 
own. 

Or. Lingard can hardly be thought 
serious when he takes credit to himself, 
in the commencement of a note at the 
end of the same volume, for " not ren- 
dering his book more interesting by re- 
presenting her as an innocent and injured 



woman, falling a victim to the intrigues 
of a religious faction." He well knows 
that he could not have done so without 
contradicting the tenor of his entire work, 
without ceasing, as it were, to be himself. 
All the rest of this note is a pretended 
balancing of evidence, in the style of a 
judge who can hardly bear to put for a 
moment the possibility of a prisoner's 
innocence. 

I regret very much to be compelled to 
add the name of Mr. Sharon Turner to 
those who have countenanced the sup- 
position of Anne Boleyn's guilt But 
Mr. Turner, a most worthy and pains- 
taking man, to whose earlier writings 
our literature is much indebted, has, in 
his history of Henry VIII., gone upon 
the strange principle of exalting that 
tyrant's reputation at the expense of 
every one of his victims, to whatever 
party they may have belonged. Odit 
damnatos. Perhaps he is the first, and 
will be the last, who has defended the 
attainder of Sir Thomas More. A verdict 
of a jury, an assertion of a statesman, a 
recital of an act of parliament, are, with 
him, satisfactory proofs of the most im- 
probable accusations against the most 
blameless character. 



Hen. VIII. 



CATHERINE HOWARD, 



33 



annulled by an ecclesiastical sentence, without awaiting 
its certain dissolution by the axe.° Henry seems to 
have thought his honour too much sullied by the in- 
fidelity of a lawful wife. But for this destiny he was 
yet reserved. I shall not impute to him as an act of 
tyranny the execution of Catherine Howard, since it 
appears probable that the licentious habits of that young 
woman had continued after her marriage ; p and though 
we might not in general applaud the vengeance of a 
husband who should put a guilty wife to death, it could 
not be expected that Henry VIII. should lose so reason- 
able an opportunity of shedding blood. q It was after 
the execution of this fifth wife that the celebrated law 
was enacted, whereby any woman whom the king should 
marry as a virgin incurred the penalties of treason if she 
did not previously reveal any failings that had dis- 
qualified her for the service of Diana/ 



° The lords pronounced a singular 
sentence, that she should be burned or 
beheaded at the king's pleasure. Burnet 
says, the judges complained of this as 
unprecedented. Perhaps in strictness the 
king's right to alter a sentence is ques- 
tionable ; or rather would be so, if a few 
precedents were out of the way. In high 
treason committed by a man, the be- 
heading was part of the sentence, and 
the king only remitted the more cruel 
preliminaries. Women, till 1791, were 
condemned to be burned. But the two 
queens of Henry, the countess of Salis- 
bury, lady Kochford, lady Jane Grey, 
and, in later times, Mrs. Lisle were be- 
headed. Poor M rs. Gaunt was not thought 
noble enough to be rescued from the fire. 
In felony, where beheading is no part 
of the sentence, it has been substituted 
by the king's warrant in the cases of 
the duke of Somerset and lord Audley. 
I know not why the latter obtained 
this favour ; for it had been refused 
to lord Stourton, hanged for murder 
under Mary, as it was afterwards to 
Earl Ferrers. 

P [The letters published in State 
Papers, temp. Henry 8, vol. i. p. 689 
et post, by no means increase this pro- 
bability; Catherine Howard's post-nup- 
tial guilt must remain very questionable, 
which makes her execution, and that of 

VOL. I. 



others who suffered with her, another of 
Henry's murders. There is too much 
appearance that Cranmer, by the king's 
order,, promised that her life should be 
spared, with a view of obtaining a con- 
fession of a pre-contract with Derham. 
—1845.] 

1 It is often difficult to understand 
the grounds of a parliamentary attainder, 
for which any kind of evidence was 
thought sufficient; and the strongest 
proofs against Catherine Howard un- 
doubtedly related to her behaviour be- 
fore marriage, which could be no legal 
crime. But some of the depositions ex- 
tend farther. 

Dr. Lingard has made a curious ob- 
servation on this case : "A plot was 
woven by the industry of the reformers, 
which brought the young queen to the 
scaffold, and weakened the ascendency of 
the reigning party."— p. 407. This is a 
very strange assertion ; for he proceeds 
to admit her ante-nuptial guilt, which 
indeed she is well known to have con- 
fessed, and does not give the slightest 
proof of any plot Yet he adds, speaking 
of the queen and lady Rochford, " I fear 
[i. e. wish to insinuate] both were sacri- 
ficed to the manes of Anne Boleyn." 

r Stat. 26 H. 8, c. 13. 

It may be here observed, that the act 
attainting Catherine Howard of treason 
D 



34 ACT' GIVING PROCLAMATIONS Chap. 1. 

These parliamentary attainders, being intended rather 
Fresh as judicial than legislative proceedings, were 

statutes violations of reason and justice in the applica- 
penamfs'of tion of law. But many general enactments of 
treason. this reign hear the same character of servility. 
New political offences were created in every parliament, 
against which the severest penalties were denounced. 
The nation had scarcely time to rejoice in the termination 
of those long debates between the houses of York and 
Lancaster, when the king's divorce, and the consequent 
illegitimacy of his eldest daughter, laid open the suc- 
cession to fresh questions. It was needlessly unnatural 
and unjust to bastardize the princess Mary, whose title 
ought rather to have had the confirmation of parliament. 
But Henry, who would have deemed so moderate a 
proceeding injurious to his cause in the eyes of Europe, 
and a sort of concession to the adversaries of the divorce, 
procured an act settling the crown on his children by 
Anne or any subsequent wife. Any person disputing the 
lawfulness of the king's second marriage might, by the 
sort of construction that would be put on this act, 
become liable to the penalties of treason. In two years 
more this very marriage was annulled by sentence ; and 
it would, perhaps, have been treasonable to assert the 
princess Elizabeth's legitimacy. The same punishment 
was enacted against such as should marry without 
licence under the great seal, or have a criminal' inter- 
course with, any of the king's children "lawfully born, 
or otherwise commonly reputed to be his' children, or 
his sister, aunt, or niece." ' 

Henry's two divorces had ci*eated an uncertainty as 
Act giving *° * ne ^ ne °^ succession, which parliament 
prociama- endeavoured to remove, not by such constitu- 
force of e tional provisions in concurrence with the crown 
law. as might define the course of inheritance, 

but by enabling the king, on failure of issue by Jane 
Seymour, or any other lawful wife, to make over and 
bequeath the kingdom to any persons at his pleasure, 

proceeds to declare that the king's assent may be presumed, therefore, to be the 

to bills by commission under the great earliest instance of the king's passing 

seal is as valid as if he were personally bills in this manner, 

present, any custom or use to the contrary 8 28 H. 8, c. 1 8. 
notwithstanding. 33 H. 8, c. 21. This 



Hen. VIII. THE FORCE OF LAW. 35 

not even reserving a preference to the descendants 
of former sovereigns. 1 By a subsequent statute, the 
princesses Mary and Elizabeth were nominated in the 
entail, after the king's male issue, subject, however, to 
such conditions as he should declare, by non-compliance 
with which their right was to cease." This act still left 
it in his power to limit the remainder at his discretion. 
In execution of this authority, he devised the crown, 
upon failure of issue from his three children, to the 
heirs of the body of Mary duchess of Suffolk, the 
younger of his two sisters ; postponing at least, if not 
excluding, the royal family of Scotland, descended from 
his elder sister Margaret. In surrendering the regular 
laws of the monarchy to one man's caprice, this parlia- 
ment became accessory, so far as in it lay, to dispositions 
which might eventually have kindled the flames of civil 
war. But it seemed to aim at inflicting a still deeper 
injury on future generations, in enacting that a king, 
after he should have attained the age of twenty-four 
years, might repeal any statutes made since his accession. 1 
Such a provision not only tended to annihilate the 
authority of a regency, and to expose the kingdom to a 
sort of anarchical confusion during its continuance, but 
seemed to prepare the way for a more absolute power of 
abrogating all acts of the legislature. Three years after- 
wards it was enacted that proclamations made by the 
king and council, under penalty of fine and imprison- 
ment, should have the forqe of statutes, so that they 
should not be prejudicial to any person's inheritance, 
offices, liberties, goods and chattels, or infringe the 
established laws. This has been often noticed as an 
instance of servile compliance. It is, however, a striking 
testimony to the free constitution it infringed, and demon- 
strates that the prerogative could not soar to the heights 
it aimed at, till thus imped by the perfidious hand of 
parliament. It is also to be observed, that the power 
given to the king's proclamations is considerably 
limited/ 

* 28 H. 8, c. 7. ceptions had been taken to some of the 
■ 35 H. 8, c 1. king's ecclesiastical proclamations, which 

* 28 H. 8, c. 17. altered laws, and laid taxes on spiritual 
7 31 H. 8, c. 8. Burnet, i. 263, ex- persons. He justly observes that the re- 
plains the origin of this act. Great ex- strictions contained in it gave great power 

d2 



36 CHARACTER OF HENRY VIII. Chap. I. 

A government administered with so frequent violations 
not only of the chartered privileges of Englishmen, but 
of those still more sacred rights which natural law 
has established, must have been regarded, one would 
imagine, with just abhorrence, and earnest longings for 
a change. Yet contemporary authorities by no means 
answer to this expectation. Some mention Henry after 
his death in language of eulogy ; and, if we except those 
whom attachment to the ancient religion had inspired 
with hatred towards his memory, very few appear to 
have been aware that his name would descend to posterity 
among those of the many tyrants and oppressors of 
innocence, whom the wrath of Heaven has raised 
up, and the servility of men has endured. I do not 
indeed believe that he had really conciliated his 
people's affection. That perfect fear which attended 
him must have cast out love. But he had a few qualities 
that deserve esteem, and several which a nation is 
pleased to behold in a sovereign. He wanted, or at 
least did not manifest in any eminent degree, one usual 
vice of tyrants, dissimulation : his manners were affable, 
and his temper generous. Though his schemes of foreign 
policy were not very sagacious, and his wars, either 
with France or Scotland, productive of no material 
advantage, they were uniformly successful, and retrieved 
the honour of the English name. But the main cause of 
the reverence with which our forefathers cherished this 
king's memoiy was the share he had taken in the Re- 
formation. They saw in him, not indeed the proselyte 
of their faith, but the subverter of their enemies' power, 
the avenging minister of Heaven, by whose giant arm 

to the judges, who had the power of ex- clause protecting all persons, as men- 
pounding in their hands. The preamble tioned, in their inheritance or other pro- 
is full as offensive as the body of the act ; perty, proceeds, " nor shall by virtue of 
reciting the contempt and disobedience the said act suffer any pains of death." 
of the king's proclamations by some But an exception is afterwards made for 
" who did not consider what a king by " such persons which shall offend against 
his royal power might do," which, if it any proclamation to be made by the 
continued, would tend to the disobe- king's highness, his heirs or successors, 
dience of the laws of God, and the dis- for or concerning any kind of heresies 
honour of the king's msdesty, " who might against Christian doctrine." Thus it 
full ill bear it," &c. See this act at seems that the king claimed a power to 
length in the great edition of the statutes, declare heresy by proclamation, under 
There was one singular provision : the penalty of death. 



Edw. VI. STANDARD OF HIGH TREASON. 37 

the chain of superstition had heen broken, and the prison 
gates burst asunder. 1 

The ill-assorted body of councillors who exercised the 
functions of regency by Henry's testament 
were sensible that they had not sinews to wield m enTof Ed- 
his iron sceptre, and that some sacrifice must ward vi.s 

•i j , * ,. , j ii councillors. 

be made to a nation exasperated as well as 
overawed by the violent measures of his reign. In the 
first session, accordingly, of Edward's parliament, the 
new treasons and felonies which had been created to 
please his father's sanguinary disposition were at once 
abrogated.* 

The statute of Edward III. became again the standard 
of high treason, except that the denial of the king's 
supremacy was still liable to its penalties. The same 
act, which relieves the subject from these terrors, con- 
tains also a repeal of that which had given legislative 
validity to the king's proclamations. These provisions 
appear like an elastic recoil of the constitution after the 
extraordinary pressure of that despotic reign. But, how- 
ever they may indicate the temper of parliament, we 
must consider them but as an unwilling and insincere 
compliance on the part of the government. Henry, too 
aiTOgant to dissemble with his subjects, had stamped the 
law itself with the print of his despotism. The more 
wily courtiers of Edward's council deemed it less ob- 
noxious to violate than to new-mould the constitution. 
For, although proclamations had no longer the legal 
character of statutes, we find several during Edward's 
reign enforced by penalty of fine and imprisonment. 
Many of the ecclesiastical changes were first established 

1 Gray has finely glanced at this bright to the king's supremacy, p. 351. 
point of Henry's character, in that beau- After all, Henry was every whit as 
tiful stanza where he has made the good a king and man as Francis I., whom 
founders of Cambridge pass before our there are still some, on the other side of 
eyes, like shadows over a magic glass : the Channel, servile enough to extol ; not 

in the least more tyrannical and san- 

^rokettl Sof Rome. B*™?' and of *"" faith towarJs his 
neighbours. 
In a poet, this was a fair employment a ] Edw. 6, c. 12. By this act it is 

of his art ; but the partiality of Burnet provided that a lord of parliament shall 

towards Henry VIII. is less warrantable ; have the benefit of clergy though he can- 

and he should have blushed to excuse, not read. Sect. 14. Yet one can hardly 

by absurd and unworthy sophistry, the believe that this provision was necessary 

punishment of those who refused to swear at so late an era. 



38 ATTAINDER OF LORD SEYMOUR. Chap. I. 

by no other authority, though afterwards sanctioned by 
parliament. Rates were thus fixed for the price of pro- 
visions ; bad money was cried down, with penalties on 
those who should buy it under a certain value, and the 
melting of the current coin prohibited on pain of for- 
feiture. 1 " Some of these might possibly have a sanction 
from precedent, and from the acknowledged prerogative 
of the crown in regulating the coin. But no legal apology 
can be made for a proclamation in April, 1549, addressed 
to all justices of the peace, enjoining them to arrest 
sowers and tellers abroad of vain and forged tales and 
lies, and to commit them to the galleys, there to row in 
chains as slaves during the king's pleasure. One would 
imagine that the late statute had been repealed, as too 
far restraining the royal power, rather than as giving it 
an unconstitutional extension. 

It soon became evident that if the new administration 
. . . had not fully imbibed the sanguinary spirit of ' 
of lord their late master, they were as little scrupulous 
Seymour. j n fcgnflfag the rules of law and justice to their 
purpose in cases of treason. The duke of Somerset, 
nominated by Henry as one only of his sixteen executors, 
obtained almost immediately afterwards a patent from 
the young king, constituting him sole regent under the 
name of protector, with the assistance, indeed, of the 
rest as his councillors, but with the power of adding any 
others to their number. Conscious of his own usurpa- 
tion, it was natural for Somerset to dread the aspiring 
views of others ; nor was it long before he discovered a 
rival in his brother, lord Seymour, of Sudeley, whom, 

b 2 Strype, 147, 341, 491. this realm, &c, and asked if they would 

c Id. 149. Dr. Lingard has remarked serve him and assent to his coronation, 

an important change in the coronation as by their duty of allegiance they were 

ceremony of Edward VI. Formerly the bound to do. All this was before the oath, 

king had taken an oath to preserve the 2 Burnet, Appendix, p. 93. 

liberties of the realm, and especially those Few will pretend that the coronation, 

granted by Edward the Confessor, &c, or the coronation oath, was essential to 

before the people were asked whether the legal succession of the crown, or the 

they would consent to have him as their exercise of its prerogatives. But this 

king. See the form observed at Richard alteration in the form is a curious proof 

the Second's coronation in Rymer, vii. of the solicitude displayed by the Tudors, 

158. But at Edward's coronation the as it was much more by the next family, 

archbishop presented the king to the to suppress every recollection that could 

people, as rightful and undoubted in- make their sovereignty appear to be of 

heritor by the laws of Ood and man to popular origin, 
the royal dignity and crown imperial of 



Emv. VI. ATTAINDER OF LORD SEYMOUR. 39 

according to the policy of that age, he thought it neces- 
sary to destroy by a bill of attainder. Seymour was 
apparently a dangerous and unprincipled man ; he had 
courted the favour of the young king by small presents 
of money, and appears beyond question to have enter- 
tained a hope of marrying the princess Elizabeth, who 
had lived much in his house during his short union with 
the queen dowager. It was surmised that this lady had 
been poisoned to make room for a still nobler consort. d 
But in this there could be no treason ; and it is not 
likely that any evidence was given which could have 
brought him within the statute of Edward III. In this 
prosecution against lord Seymour it was thought expe- 
dient to follow the very worst of Henry's precedents, 
by not hearing the accused in his defence. The bill 
passed through the upper house, the natural guardian of 
a peer's life and honour, without one dissenting voice. 
The commons addressed the king that they might hear 
the witnesses, and also the accused. It was answered 
that the king did not think it necessary for them to hear 
the latter ; but that those who had given their deposi- 
tions before the lords might repeat their evidence before 
the lower house. It rather appears that the commons 
did not insist on this any farther ; but the bill of at- 
tainder 'was carried with a few negative voices. How 
striking a picture it affords of the sixteenth century, to 
behold the popular and well-natured duke of Somerset, 
more estimable at least than any other statesman em- 
ployed under Edward, not only promoting this unjust 
condemnation of his brother, but signing the warrant 
under which he was beheaded ! 

But it was more easy to crush a single competitor than 

d Haynes's State Papers contain many absurd exaggeration, in the articles 
curious proofs of the incipient amour against lord Seymour, that, had the 
between lord Seymour and Elizabeth, former proved immediately with child 
and show much indecent familiarity on after her marriage with him, it might 
one side, with a little childish coquetry have passed for the king's. This mar- 
on the other. These documents also riage, however, did not take place before 
rather tend to confirm the story of our June, Henry having died in January, 
elder historians, which I have found Ellis's Letters, ii. 150. 
attested by foreign writers of that age e Journals, Feb. 27, March 4, 1548-9. 
(though Burnet has thrown doubts upon From these I am led to doubt whether the 
it), that some differences between the commons actually heard witnesses against 
queen-dowager and the duchess of So- Seymour, which Burnet and Strype have 
merset aggravated at least those of their taken for granted, 
husbands. P. 61, 69. It is alleged with 



40 ATTAINDER OF DUKE OF SOMERSET. Chap. I. 

to keep in subjection the subtle and daring spirits 
. trained in Henry's councils, and jealous of the 
of duke of usurpation of an equal. The protector, attribut- 
Somerset, j n g j^ g guccesSj as { s usual with men in power, 
rather to skill than fortune, and confident in the two 
frailest supports that a minister can have, the favour of 
a child and of the lower people, was stripped of his 
authority within a few months after the execution of 
lord Seymour, by a confederacy which he had neither 
the discretion to prevent nor the firmness to resist. 
Though from this time but a secondary character upon 
the public stage, he was so near the throne as to keep 
alive the suspicions of the duke of Northumberland, who, 
with no ostensible title, had become not less absolute 
than himself. It is not improbable that Somerset was 
innocent of the charge imputed to him, namely, a con- 
spiracy to murder some of the privy councillors, which 
had been erected into felony by a recent statute ; but the 
evidence, though it may have been false, does not seem 
legally insufficient. He demanded on his trial to be 
confronted with the witnesses, a favour rarely granted 
in that age to state criminals, and which he could not 
very decently solicit after causing his brother to be con- 
demned unheard. Three lords, against whom he was 
charged to have conspired, sat upon his trial ; and it was 
thought a sufficient reply to his complaints of this breach 
of a known principle that no challenge could be allowed 
in the case of a peer. 

From this designing and unscrupulous oligarchy no 
measure conducive to liberty and justice could be ex- 
pected to spring. But among the commons there must 
have been men, although their names have not descended 
to us, who, animated by a purer zeal for these objects, 
perceived on how precarious a thread the life of every 
man was suspended, when the private deposition of one 
suborned witness, unconfronted with the prisoner, could 
suffice to obtain a conviction in cases of treason. In the 
worst period of Edward's reign we find inserted in a bill 
creating some new treasons one of the most important 
constitutional provisions which the annals of the Tudor 
family afford. It is enacted that " no person shall be 
indicted for any manner of treason except on the testi- 
mony of two lawful witnesses, who shall be brought in 



Mauy. VIOLENCE OF MARY'S REIGN. 41 

person before the accused at the time of his trial, to 
avow and maintain what they have to say against him, 
unless he shall willingly confess the charges." f This 
salutary provision was strengthened, not taken away, as 
some later judges ventured to assert, by an act in the 
reign of Mary. In a subsequent part of this work I 
shall find an opportunity for discussing this important 
branch of constitutional law. 

It seems hardly necessary to mention the momentary 
usurpation of lady Jane Grey, founded on no 
pretext of title which could be sustained by of Marys 
any argument. She certainly did not obtain relgn- 
that degree of actual possession which might have shel- 
tered her adherents under the statute of Henry VII. ; 
nor did the duke of Northumberland allege this excuse 
on his trial, though he set up one of a more technical 
nature, that the great seal was a sufficient protection for 
acts done by its authority . g The reign that immediately 
followed is chiefly remembered as a period of sanguinary 
persecution ; but though I reserve for the next chapter 
all mention of ecclesiastical disputes, some of Mary's 
proceedings in re-establishing popery belong to the civil 
history of our constitution. Impatient under the ex- 
istence, for a moment, of rights and usages which she 
abhorred, this bigoted woman anticipated the legal 
authority which her parliament was ready to interpose 
for their abrogation ; the Latin liturgy was restored, the 
married clergy expelled from their livings, and even 
many protestant ministers thrown into prison for no 

f Stat. 5 & 6 Edw. 6, c. 11, s. 12. then to the lady Jane and her heirs male ; 

8 Burnet, ii. *^43. An act was made then to the heirs male of lady Katharine ; 

to confirm deeds of private persons, dated and in every instance, except Jane, ex- 

during Jane's ten days, concerning which eluding the female herself. Strype's 

some douht had arisen. 1 Mary, sess. 2, Cranmer, Append. 164. A late author, 

p. 4. It is said in this statute, "her on consulting the original MS., in the 

highness's most lawful possession was king's handwriting, found that it had 

for a time disturbed and disquieted by been at first written "the lady Jane's 

traitorous rebellion and usurpation." heirs male," but that the words " and 

It appears that the young king's ori- her " had been interlined. Nares's Me- 

ginal intention was to establish a motli- moirs of Lord Burghley, i. 451. Mr. 

fled Salic law, excluding females from Nares does not seem to doubt but that 

the crown, but not their male heirs. In this was done by Edward himself: the 

a writing drawn by himself, and entitled change, however, is remarkable, and 

"My Device for the Succession," it is should probably be ascribed to Xorth- 

entailed on the heirs male of the lady umberland's influence, 
queen, if she have any before his death ; 



42 VIOLENCE OF MARY'S REIGN. Chap. I. 

other crime than their religion, before any change had 
been made in the established laws. 1 ' The queen, in fact, 
and those around her, acted and felt as a legitimate 
government restored after an usurpation, and treated the 
recent statutes as null and invalid. But even in matters 
of temporal government the stretches of prerogative were 
more violent and alarming than during her brother's 
reign. It is due, indeed, to the memory of one who has 
left so odious a name, to remark that Mary was conscien- 
tiously averse to encroach upon what she understood to 
be the privileges of her people. A wretched book hav- 
ing been written to exalt her prerogative, on the ridi- 
culous pretence that, as a queen, she was not bound by 
the laws of former kings, she showed it to Gardiner, and 
on his expressing indignation at the sophism, threw it 
herself into the fire. An act passed, however, to settle 
such questions, which declares the queen to have all the 
lawful prerogatives of the crown.' But she was sur- 
rounded by wicked councillors, renegades of every faith, 
and ministers of every tyranny. We must, in candour, 
attribute to their advice her arbitrary measures, though 
not her persectition of heresy, which she counted for 
virtue. She is said to have extorted loans from the 
citizens of London, and others of her subjects.* This, 
indeed, was not more than had been usual with her pre- 
decessors. But we find one clear instance during her 
reign of a duty upon foreign cloth, imposed without 
assent of parliament ; an encroachment unprecedented 
since the reign of Richard II. Several proofs might be 
adduced from records of arbitrary inquests for offences 
and illegal modes of punishment. The torture is, per- 
haps, more frequently mentioned in her short "reign than 
in all former ages of our history put together, and, pro- 
fa Burnet. Strype, iii. 50, 53. Carte, for which was afterwards substituted 
290. I doubt whether we have any " during good behaviour." Burnet, App. 
thing in our history more like conquest 257. Collier, 218. 

than the administration of 1553. The i Burnet, ii. 278. Stat. 1 Mary, scss. 3, 
queen, in the month only of October, c. 1. Dr. Lingard rather strangely tells 
presented to 256 livings, restoring all this story on the authority of father 
those turned out under the acts of uni- Persons, whom his readers probably do 
formity. Yet the deprivation of the not esteem quite as much as he does. IT 
bishops might be justified probably by he had attended to Burnet, he would have 
the terms of the commission they had found a more sufficient voucher, 
taken out in Edward's reign, to hold k Carte, 330. 
their sees during the king's pleasure, 



Mary. VIOLENCE OF MARY'S REIGN. 43 

bably from that imitation of foreign governments, which 
contributed not a little to deface our constitution in the 
sixteenth century, seems deliberately to have been intro- 
duced as part of the process in those dark and uncon- 
trolled tribunals which investigated offences against the 
state.™ A commission issued in 1557, authorising the 
persons named in it to inquire, by any means they could 
devise, into charges of heresy or other religious offences, 
and in some instances to punish the guilty, in others of 
a graver nature to remit them to their ordinaries, seems 
(as Burnet has well observed) to have been meant as a 
preliminary step to bringing in the inquisition. It was 
at least the germ of the high-commission court in the 
next reign." One proclamation in the last year of her 
inauspicious administration may be deemed a flight of 
tyranny beyond her father's example, which, after de- 
nouncing the importation of books filled with heresy and 
treason from beyond sea, proceeds to declare that who- 
ever should be found to have such books in his pos- 
session should be reputed and taken for a rebel, and 
executed according to martial law." This had been pro- 
voked as well by a violent libel written at Geneva by 
Goodman, a refugee, exciting the people to dethrone the 
queen, as by the recent attempt of one Stafford, a de- 
scendant of the house of Buckingham, who, having 
landed with a small force at Scarborough, had vainly 
hoped that the general disaffection would enable him to 
overthrow her government. 1 " 

m Haynes, 195. Burnet, ii. Appendix, the imperial ambassador, Renard, which 

256. iii. 243. I have not had an opportunity of seeing, 

n Burnet, ii. 347. Collier, ii. 404, and throw much light on this reign. They 

Lingard, vii. 266 (who, by the way, con- certainly appear to justify the restraint 

founds this commission with something put on Elizabeth, who, if not herself 

different two years earlier), will not hear privy to the conspiracies planned in her 

of this allusion to the inquisition. But behalf (which is, however, very probable), 

Burnet has said nothing that is not per- was at least too dangerous to be left 

fectly just at liberty. Noailles intrigued with the 

° Strype, iii. 459. malecontents, and instigated the rebellion 

P See Stafford's proclamation from of Wyatt, of which Dr. Lingard gives a 

Scarborough castle, Strype, iii. Appendix, very interesting account. Carte, indeed, 

No. 71. It contains no allusion to re- differs from him in many of these cir- 

ligion, both parties being weary of Mary's cumstances, though writing from the 

Spanish counsels. The important letters same source, and particularly denies that 

of Noailles, the French ambassador, to Xoailles gave any encouragement to 

which Carte had access, and which have Wyatt It is, however, evident from the 

since been printed, have afforded informa- tenor of his despatches that he had gone 

tion to Dr. Lingard, and, with those of great lengths in fomenting the discon- 



44 INCREASED WEIGHT OF COMMONS. Ciur. I. 

Notwithstanding, however, this apparently uncon- 
trolled career of power, it is certain that the children 
of Henry VIII. did not preserve his almost absolute 
dominion over parliament. I have only met 
ofcom- Use with one instance in his reign where the com- 
mons re- nions refused to pass a bill recommended by 

covers itiirt a *j 

of its hi- the crown. This was in 1532 ; but so unques- 
poweHn l tionable were the legislative rights of parlia- 
thesetwo ment, that, although much displeased, even 
reign* jj enr y was forced to yield.* 1 We find several 
instances during the reign of Edward, and still more in 
that of Mary, where the commons rejected bills sent 
down from the upper house ; and though there was 
always a majority of peers for the government, yet the 
dissent of no small number is frequently recorded in the 
former reign. Thus the commons not only threw out a 
bill creating several new treasons, and substituted one 
of a more moderate nature, with that memorable clause 
for two witnesses to be produced in open court, which I 
have already mentioned ; r but rejected one attainting 
Tunstal bishop of Durham for misprision of treason, and 
were hardly brought to grant a subsidy. 8 Their conduct 
in the two former instances, and probably in the third, 
must be attributed to the indignation that was generally 
felt at the usurped power of Northumberland, and the 
untimely fate of Somerset. Several cases of similar un- 
willingness to go along with court measures occurred 
under Mary. She dissolved, in fact, her two first par- 
liaments on this account. But the third was far from 
obsequious, and rejected several of her favourite bills. 1 

tent, and was evidently desirous of the 1 Burnet, i. 117. The king refused 

success of the insurrection, iii. 36, 43, &c. his assent to a bill which had passed both 

This critical slateof the government may houses, but apparently not of a political 

furnish the usual excuse for its rigour, nature. Lords' Journals, p. 162. 

But its unpopularity was brought on by r Burnet, 190. 

Mary's breach of her word as to religion, 8 Id. 195, 215. This was the par- 
arid still more by her obstinacy in form- liament, in order to secure favourable 
ing her union with Philip against the elections for which the council had writ- 
general voice of the nation, and the ten letters to the sheriffs. These do not 
opposition of Gardiner ; who, however, appear to have availed so much as they 
after her resolution was taken, became might hope. 

its strenuous supporter in public For t Carte, 311, 322. Noailles, v. 252. He 

the detestation in which the queen was says that she committed some knights 

held, see the letters of Noailles, passim ; to the Tower for their language in the 

but with some degree of allowance for house. Id. 24Y. Burnet, p. 324, mentions 

his own antipathy to her. the same. 



Edw. VI. & Mary. COURT ERECTS NEW BOROUGHS. "\ 45 






Two reasons principally contributed to this opposition : 
the one, a fear of entailing upon the country thosex 
numerous exactions of which so many generations had 
complained, by reviving the papal supremacy, and more 
especially of a restoration of abbey lands ; the other, an 
extreme repugnance to the queen's Spanish connection." 
If Mary could have obtained the consent of parliament, 
she would have settled the crown on her husband, and 
sent her sister, perhaps, to the scaffold.* 

There cannot be a stronger proof of the increased 
weight of the commons during these reigns Attempt 
than the anxiety of the court to obtain favour- of the 
able elections. Many ancient boroughs, un- strengthen 
doubtedly, have at no period possessed suffi- itself by 
cient importance to deserve the elective fran- new 
chise on the score of their riches or population ; troughs. 
and it is most likely that some temporary interest or 
partiality, which cannot now be traced, first caused a 
writ to be addressed to them. But there is much reason 
to conclude that the councillors of Edward VI., in 
erecting new boroughs, acted upon a deliberate plan 
of strengthening their influence among the commons. 
Twenty-two boroughs were created or restored in this 
short reign ; some of them, indeed, places of much con- 
sideration, but not less than seven in Cornwall, and 
several others that appear to have been insignificant. 
Mary added fourteen to the number ; and as the same 
course was pursued under Elizabeth, we in fact owe a 
great part of that irregularity in our popular representa- 
tion, the advantages or evils of which we need not 
here discuss, less to changes wrought by time, than to 
deliberate and not very constitutional policy. Nor did 
the government scruple a direct and avowed interference 

u Burnet, 322. Carte, 296. Noailles putatione acri, et summo labore fldelium 

says that a third part of the commons in factum est." Lingard, Carte, Philips's 

Mary's first parliament was hostile to Life of Pole. Noailles speaks repeatedly 

the repeal of Edward's laws about re- of the strength of the protestant party, 

ligion, and that the debates lasted a week, and of the enmity which the English 

ii. 247. The Journals do not mention any nation, as he expressed it, bore to the 

division ; .though it is said in Strype, iii. pope. But the aversion to the marriage 

204, that one member, sir Balph Bagnal, with Philip, and dread of falling under 

refused to concur in the act abolishing the yoke of Spain, were common to both 

the supremacy. The queen, however, in religions, wi th the exception of a few mere 

her letter to cardinal Pole, says of this bigots to the church of Rome, 

repeal : " quod non sine contentione, dis- x Noailles, vol. v. passim. 



46 COURT INFLUENCES ELECTIONS. Chap. I. 

with elections. A circular letter of Edward to all the 
sheriffs commands them to give notice to the freeholders, 
citizens, and burgesses, within their respective counties, 
" that our pleasure and commandment is, that they shall 
choose and appoint, as nigh as they possibly may, men 
of knowledge and experience within the counties, cities, 
and boroughs ;" but nevertheless, that where the privy 
council should " recommend men of learning and wisdom, 
in such case their directions be regarded and followed." 
Several persons accordingly were recommended by letters 
to the sheriffs, and elected as knights for different shires ; 
all of whom belonged to the court, or were in places of 
trust about the king/ It appears probable that persons in 
office formed at all times a veiy considerable portion of 
the house of commons. Another circular of Mary before 
the parliament of 1554, directing the sheriffs to admonish 
the electors to choose good catholics and "inhabitants, 
as the old laws require," is much less unconstitutional ; 
but the earl of Sussex, one of her most active councillors, 
wrote to the gentlemen of Norfolk, and to the burgesses 
of Yarmouth, requesting them to reserve their voices for 
the person he should name. 2 There is reason to believe 
that the court, or rather the imperial ambassador, did 
homage to the power of the commons, by presents of 
money, in order to procure their support of the unpopular 
marriage with Philip ; a and if Noailles, the ambassador 
of Henry II., did not make use of the same means to 
thwart the grants of subsidy and other measures of the 
administration, he was at least very active in promising 
the succour of France, and animating the patriotism of 
those unknown leaders of that assembly, who withstood 
the design of a besotted woman and her unprincipled 
councillors to transfer this kingdom under the yoke of 
Spain. b 

It appears to be a very natural inquiry, after beholding 
the course of administration under the Tudor line, by 
what means a government so violent in itself, and so 

y Strype, ii. 394. Mary's counsellors, the Pagets and Arun- 

z Id. iii. 155. Burnet, ii. 223. dels, the most worthless of mankind. We 

a Burnet, ii. 262, 277. • are, in fact, greatly indebted to Noailles 

b Noailles, v. 190. Of the truth of for his spirited activity, which contri- 

this plot there can be no rational ground buted, in a high degree, to secure both 

to doubt; even Dr. Lingard has nothing the protestant religion and the national 

to advance against it but the assertion of independence of our ancestors. 



Hex. VII. to Mautt. TUDOR PREROGATIVE. 47 

plainly inconsistent with the acknowledged laws, could 
be maintained ; and what had become of that causes of * 
English spirit which had not only controlled the '»B h . 
such injudicious princes as John and Richard l^tST 
H., but withstood the first and third Edward Tudors - 
in the fulness of their pride and glory. Not, indeed, 
that the excesses of prerogative had ever been thoroughly 
restrained, or that, if the memorials of earlier ages had. 
been as carefully preserved as those of the sixteenth 
century, we might not possibly find in them equally 
flagrant instances of oppression ; but still the petitions 
of parliament and frequent statutes remain on record, 
bearing witness to our constitutional law, and to the 
energy that gave it birth. There had evidently been a 
retrograde tendency towards absolute monarchy between 
the reigns of Henry VI. and Henry VIII. Nor could 
this be attributed to the common engine of despotism, a 
military force. For, except the yeomen of the guard, 
fifty in number, and the common servants of the king's 
household, there was not, in time of peace, an armed 
man receiving pay throughout England. A government 
that ruled by intimidation was absolutely destitute of 
force to intimidate. Hence risings of the mere com- 
monalty were sometimes highly dangerous, and lasted 
• much longer than ordinary. A rabble of Cornishmen, 
in the reign of Henry VII., headed by a blacksmith, 
marched up from their own county to the suburbs of 
London without resistance. The insurrections of 1525 
in consequence of Wolsey's illegal taxation, those of the 
north ten years afterwards, wherein, indeed, some men 
of higher quality were engaged, and those which broke 
out simultaneously in several counties under Edward VI., 
excited a well-grounded alarm in the country, and in 
the two latter instances were not quelled without much 
time and exertion. The reproach of servility and patient 
acquiescence under usurped power falls not on the 
English people, but on its natural leaders. We have 
seen, indeed, that the house of commons now and then 
gave signs of an independent spirit, and occasioned 

c Henry VII. first established a band the gendarmerie of France ; but on ac- 

of fifty archers to wait on him. Henry count, probably, of the expense it occa- 

VIII. had fifty horse-guards, each with sioned, their equipment being too mag- 

an archer, demilance, and couteiller, like nificent, this soon was given up. 



48 STAR-CHAMBER. Chap. I. 

more trouble, even to Henry VIII., than his compliant 
nobility. They yielded to every mandate of his imperious 
will ; they bent with every breath of his capricious 
humour ; they are responsible for the illegal trial, for 
the iniquitous attainder, for the sanguinary statute, for 
the tyranny which they sanctioned by law, and for that 
which they permitted to subsist without law. Nor 
was this selfish and pusillanimous subserviency more 
characteristic of the minions of Henry's favour, the 
Cromwells, the Eiches, the Pagets, the Eussells, and 
the Powletts, than of the representatives of ancient and 
honourable houses, the Howards, the Fitz-Allans, and 
the Talbots. We trace the noble statesmen of those 
reigns concurring in all the inconsistencies of their 
revolutions, supporting all the religions of Henry, 
Edward, Mary, and Elizabeth ; adjudging the death of 
Somerset to gratify Northumberland, and of Northumber- 
land to redeem their participation in his fault, setting 
up the usurpation of lady Jane, and abandoning her on 
the first doubt of success, constant only in the rapacious 
acquisition of estates and honours, from whatever source, 
and in adherence to the present power. 

I have noticed in a former work that illegal and 
jurisdiction arbitrary jurisdiction exercised by the council, 
of the which, in despite of several positive statutes, 

star- continued in a greater or less degree, through 

chamber. a n ^g pejJod f the Plantagenet family, to de- 
prive the subject, in many criminal charges, of that 
sacred privilege, trial by his peers. d This usurped 
jurisdiction, carried much further, and exercised more 
vigorously, was the principal grievance under the 
Tudors ; and the forced submission of our forefathers 
was chiefly owing to the terrors of a tribunal which left 
them secure from no infliction but public execution, or 
actual dispossession of their freeholds. And, though it 
was beyond its direct province to pass sentence on 
capital charges, yet, by intimidating jurors, it procured 
convictions which it was not authorised to pronounce. 
We are naturally astonished at the easiness with which 
verdicts were sometimes given against persons accused 

d View of Middle Ages, ch. 8. I must um secretum, or privy council of state, and 
here acknowledge that I did not make the the concilium ordinarium, as lord Hale 
requisite distinction between the concili- calls it, which alone exercised jurisdiction . 



He*. VII. to Mary. STAR-CHAMBER. 49 

of treason, on evidence insufficient to support the charge 
in point of law, or in its nature not competent to he 
received, or unworthy of helief. But this is explained 
by the peril that hung over the jury in case of acquittal. 
44 If," says Sir Thomas Smith, in his Treatise on the 
Commonwealth of England, " they do pronounce not 
guilty upon the prisoner, against whom manifest witness 
is brought in, the prisoner escape th, but the twelve are 
not only rebuked by the judges, but also threatened of 
punishment, and many times commanded to appear in 
the star-chamber, or before the privy council, for the 
matter. But this threatening chanceth oftener than the 
execution thereof; and the twelve answer with most 
gentle words, they did it according to their consciences, 
and pray the judges to be good unto them ; they did as 
they thought right, and as they accorded all ; and so it 
passeth away for the most part. Yet I have seen in nay 
time, but not in the reign of the king now [Elizabeth], 
that an inquest, for pronouncing one not guilty of treason 
contrary to such evidence as was brought in, were not 
only imprisoned for a space, but a large fine set upon 
their heads, which they were fain to pay ; another 
inquest, for acquitting another, beside paying a fine, 
were put to open ignominy and shame. But these 
doings were even then accounted of many for violent, 
tyrannical, and contraiy to the liberty and custom of the 
realm of England." e One of the instances to which he 
alludes was probably that of the jury who acquitted 
Sir Nicholas Throckmorton in the second year of Mar}-. 
He had conducted his own defence with singular 
boldness and dexterity. On delivering their verdict, 
the court committed them to prison. Four, having 
acknowledged their offence, were soon released ; but the 
rest, attempting to justify themselves before the council, 
were sentenced to pay, some a fine of two thousand 
pounds, some of one thousand marks ; a part of which 
seems ultimately to have been remitted/ 



e Commonwealth of England, book 3, the president and council of the Welsh 
c. 1. The statute 26 H. 8, c. 4, enacts marches. The partiality of Welsh jurors 
that if a jury in Wales acquit a felon, was notorious in that age; and the re- 
contrary to good and pregnant evidence, proach has not quite ceased, 
or otherwise misbehave themselves, the t State Trials, i. 901. Strype, ii. 120. 
judge may bind them to appear before In a letter to the Duke of Norfolk (Hard- 
VOL. I. E 
\ 



50 STAR-CHAMBER Chap. I. 

It is here to be observed that the council of which we 
This not nave j us ^ heard, or, as lord Hale denominates 
the same it (though rather, I believe, for the sake of 
court the distinction than upon any ancient authority), 
erected by the king's ordinary council, was something dif- 
Henryvii. f eren t f rom the privy council, with which 
several modern writers are apt to confound it ; that is, 
the court of jurisdiction is to be distinguished from the 
deliberative body, the advisers of the crown. Every 
privy councillor belorjged to the concilium ordinarium ; 
but the chief justices, and perhaps several others who 
sat in the latter (not to mention all temporal and 
spiritual peers, who, in the opinion at least of some, had 
a right of suffrage therein), were not necessarily of the 
former body. 8 This cannot be called in question, with- 
out either charging lord Coke, lord Hale, and other 
writers on the subject, with ignorance of what existed 
in their own age, or gratuitously supposing that an 
entirely novel tribunal sprang up in the sixteenth cen- 
tury, under the name of the star-chamber. It has indeed 
been often assumed, that a statute enacted early in the 

wicke Tapers, i. 46) at the time of the concilio regis ; but neither those, not 

Yorkshire rebellion in 1 536, he is di- being of the king's privy council, nor any 

rected to question the jury who had of the rest of the judges or barons of the 

acquitted a particular person, in order to exchequer, are standing judges of the 

discover their motive. Norfolk seems to court." But Hudson, in his Treatise of 

have objected to this for a good reason, the Court of Star-Chamber, written about 

" least the fear thereof might trouble the end of James's reign, inclines to 

others in the like case." But it may not think that all peers had a right of sitting 

be uncandid to ascribe this rather to a in the court of star-chamber ; there being 

leaning towards the insurgents than a several instances where some who were 

constitutional principle. not of the council of state were present 

S Hale's Jurisdiction of the Lords' and gave judgment as in the case of Mr. 

House, p. 5. Coke, 4th Inst. 65, where Davison,-." and how they were complete 

we have the following passage : — " So judges unsworn, if not by their native 

this court, [the court of star-chamber, as right, I cannot comprehend ; for surely 

the concilium was then called,] being the calling of them in that case was not 

holden coram rege et concilio, it is, or made legitimate by any act of parliament ; 

may be, compounded of three several neither without their right were they 

councils ; that is to say, of the lords and more apt to be judges than any other in- 

others of his majesty's privy council, ferior persons in the kingdom; and yet 

always judges without appointment, as I doubt not but it resteth in the king's 

before it appeareth. 2. The judges of pleasure to restrain any man from that 

either bench and barons of the exchequer table, as well as he may any of his council 

are of the king's council, for matters of from the board." Collectanea Juridica, 

law, &c; and the two chief justices, or ii. p. 24. He says also, that it was de- 

in their absence other two justices, are murrable for a bill to pray process against 

standing judges of this court. 3. The the defendant, to appear before the king 

lords of parliament are properly de magno and his privy council. Ibid. 



Hen. VII. to Mauy. STAR-CHAMBER. 51 

reign of Henry VII. gave the first legal authority to the 
criminal jurisdiction exercised by that famous court, 
which in reality was nothing else but another name for 
the ancient concilium regis, of which our records are 
full, and whose encroachments so many statutes had 
endeavoured to repress ; a name derived from the cham- 
ber wherein it sat, and which is found in many prece- 
dents before the time of Henry VII., though not so 
specially applied to the council of judicature as after- 
wards. 1 " The statute of this reign has a much more 
limited operation. I have observed in another work, 
that the coercive jurisdiction of the council had great 
convenience, in cases where the ordinary course of jus- 
tice was so much obstructed by one party, through 
writs, combinations of maintenance, or overawing in- 
fluence, that no inferior court would find its process 
obeyed ; and that such seem to have been reckoned 
necessary exceptions from the statutes which restrain 
its interference. The act of 3 H. 7, c. 1, appears in- 
tended to place on a lawful and permanent basis the 
jurisdiction of the council, or rather a part of the 
council, over this peculiar class of offences ; and after 
reciting the combinations supported by giving liveries, 
and by indentures or promises, the partiality of sheriffs 
in making panels, and in untrue returns, the taking of 
money by juries, the great riots and unlawful assemblies, 
which almost annihilated the fair administration of jus- 
tice, empowers the chancellor, treasurer, and keeper of 
the privy seal, or any two of them, with a bishop and 
temporal lord of the council, and the chief justices of 
king's bench and common pleas, or two other justices in 
their absence, to call before them such as offended in 
the before-mentioned respects, and to punish them after 
examination in such manner as if they had been con- 
victed by course of law. But this statute, if it renders 

h The privy council sometimes met in of star-chamber, which was a judicial 

the star-chamber, and made orders. See tribunal. 

one in 18 H. 6. Harl. MSS. Catalogue, It should be remarked, though not to 

N. 1878, fol. 20. So the statute 21 H. 8, our immediate purpose, that this decree 

c. 16, recites a decree by the king's council was supposed to require an act of par- 

in his star-dtamber, that no alien artificer liament for its confirmation j so far was 

shall keep more than two alien servants, the government of Henry VIII. from 

and other matters of the same kind, arrogating a legislative power in matters 

This could no way belong to the court of private right. 

E 2 



52 STAR-CHAMBER. Chap. I. 

legal a jurisdiction which had long been exercised with 
much advantage, must be allowed to limit the persons in 
whom it should reside, and certainly does not convey 
by any implication more extensive functions over a 
different description of misdemeanors. By a later act, 
21 H. 8, c. 20, the president of the council is added to 
the judges of this court ; a decisive proof that it still 
existed as a tribunal perfectly distinct from the council 
itself. But it is not styled by the name of star-chamber 
in this, any more than in the preceding statute. It is 
very difficult, I believe, to determine at what time the 
jurisdiction legally vested in this new court, and still 
exercised by it forty years afterwards, fell silently into 
the hands of the body of the council, and was extended 
by them so far beyond the boundaries assigned by law, 
under the appellation of the court of star-chamber. Sir 
Thomas Smith, writing in the early part of Elizabeth's 
reign, while he does not advert to the former court, 
speaks of the jurisdiction of the latter as fully estab- 
lished, and ascribes the whole p-aise (and to a certain 
degree it was matter of praise) to Cardinal Wolsey. 

The celebrated statute of 31 H. 8, c. 8, which gives 
the king's proclamations, to a certain extent, the force 
of acts of parliament, enacts that offenders convicted of 
breaking such proclamations before certain persons enu- 
merated therein (being apparently the usual officers of 
the privy council, together with some bishops and 
judges), " in the star-chamber or elsewhere," shall suffer 
such penalties of fine and imprisonment as they shall 
adjudge. " It is the effect of this court," Smith says, 
f* to bridle such stout noblemen or gentlemen which 
would offer wrong by force to any manner of men, and 
cannot be content to demand or defend the right by 
order of the law. It began long before, but took aug- 
mentation and authority at that time that cardinal Wol- 
sey, archbishop of York, was chancellor of England, 
who of some was thought to have first devised that 
court, because that he, after some intermission, by neg- 
ligence of time, augmented the authority of it, 1 which 

i Lord Hale thinks that the jurisdiction ceedings till near 3 H. 1," p. 38. "The 

of the council was gradually " brought continual complaints of the commons 

into great disuse, though there remain against the proceedings before the council 

some straggling footsteps of their pro- in causes civil or criminal, although they 



Hen. VII. to Mary. 



STAR-CHAMBER. 



53 



was at that time marvellous necessary to do to repress 
the insolency of the noblemen and gentlemen in the 
north parts of England, who being far from the king 
and the seat of justice, made almost, as it were, an 
ordinary war among themselves, and made their force 
their law, binding themselves, with their tenants and 
servants, to do or revenge an injury one against another 
as they listed. This thing seemed not supportable to 
the noble prince Henry VIII. ; and sending for them 
one after another to his court, to answer before the per- 
sons before named, after they had remonstrance showed 
them of their evil demeanour, and been well disciplined, 
as well by words as by fleeting [confinement in the Fleet 
prison] a while, and thereby their pride and courage 
somewhat assuaged, they began to range themselves in 
order, and to understand that they had a prince who 
woidd rule his subjects by his law and obedience. 
Since that time, this court has been in more estimation, 
and is continued to this day in manner as I have said 



did not always attain their concession, 
yet brought a disreputation upon the 
proceedings of the council, as contrary 
to Magna Charta and the known laws," 
p. 39. He seems to admit afterwards, 
however, that many instances of pro- 
ceedings before them in criminal causes 
might be added to those mentioned by 
lord Coke, p. 43. 

The paucity of records about the time 
of Edward IV. renders the negative ar- 
gument rather weak : but from the ex- 
pression of sir Thomas Smith in the 
text, it may perhaps be inferred that the 
council had intermitted in a considerable 
degree, though not absolutely disused, 
their exercise of jurisdiction for some 
time before the accession of the house of 
Tudor. 

Mr. Brodie, in his History of the 
British Empire under Charles I., i. 158, 
has treated at considerable length, and 
with much acuteness, this subject of the 
antiquity of the star-chamber. I do not 
coincide in all his positions; but the 
only one very important is that wherein 
we fully agree that its jurisdiction was 
chiefly usurped, as well as tyrannical. 

I will here observe that this part of 
our ancientconstitutional history is likely 
to be elucidated by a friend of my own, 
who has already given evidence to the 
world of his singular competence for such 



an undertaking, and who unites, with all 
the learning and diligence of Spelman, 
Prynne, and Maddox, an acuteness and 
vivacity of intellect which none of those 
writers possessed. — [1827.] [This has 
since been done in ' An Essay upon the 
Original Authority of the King's Coun- 
cil, by sir Francis Palgrave, K. H.,' 
1834. The ' Proceedings and Ordinances 
of the Privy Council of England,' pub- 
lished by sir Harris Nicolas, contain the 
transactions of that body from 10 Ric II. 
(1387) to 13 Hen. VI. (1435), with some 
scattered entries for the rest of the lat- 
ter reign. They recommence in 1540. 
And a material change appears to have 
occurred, doubtless through Wolsey, in 
the latter years of the interval; the 
privy council exercising the same arbi- 
trary and penal jurisdiction, or nearly 
such, as the concilium ordinarium had 
done with so much odium under Edw. 
III. and Ric. II. There may possibly be 
a very few instances of this before, to 
be traced in the early volumes of the 
Proceedings; but from 1540 to 1547 the 
course of the privy council is just like 
that of the star-chamber, as sir Thomas 
Smith intimates in the passage above 
quoted (p. 48) ; and in fact considerably 
more unconstitutional and dangerous, f r< mi 
there being no admixture of the judges 
to keep up some regard to law.— 1845.] 



54 STAR-CHAMBER. Chap. I. 

before." k But, as the court erected by the statute of 
Henry VII. appears to have been in activity as late as 
the fall of cardinal Wolsey, and exercised its jurisdiction 
over precisely that class of oifences which Smith here de- 
scribes, it may perhaps be more likely that it did not 
wholly merge in the general body of the council till the 
minority of Edward, when that oligarchy became almost 
independent and supreme. It is obvious that most, if 
not all, of the judges in the court held under that statute 
were members of the council; so that it might, in a 
certain sense, be considered as a committee from that 
body, who had long before been wont to interfere with 
the punishment of similar misdemeanors. And the 
distinction was so soon forgotten, that the judges of the 
king's bench in the 13th of Elizabeth . cite a case from 
the year-book of 8 H. 7, as " concerning the star-cham- 
ber," which related to the limited court erected by the 
statute.™ 

In this half barbarous state of manners we certainly 
discover an apology, as well as motive, for the council's 
interference; for it is rather a servile worshipping of 
names than a rational love of liberty to prefer the forms 
of trial to the attainment of justice, or to fancy that ver- 
dicts obtained by violence or corruption are at all less 
iniquitous than the violent or corrupt sentences of a 
court. But there were many cases wherein neither the 
necessity of circumstances nor the legal sanction of any 
statute could excuse the jurisdiction habitually exercised 
by the court of star-chamber. Lord Bacon takes occasion 
from the act of Henry VII. to descant on the sage and 
noble institution, as he terms it, of that court whose 
walls had been so often witnesses to the degradation of 
his own mind. It took cognizance principally, he tells 
us, of four kinds of causes, "forces, frauds, crimes, 
various of stellionate, and the inchoations or middle acts 
towards crimes, capital or heinous, not actually corn- 
it Commonwealth of England, book 3, the year-book itself, 8 H. 7, pi. ult, the 
c. 4. We find sir Robert Sheffield in word star-chamber is not used. It is 
1517 " put into the Tower again for the held in this case, that the chancellor, 
complaint he made to the king of my treasurer, and privy seal were the only 
lord Cardinal." Lodge's Illustrations, i., judges, and the rest but assistants. Coke, 
p. 27. See also Hall, p. 585, for Wol- 4 Inst. 62, denies this to be law; but on 
sey's strictness in punishing the " lords, no better grounds than that the practice 
knights, and men of all sorts, for riots, of the star-chamber, that is, of a different 
bearing and maintenance." tribunal, was not such. 

m Plowden's Commentaries, 393. In 



Hz*. VII. to Mary. STAR-CHAMBER. 55 

mitted or perpetrated."" Sir Thomas Smith uses ex- 
pressions less indefinite than these last; and specifies 
scandalous reports of persons in power, and seditious 
news, as offences which they were accustomed to punish. 
We shall find atmndant proofs of this department of 
their functions in the succeeding reigns. But this was 
in violation of many ancient laws, and not in the least 
supported by that of Henry VII.° 

A tribunal so vigilant and severe as that of the star- 
chamber, proceeding b} r modes of interrogatory Influence 
unknown to the common law, and possessing a of the 
discretionary power of fine and imprisonment, *? uw'star- 
was easily able to quell any private opposition chamber in 
or contumacy. We have seen how the council the roy" e 
dealt with those who refused to lend money by P° wer - 
way of benevolence, and with the juries who found ver- 
dicts that they disapproved. Those that did not yield 
obedience to their proclamations were not likely to fare 
better. I know not whether menaces were used toAvards 
members of the commons who took part against the 
crown ; but it would not be unreasonable to believe it, 
or at least that a man of moderate courage would scarcely 
care to expose himself to the resentment which the 
council might indulge after a dissolution. A knight 
was sent to the Tower by Mary for his conduct in par- 
liament; 1 ' and Henry VIII. is reported, not, perhaps, on 
very certain authority, to have talked of cutting off the 
heads of refractory commoners. 

In the perse\ r ering straggles of earlier parliaments 
against Edward III., Richard II., and Henry IV., it is 
a very probable conjecture that many considerable peers 
acted in union with, and encouraged the efforts of, the 
commons. But in the period now before us the nobility 
were precisely the class most deficient in that consti- 
tutional spirit which was far from being extinct in those 
below them. They knew what havoc had been made 

n Hist of Henry A7TI. in Bacon's reign, but not long afterwards went into 

Works, ii. p. 290. disuse. 3. The court of star-chamber was 

° The result of what has been said in the old concilium ordinarium, against 

the last pages may be summed up in a whose jurisdiction many statutes had been 

few propositions. 1. The court erected enacted from the time of Edward III. 

by the statute of 3 Henry VII. was not 4. No part of the jurisdiction exercised by 

the court of star-chamber. 2. This court the star-chamber could be maintained on 

by the statute subsisted in full force till the authority of the statute of Henry VII. 

beyond the middle of Henry VIII.'s P Burnet, ii. 321. 



56 JEALOUSY OF RELIGIOUS PARTIES. Chap. I. 

among their fathers by multiplied attainders during the 
rivalry of the two roses. They had seen terrible ex- 
amples of the danger of giving umbrage to a jealous 
court, in the fate of lord Stanley and the duke of Buck- 
ingham, both condemned on slight evidence of treache- 
rous friends and servants, from whom no man could be 
secure. Though rigour and cruelty tend frequently to 
overturn the government of feeble princes, it is unfor- 
tunately too true that, steadily employed and combined 
with vigilance and courage, they are often the safest 
policy of despotism. A single suspicion in the dark 
bosom of Henry VII., a single cloud of wayward humour 
in his son, would have been sufficient to send the proud- 
est peer of England to the dungeon and the scaffold. 
Thus a life of eminent services in the field, and of un- 
ceasing compliance in council, could not rescue the 
duke of Norfolk from the effects of a dislike which we 
cannot even explain. Nor were the nobles of this age 
more held in subjection by terror than by the still baser 
influence of gain. Our law of forfeiture was well devised 
to stimulate as well as to deter; and Henry VIII., 
better pleased to slaughter the prey than to gorge him- 
self with the carcass, distributed the spoils it brought 
him among those who had helped in the chase. The 
dissolution of monasteries opened a more abundant source 
of munificence ; every courtier, eveiy peer, looked for 
an increase of wealth from grants of, ecclesiastical estates, 
and naturally thought that the king's favour would most 
readily be gained by an implicit conformity to his will. 
Tendency Nothing, however, seems more to have sus- 
of religious tained the arbitrary rule of Henry VIII. than 
the P same the jealousy of the two religious parties formed 
end. i n hi s time, and who, for all the latter years of 

his life, were maintaining a doubtful and emulous contest 
for his favour. But this religious contest, and the ulti- 
mate establishment of the Reformation, are events far 
too important, even in a constitutional history, to be 
treated in a cursory manner ; and as, in order to avoid 
transitions, I have purposely kept them out of sight in 
the present chapter, they will form the proper subject of 
the next. 



Reformation. LOLLARDS. 57 



CHAPTEE II. 

ON THE ENGLISH CHURCH UNDER HENRY VHL, EDWARD VI., 
AND MARY. 



State of Public Opinion as to Religion — Henry VIII.'s Controversy with Luther — 
His Divorce from Catherine — Separation from the Church of Rome — Dissolution 
of Monasteries — Progress of the Reformed Doctrine in England — Its Establish- 
ment under Edward — Sketch of the chief points of Difference between the two 
Religions — Opposition made by part of the Nation — Cranmer — His Modera- 

' tion in introducing changes not acceptable to the Zealots — Mary — Persecution 
under her — Its effect rather favourable to Protestantism. 

No revolution has ever been more gradually prepared 



State of 



than that which separated almost one half of 
Europe from the communion of the Roman see ; pllbiic 
nor were Luther and Zwingle any more than opinion as 

• to rcli (r ion. 

occasional instruments of that change, which, 
had they never existed, would at no great distance of 
time have been effected under the names of some other 
reformers. At the beginning of the sixteenth century 
the learned doubtfully and with caution, the ignorant 
with zeal and eagerness, were tending to depart from 
the faith and rites which authority prescribed. But pro- 
bably not even Germany was so far advanced on this 
course as England. Almost a hundred and fifty years 
before Luther nearly the same doctrines as he taught 
had been maintained by Wicliffe, whose disciples, usually 
called Lollards, lasted as a numerous, though obscure 
and proscribed sect, till, aided by the confluence of 
foreign streams, they swelled into the Protestant Church 
of England. We hear, indeed, little of them during 
some part of the fifteenth century, for they generally 
shunned persecution ; and it is chiefly through records 
of persecution that we learn the existence of heretics. 
But immediately before the name of Luther was known 
they seem to have become more numerous, or to have 
attracted more attention; since several persons were 



58 IMMUNITY OF CLERGY. Chap. II. 

burned for heresy, and others abjured their errors, in 
the first years of Henry VIII.'s reign. Some of these 
(as usual among ignorant men engaging in religious 
speculations) are charged with very absurd notions ; but 
it is not so mateiial to observe their particular tenets as 
the general fact that an inquisitive and sectarian spirit 
had begun to prevail. 

Those who took little interest in theological questions, 
or who retained an attachment to the faith in which they 
had been educated, were in general not less offended than 
the Lollards themselves with the inordinate opulence 
and encroaching temper of the clergy. It had been for 
two or three centuries the policy of our lawyers to 
restrain these within some bounds. No ecclesiastical 
privilege had occasioned such dispute or proved so mis- 
chievous as the immunity of all tonsured persons from 
civil punishment for crimes. It was a material improve- 
ment in the law under Henry VI. that, instead of being 
instantly claimed by the bishop on their arrest for any 
criminal charge, they were compelled to plead their 
privilege at their arraignment, or after conviction. 
Henry VII. carried this much farther, by enacting that 
clerks convicted of felony sbould be burned in the hand. 
And in 1513 (4 H. 8), the benefit of clergy was entirely 
taken away from murderers and highway robbers. An 
exemption was still preserved for priests, deacons, and 
subdeacons. But this was not sufficient to satisfy the 
church, who had been accustomed to shield under the 
mantle of her immunity a vast number of persons in the 
lower degrees of orders, or without any orders at all ; 
and had owed no small part of her influence to those who 
derived so important a benefit from her protection. 
Hence, besides violent language in preaching against 
this statute, the convocation attacked one Dr. Standish, 
who had denied the divine right of clerks to their ex- 
emption from temporal jurisdiction. The temporal courts 
naturally defended Standish; and the parliament ad- 
dressed the king to support him against the malice of his 
persecutors. Henry, after a full debate between the 
opposite parties in his presence, thought his prerogative 
concerned in taking the same side, and the clergy sus- 
tained a mortifying defeat. About the same time a 
citizen of London, named Hun, having been confined 



Reformation. HENRY VIII. AND LUTHER. 59 

on a charge of heresy in the bishop's prison, was found 
hanged in his chamber ; and though this was asserted to 
be his own act, yet the bishop's chancellor was indicted for 
the murder on such vehement presumptions that he would 
infallibly have been convicted, had the attorney-general 
thought fit to proceed in the trial. This occurring at the 
same time with the affair of Standish, furnished each 
party with an argument ; for the clergy maintained that 
they should have no chance of justice in a temporal 
court ; one of the bishops declaring that the London juries 
were so prejudiced against the church that they would 
find Abel guilty of the murder of Cain. Such an admission 
is of more consequence than whether Hun died by his 
own hands or those of a clergyman ; and the story is 
chiefly worth remembering, as it illustrates the popular 
disposition towards those who had once been the objects 
of reverence." 

Such was the temper of England when Martin Luther 
threw down his gauntlet of defiance against the Henry 
ancient hierarchy of the Catholic church. But, viii's con- 
ripe as a great portion of the people might be with** 7 
to applaud the efforts of this reformer, they Luther, 
were viewed with no approbation by their sovereign. 
Henry had acquired a fair portion of theological learning, 
and on reading one of Luther's treatises, was not only 
shocked at its tenets, but undertook to refute them in a 
formal answer. b Kings who divest themselves of their 
robes to mingle among polemical writers have not per- 
haps a claim to much deference from strangers ; and 
Luther, intoxicated with arrogance, and deeming him- 
self a more prominent individual among the human 
species than any monarch, treated Henry, in replying to 

a Burnet; Reeves's History of the Law, (vol. iii. 171), and others have been of 

iv. p. 308. The contemporary authority the same opinion. The king, however, 

is Keilwey's Reports. Collier disbelieves in his answer to Luther's apologetical 

the murder of Hun on the authority of letter, where this was insinuated, declares 

sir Thomas More ; but he was surely a it to be his ow n. From Henry's general 

prejudiced apologist of the clergy, and character and proneness to theological 

this historian is hardly less so. An entry disputation, it may be inferred that he 

on the journals, 7 H. 8, drawn of course had at least a considerable share in the 

by some ecclesiastic, particularly com- work, though probably with the assist- 

plains of Standish as the author of peri- ance of some who had more command of 

culosissimoe seditiones inter clericam et the Latin language. Burnet mentions in 

secularem potestatem. another place, that he had seen a copy of 

b Burnet is confident that the answer the Necessary Erudition of a Christian 

to Luther was not written by Henry Man, full of interlineations by the king. 



60 HENRY'S DIVORCE Chap. II. 

his book, with the rudeness that characterised his tem- 
per. A few years afterwards indeed he thought proper 
to write a letter of apology for the language he had held 
towards the king ; but this letter, a strange medley of 
abjectness and impertinence, excited only contempt in 
Henry, and was published by him with a severe com- 
mentary. Whatever apprehension, therefore, for the 
future might be grounded on the humour of the nation, 
no king in Europe appeared so stedfast in his allegiance 
to Kome as Henry VIII. at the moment when a storm 
sprang up that broke the chain for ever. 

It is certain that Honiy's marriage, with his brother's 
H widow was unsupported by any precedent, and 

from ' that although the pope's dispensation might pass 
Catherine. f or a cure f a jj defects, it had been originally 
considered by many persons in a very different light 
from those unions which are merely prohibited by the 
canons. He himself, on coming to the age of fourteen, 
entered a protest against the marriage which had been 
celebrated more than two years before, and declared his 
intention not to confirm it ; an act which must naturally 
be ascribed to his father.* 1 It is true that in this very 

c Epist. Lutheri ad Henricum regem tumque regem per malignos istos opera- 

missa, &c. Lond. 1526. The letter bears rios; prasertim cum sim faex et vermis, 

date at Wittenberg, Sept. 1, 1525. It quemsolo contemptuoportuit victumaut 

had no relation, therefore, to Henry's neglectum esse," &c. Among the many 

quarrel with the pope, though probably strange things which Luther said and 

Luther imagined that the king was be- wrote, I know not one more extravagant 

coming more favourably disposed. After than this letter, which almost justifies 

saying that he had written against the the supposition that there was a vein 

king, " stultus ac prreceps," which was of insanity in his very remarkable cha- 

true, he adds, " invitantibus iis qui ma- racter. 

jestati tuse parum favebant," which was d Collier, vol. ii. Appendix, No. 2. 

surely a pretence ; since who, at AVit- In the Hardwicke Papers, i. 13, we have 

tenberg, in 1521, could have any motive an account of the ceremonial of the 

to wish that Henry should be so scur- first marriage of Henry with Catherine 

rilously treated ? He then bursts out in 1503. It is remarkable that a person 

into the most absurd attack on Wolsey ; was appointed to object publicly in Latin 

" illud monstrum et publicum odium to the marriage as unlawful, for reasons 

Dei et hominum, Cardinalis Eboracensis, he should there exhibit; "whereunto 

pestis ilia regni tui." This was a sin- Mr. Doctor Barnes shall reply, and de- 

gular style to adopt in writing to a kiug, clare solemnly, also in Latin, the said 

whom he affected to propitiate ; AVolsey marriage to be good and effectual in the 

being nearer than any man to Henry's law of Christ's church, by virtue of a 

heart. Thence relapsing into his tone dispensation, which he shall have then to 

of abasement, he says, "ita ut vehemen- be openly read." There seems to be some- 

ter nunc pudefactus, metuam oculos thinginthisof the tortuous policy of Henry 

coram majestate tu& levare, qui passus VII. ; but it shows that the marriage had 

sim levitate istfl me moveri in talem tan- given offence to scrupulous minds. 



Reformation. FROM CATHERINE. 61 

instrument we find no mention of the impediment on the 
score of affinity; yet it is hard to suggest any other 
objection, and possibly a common form had been adopted 
in drawing up the protest. He did not cohabit with 
Catherine during his father's lifetime. Upon his own 
accession he was remarried to her; and it does not 
appear manifest at what time his scruples began, nor 
whether they preceded his passion for Anne Boleyn. e 
This, however, seems the more probable supposition ; 
yet there can be little doubt that weariness of Catherine's 
person, a woman considerably older than himself, and 
unlikely to bear more children, had a far greater effect 
on his conscience than the study of Thomas Aquinas or 
any other theologian. It by no means follows from 
hence that, according to the casuistry of the Catholic 
church and the principles of the canon law, the merits 
of that famous process were so much against Henry, as, 
out of dislike to him and pity for his queen, we are apt 
to imagine, and as the writers of that persuasion have 
subsequently assumed. 

It would be unnecessary to repeat what is told by so 
many historians, the vacillating and evasive behaviour 
of Clement VII., the assurances he gave the king, and 
the arts with which he receded from them, the unfinished 
trial in England before his delegates, Campeggio and 
Wolsey, the opinions obtained from foreign universities 
in the king's favour, not always without a little bribery/ 
and those of the same import at home, not given without 
a little intimidation, or the tedious continuance of the 
process after its adjournment to Rome. More than five 
years had elapsed from the first application to the pope, 
before Henry, though by nature the most uncontrollable 
of mankind, though irritated by perpetual chicanery and 

e See Burnet, Lingard, Turner, and the in 1528 and 1532. Vol. i. Append, 

letters lately printed in State Papers, pp. 30, 110. See, too, Strype, i. Append, 

temp. Henry VIII. pp. 194, 196. No. 40. 

f Burnet wishes to disprove the bri- The same writer will not allow that 

bery of these foreign doctors. But there Henry menaced the university of Oxford 

are strong presumptions that some opi- in case of non-compliance ; yet there are 

nil >n» were got by money (Collier, ii. 58) ; three letters of his to them, a tenth part 

and the greatest difficulty was found, of which, considering the nature of the 

where corruption perhaps had least in- writer, was enough to terrify his readers, 

fluence, in the Sorbonne. Burnet himself Vol. iii. Append, p. 25. These probably 

proves that some of the cardinals were Burnet did not know when he published 

bribed by the king's ambassador, both his first volume. 



62 HENRY'S DIVORCE Chap. II. 

breach of promise, though stimulated by impatient love, 
presumed to set at nought the jurisdiction to which he 
had submitted, by a marriage with Anne. Even this 
was a furtive step ; and it was not till compelled by the 
consequences that he avowed her as his wife, and was 
finally divorced from Catherine by a sentence of nullity, 
which would more decently no doubt have preceded his 
second marriage. 8 But, determined as his mind had 
become, it was plainly impossible for Clement to have 
conciliated him by anything short of a decision which 
he could not utter without the loss of the emperor's 
favour, and the ruin of his own family's interests in 
Italy. And even for less selfish reasons it was an ex- 
tremely embarrassing measure for the pope, in the cri- 
tical circumstances of that age, to set aside a dispensation 
granted by his predecessor ; knowing that, however some 
erroneous allegations of fact contained therein might 
serve for an outward pretext, yet the piinciple on which 
the divorce was commonly supported in Europe went 
generally to restrain the dispensing power of the holy 
see. Hence it may seem very doubtful whether the 
treaty which was afterwards partially renewed through 
the mediation of Francis I., during his interview with 
the pope at Nice about the end of 1533, could have led 
to a restoration of amity through the only possible means ; 
when we consider the weight of the imperial party in the 

S The king's marriage is related by of the marriage, he would not have gone 

the earlier historians to have taken place beyond the limits of that character of 

Nov. 14, 1532. Burnet, however, is an advocate for one party which he has 

convinced by a letter of Cranmer, who, chosen to assume. It may not be un- 

he says, could not be mistaken, though likely, though by no means evident, that 

he was not apprised of the fact till some Anne's prudence, though, as Fuller says 

time afterwards, that it was not so- of her, " she was cunning in her chas- 

lemnised till about the 25th of January tity," was surprised at the end of this 

(vol. iii. p. 70). This letter has since long courtship. I think a prurient cu- 

been published in the Arch«ologia, vol. riosity about such obsolete scandal very 

xviii., and in Ellis's Letters, ii. 34. unworthy of history. But when this 

Elizabeth was born September 1, 1533, author asserts Henry to have cohabited 

for though Burnet, on the authority, he with her for three years, and repeatedly 

says, of Cranmer, places her birth on calls her his mistress, when he attributes 

Sept. 14, the former date is decisively Henry's patience with the pope's chi- 

confirmed by letters in Harl. MSS. vol. canery to " the infecundity of Anne," 

cexxxxm. 22, and vol. dcclxxxvii. 1, and all this on no other authority than a 

(both set down incorrectly in the cata- letter of the French ambassador, which 

lngue). If a late historian therefore had amounts hardly to evidence of a transient 

contented himself with commenting on rumour, we cannot but complain of a 

these dates and the clandestine nature great deficiency in historical candour. 



Reformation. FROM CATHERINE. 63 

conclave, the discredit that so notorious a submission 
would have thrown on the church, and, above all, the 
precarious condition of the Medici at Florence in case of 
a rupture with Charles V. It was more probably the 
aim of Clement to delude Hemy once more by his pro- 
mises ; but this was prevented by the more violent mea- 
sure into which the caidinals forced him, of a definitive 
sentence in favour of Catherine, whom the king was 
required under pain of excommunication to take back as 
his wife. This sentence of the 23rd of March, 1534, 
proved a declaration of interminable war ; and the king, 
who, in consequence of the hopes held out to him by 
Francis, had already despatched an envoy to Eome with 
his submission to what the pope should decide, now 
resolved to break off all intercourse for ever, and trust 
to his own prerogative and power over his subjects for 
securing the succession to the crown in the line which 
he designed. It was doubtless a regard to this consi- 
deration that put him upon his last overtures for an 
amicable settlement with the court of Eome. h 

h The principal authority on the story a letter of the king, which Burnet him- 

of Henry's divorce from Catherine is self had printed, vol. i. Append. 78, 

Burnet, in the first and third volumes of mentioning the queen's presence as well 

his History of the Reformation; the as his own, on June 21, and greatly cor- 

latter correcting the former from addi- roborating the popular account. To say 

tional documents. Strype, in his Eccle- the truth, there is no small difficulty 

siastical Memorials, adds some particulars in choosing between two authorities so 

not contained in Burnet, especially as to considerable, if they cannot be recon- 

the negotiations with the pope in 1528; ciled, which seems impossible; but, 

and a very little may be gleaned from upon the whole, the preference is due to 

Collier, Carte, and other writers. There Henry's letter, dated June 23, as he 

are few parts of history, on the whole, amid not be mistaken, and had no motive 

that have been better elucidated. One to misstate. 

exception perhaps may yet be made. This is not altogether immaterial ; for 
The beautiful and affecting story of Catherine's appeal to Henry, de integri- 
Catherine's behaviour before the legates tate corporis usque ad secundas nuptias 
at Dunstable is told by Cavendish and servata, without reply on his part, is an 
Hall, from whom later historians have important circumstance as to that part of 
copied it. Burnet, however, in his third the question. It is, however, certain, 
volume, p. 46, disputes its truth, and on that, whether on this occasion or not, 
what should seem conclusive authority, she did constantly declare this ; and the 
that of the original register, from which evidence adduced to prove the contrary 
it appears that the queen never came into is very defective, especially as opposed 
court but once, June 18, 1529, to read a to the assertion of so virtuous a woman, 
paper protesting against the jurisdiction, Dr. Lingard says that all the favourable 
and that the king never entered it answers which the king obtained from 
Carte accordingly treated the story as a foreign universities went upon the sup- 
fabrication. Hume of course did not position that the former marriage had 
choose to omit so interesting a circum- been consummated, and were of no avail 
stance ; but Dr. Lingard has pointed out unless that could be proved. See a 



64 RUPTURE WITH ROME. Chap. II. 

But, long before this final cessation of intercourse with 
that court, Henry had entered upon a course of measures 
which would have opposed fresh obstacles to a renewal 
of the connection. He had found a great part of his 
subjects in a disposition to go beyond all he could wish 
in sustaining his quarrel, not in this instance from mere 
terror, but because a jealousy of ecclesiastical power and 
of the Eoman court had long been a sort of national sen- 
timent in England. The pope's avocation of the process 
to Home, by which his duplicity and alienation from the 
king's side were made evident, and the disgrace of 
Wolsey, took place in the summer of 1529. The parlia- 
ment which met soon afterwards was continued through 
several sessions (an unusual circumstance), till it com- 
pleted the separation of this kingdom from the supremacy 
of Eome. In the progress of ecclesiastical usurpation, 
the papal and episcopal powers had lent mutual support 
to each other ; both consequently were involved in the 
same odium, and had become the object of restrictions in 
a similar spirit. Warm attacks were made on the clergy 
by speeches in the commons, which bishop Fisher 
severely reprehended in the upper house. This pro- 
voked the commons to send a complaint to the king by 
their speaker, demanding reparation ; and Fisher ex- 
plained away the words that had given offence. An act 
passed to limit the fees on probates of wills, a mode of 
ecclesiastical extortion much complained of, and upon 
mortuaries.' The next proceeding was of a far more 
serious nature. It was pretended that Wolsey's exercise 
of authority as papal legate contravened a statute of 
Kichard II., and that both himself and the whole body 
of the clergy, by their submission to him, had incurred 
the penalties of a praemunire, that is, the forfeiture of 
their moveable estate, besides imprisonment at discretion. 
These old statutes in restraint of the papal jurisdiction 
had been so little regarded, and so many legates 'had 
acted in England without objection, that Henry's prose- 



letter of Wolsey to the king, July 1, 1. 73; Burnet, 83. It cost a thousand 
1527, printed in State Papers, temp, marks to prove Sir William Compton's 
Henry VIII., p. 194; whence it appears will in 1528. These exactions had been 
that the queen had been consistent in her much augmented by Wolsey, who inter- 
denial, fered, as legate, with the prerogative 
i Stat. 21 Hen. 8, cc. 5, 6; Strype, court. 



Reformation. ABOLITION OF ANNATES. 65 

cution of the church on this occasion was extremely 
harsh and unfair. The clergy, however, now felt them- 
selves to he the weaker party. In convocation they 
implored the king's clemency, and obtained it by paying 
a large sum of money. In their petition he was styled 
the protector and supreme head of the church and clergy 
of England. Many of that body were staggered at the 
unexpected introduction of a title that seemed to strike 
at the supremacy they had always acknowledged in the 
Eoman see. And in the end it passed only with a very 
suspicious qualification, " so far as is permitted by the 
law of Christ." Henry had previously given the pope 
several intimations that he could proceed in his divorce 
without him. For, besides a strong remonstrance by 
letter from the temporal peers as well as bishops against 
the procrastination of sentence in so just a suit, the 
opinions of English and foreign universities had been 
laid before both houses of parliament and of convocation, 
and the divorce approved without difficulty in the for- 
mer, and by a great majority in the latter. These pro- 
ceedings took place in the first months of 1531, while 
the king's ambassadors at Eome were still pressing for a 
favourable sentence, though with diminished hopes. Next 
year the annates, or first fruits of benefices, a constant 
source of discord between the nations of Europe and 
their spiritual chief, were taken away by act of parlia- 
ment ; but with a remarkable condition, that if the pope 
would either abolish the payment of annates, or reduce 
them to a moderate burthen, the king might declare 
before the next session, by letters patent, whether this 
act, or any part of it, should be observed. It was accord- 
ingly confirmed by letters patent more than a year after 
it received the royal assent. 

It is difficult for us to determine whether the pope, by 
conceding to Henry the great object of his solicitude, 
could in this stage have not only arrested the progress 
of the schism, but recovered his former ascendancy over 
the English church and kingdom. But probably he 
could not have done so in its full extent. Sir Thomas 
More, who had rather complied than concurred with 
the proceedings for a divorce (though his acceptance 
of the great seal on Wolsey's disgrace woidd have been 
inconsistent with his character, had he been altogether 

VOL. i. F 



66 THE KING SUPREME HEAD. Chap. II. 

opposed in conscience to the king's measures), now 
thought it necessary to resign, when the papal authority- 
was steadily, though gradually, assailed.* In the next 
session an act was passed to take away all appeals to 
Rome from ecclesiastical courts, which annihilated at 
one stroke the jurisdiction built on long usage and on 
the authority of the false decretals. This law rendered 
the king's second marriage, which had preceded it, secure 
from being annulled by the papal court. Henry, how- 
ever, still advanced very cautiously, and on the death of 
AVarham, archbishop of Canterbury, not long before this 
time, applied to Eome for the usual bulls in behalf of 
Cranmer, whom he nominated to the vacant see. These 
were the last bulls obtained, and probably the last in- 
stance of any exercise of the papal supremacy in this 
reign. An act followed in the next session, that bishops 
elected by their chapter on a royal recommendation 
should be consecrated, and archbishops receive the pall, 
without suing for the pope's bulls. All dispensations 
and licences hitherto granted by that court were set 
aside by another statute, and the power of issuing them 
in lawful cases transferred to the archbishop of Canter- 
bury. The king is in this act recited to be the supreme 
head of the church of England, as the clergy had two 
years before acknowledged in convocation. But this 
title was not formally declared by parliament to apper- 
tain to the crown till the ensuing session of parliament. 1 " 

k It is hard to say what were More's a matter wholly of the pope's compe- 

original sentiments about the divorce, tence, and which no other party could 

In a letter to Cromwell (Strype, i. 183, take out of his hands, though he had 

and App. No. 48 ; Burnet, App. p. 280) gone along cheerfully, as Burnet says, 

he speaks of himself as always doubtful, with the prosecution against the clergy, 

But if his disposition had not been rather and wished to cut off the illegal juris- 

favourable to the king, would he have diction of the Roman see. The king did 

been offered, or have accepted, the great not look upon him as hostile ; for even 

seal? AVe do not indeed find his name so late as 1532, Dr. Bennet, the envoy at 

in the letter of remonstrance to the Rome, proposed to the pope that the 

pope, signed by the nobility and chief cause should be tried by four commis- 

commoners in 1530, which Wolsey, though sioners, of whom the king should name 

then in disgrace, very willingly sub- one, either sir Thomas More, or Stokesly, 

scribed. But in March, 1531, he went bishop of London. Burnet, i. 126. 
down to the house of commons, attended m Dr. Lingard has pointed out, as 

by several lords, to declare the king's Bnrnet had done less distinctly, that 

scruples about his marriage, and to lay the bill abrogating the papal supremacy 

before them the opinions of universities, was brought into the commons in the 

In this he perhaps thought himself acting beginning of March, and received the 

ministerially. But there can be no doubt royal assent on the 30th; whereas the 

that he always considered the divorce as determination of the conclave at Rome 



Reformation AVERSION TO THE D1VOW E. 67 

By these means was the church of England altogether 
emancipated from the superiority of that of 
Rome. For as to the pope's merely spiritual fiX™?* " 
primacy and authority in matters of faith, which church of 
are, or at least were, defended by Catholics of 
the Gallican or Cisalpine school on quite different grounds 
from his jurisdiction or his legislative power in points of 
discipline, they seem to have attracted little peculiar 
attention at the time, and to have dropped off as a dead 
branch, when the axe had lopped the fibres that gave it 
nourishment. Like other momentous revolutions this 
divided the judgment and feelings of the nation. In the 
previous affair of Catherine's divorce, generous minds 
were more influenced by the rigour and indignity of her 
treatment than by the king's inclinations, or the venal 
opinions of foreign doctors in law. Bellay, bishop of 
Bayonne, the French ambassador at London, wrote home 
in 1528 that a revolt was apprehended from the general 
unpopularity of the divorce." Much difficulty was found 
in procuring the judgments of Oxford and Cambridge 
against the marriage ; which was effected in the former 
case, as is said, by excluding the masters of arts, the 
younger and less worldly part of the university, from 
their right of suffrage. Even so late as 1532, in the 
pliant house of commons a member had the boldness to 
move an address to the king that he would take back his 
wife. And this temper of the people seems to have been 
the great inducement with Henry to postpone any sen- 
tence by a domestic jurisdiction, so long as a chance of 
the pope's sanction remained. 

The aversion entertained by a large part of the com- 
munity, and especially of the clerical order, towards the 
divorce, was not perhaps so generally founded upon 
motives of justice and compassion as on the obvious ten- 
dency which its prosecution latterly manifested to bring 
about a separation from Borne. Though the principal 
Lutherans of Germany were far less favourably disposed 

against the divorce was on the 23rd ; so diction in England. On the other hand, 

that the latter could not have been the so flexible were the parliaments of this 

cause of this final rupture. Clement VII. reign, that if Henry had made terms with 

might have been outwitted in his turn the pope, the supremacy might have 

by the king, if, after pronouncing a revived again as easily as it had been, 

decree in favour of the divorce, he had extinguished, 

found it too late to regain his juris- " Burnet, iii. 44, and App. 24. 

f2 



68 GROWING TASTE FOR PROTESTANT DOCTRINE. Chap. II. 

to the king in their opinions on this subject than the 
catholic theologians, holding that the prohibition of 
marrying a brother's widow in the Levitical law was not 
binding on Christians, or at least that the marriage ought 
not to be annulled after so many years' continuance," yet 
in England the interests of Anne Boleyn and of the 
Eeformation were considered as the same. She was her- 
self strongly suspected of an inclination to the new 
tenets ; and her friend Cranmer had been the most active 
person both in promoting the divorce and the recogni- 
tion of the king's supremacy. The latter was, as I 
imagine, by no means unacceptable to the nobility and 
gentry, who saw in it the only effectual method of 
cutting off the papal exactions that had so long im- 
poverished the realm ; nor yet to the citizens of London 
and other large towns, who, with the same dislike of the 
Roman court, had begun to acquire some taste for the 
Protestant doctrine. But the common people, especially 
in remote countries, had been used to an implicit rever- 
ence for the holy see, and had suffered comparatively 
little by its impositions. They looked up also to their 
own teachers as guides 'in faith ; and the main body of 
the clergy were certainly very reluctant to tear them- 

° Conf. Burnet, i. 94, and App.No. 35 ; Jenkins's edition, i. 303.] Clement VII., 
Strype, i. 230; Sleidan, Hist, de la however, recommended the king to marry 
BeTormation, par Courayer, 1. 10. The immediately, and then prosecute his suit 
notions of these divines, as here stated, for a divorce, which it would be easier 
are not very consistent or intelligible, for him to obtain in such circumstances. 
The Swiss reformers were in favour of This was as early as January, 1528. 
the divorce, though they advised that (Burnet, i. App. p. 27.) But at a much 
the princess Mary should not be declared later period, September, 1530, he ex- 
illegitimate. Luther seems to have in- pressly suggested the expedient of allow- 
clined towards compromising the dif- ing the king to retain two wives, 
ference by the marriage of a secondary Though the letter of Cassali, the king's 
wife. Lingard, p. 172. Melanchthon, ambassador at Rome, containing this 
this writer says, was of the same opinion, proposition, was not found by Burnet, 
Burnet indeed denies this; but it is it is quoted at length by an author of 
rendered not improbable by the well- unquestionable veracity, lord Herbert, 
authenticated fact that these divines, Henry had himself, at one time, favoured 
together with Bucer, signed a permission this scheme, according to Burnet, who 
to the landgrave of Hesse to take a wife does not, however, produce any authority 
or concubine, on account of the drunken- for the instructions to that effect said to 
ness and disagreeable person of his land- have been given to Brian and Vannes, 
graVine. Bossuet, Hist, des Var. des Egl. despatched to Home at the end of 1528. 
Protest, vol. i., where the instrument is But at the time when the pope made 
published. [Cranmer, it is just to say, this proposal, the king bad become ex- 
Temonstrated with Osiander on this per- asperated against Catherine, and little 
mission, and on the general laxity of the inclined to treat either her or the holy 
Lutherans in matrimonial questions, see with any respect. 



Reformation. DISSOLUTION OF MONASTERIES. 69 

selves, at the pleasure of a disappointed monarch, in the 
most dangerous crisis of religion, from the bosom of 
catholic unity . p They complied indeed with all the 
measures of government far more than men of rigid con- 
science could have endured to do ; but many, who wanted 
the courage of More and Fisher, were not far removed 
from their way of thinking.* 1 This repugnance to so 
great an alteration showed itself above all in the monas- 
tic orders, some of whom by wealth, hospitality, and 
long-established dignity, others by activity in preaching 
and confessing, enjoyed a very considerable influence 
over the poorer class. But they had to deal with a 
sovereign whose policy as well as temper dictated that 
he had no safety but in advancing ; and their disaffection 
to his government, while it overwhelmed them in ruin, 
produced a second grand innovation in the ecclesiastical 
polity of England. 

The enormous, and in a great measure ill-gotten, opu- 
lence of the regular clergy had long since ex- _. . . 
cited jealousy in every part of Europe. Though of monas- 
the statutes of mortmain under Edward I. and tenes ' 
Edward III. had put some obstacle to its increase, yet, 
as these were eluded by licences of alienation, a larger 
proportion of landed wealth was constantly accumulating 
in hands which lost nothing that they had grasped/ A 
writer much inclined to partiality towards the monasteries 
says that they held not one-fifth part of the kingdom ; no 
insignificant patrimony ! He adds, what may probably 
be true, that through granting easy leases they did not 
enjoy more than one-tenth in value.* These vast posses- 
sions were very unequally distributed among four or five 
hundred monasteries. Some abbots, as those of Reading, 
Glastonbury, and Battle, lived in princely splendour, and 

P Strype, i. 151 et alibi. conclusions and general results from 

1 Strype, passim. Tunstal, Gardiner, nearly the same premises. Collier, 

and Bonner wrote in favour of the royal though with many prejudices of his own, 

supremacy; all of them, no doubt, in- is, ail things considered, the fairest of 

sincerely. The first of these has escaped our ecclesiastical writers as to this reign. 

severe censure by the mildness of his r Burnet, 188. For the methods by 

general character, but waa full as much which the regulars acquired wealth, fair 

a temporiser as Cranmer. But the his- and unfair, I may be allowed to refer to 

tory of this period has been written with the View of the Middle Ages, ch. 1, or 

such undisguised partiality by Burnet rather to the sources from which the 

and Strype on the one hand, and lately sketch there given was derived, 

by Dr. Lingard on the other, that it is * Banner's Specimens of Errors in 

almost amusing to find the most opposite Burnet. 



70 WOLSEY'S VISITATION. Chap. II. 

were in every sense the spiritual peers and magnates of 
the realm. In other foundations the revenues did little 
more than afford a subsistence for the monks, and defray 
the needful expenses. As they were in general exempted 
from episcopal visitation, and entrusted with the care of 
their own discipline, such abuses had gradually prevailed 
and gained strength by connivance, as we may naturally 
expect in corporate bodies of men leading almost of 
necessity useless and indolent lives, and in whom very 
indistinct views of moral obligations were combined with 
a great facility of violating them. The vices that for 
many ages had been supposed to haunt the monasteries 
had certainly not left their precincts in that of Hemy 
VIII. Wolsey, as papal legate, at the instigation of Fox, 
bishop of Hereford, a favourer of the Reformation, com- 
menced a visitation of the professed as well as secular 
clergy in 1523, in consequence of the general complaint 
against their manners.' This great minister, though not 
perhaps very rigid as to the morality of the church, was 
the first who set an example of reforming monastic 
foundations in the most efficacious manner, by converting 
their revenues to different purposes. Full of anxious 
zeal for promoting education, the noblest part of his 
character, he obtained bulls from Eome suppressing 
many convents (among which was that of St. Frideswide 
at Oxford), in order to erect and endow a new college in 
that university, his favourite work, which after his fall 
was more completely established by the name of Christ 
Church." A few more were afterwards extinguished 
through his instigation ; and thus the prejudice against 
interference with this species of property was somewhat 
worn off, and men's minds gradually prepared for the 
sweeping confiscations of Cromwell. The king indeed 
was abundantly willing to replenish his exchequer by 
violent means, and to avenge himself on those who gain- 
sayed his supremacy; but it was this able statesman 
who, prompted both by the natural appetite of ministers 
for the subject's money, and, as has been generally sur- 
mised, by a secret partiality towards the Reformation, 
devised and carried on with complete success, if not with 

t Strype, i. App. 19. wickedness that prevailed therein. Strype 

u Burnet; Strype. Wolsey alleged as says the number was twenty; but Col- 
the ground for this suppression, the great lier, ii. 19, reckons them at forty. 



Reformation-. PROCEEDINGS OF CROMWELL. 71 

the utmost prudence, a measure of no inconsiderable 
hazard and difficulty. For such it surely was under a 
system of government which rested so much on antiquity, 
and in spite of the peculiar sacredness which the English 
attach to all freehold property, to annihilate so many 
prescriptive baronial tenures, the possessors whereof 
composed more than a third part of the house of lords, and 
to subject so many estates which the law had rendered 
inalienable, to maxims of escheat and forfeiture that had 
never been held applicable to their tenure. But for this 
purpose it was necessary, by exposing the gross corrup- 
tions of monasteries, both to intimidate the regular 
clergy and to excite popular indignation against them. 
It is not to be doubted that in the visitation of these 
foundations under the direction of Cromwell, as lord 
vicegerent of the king's ecclesiastical supremacy, many 
things were done in an arbitrary manner, and much was 
unfairly represented." Yet the reports of these visitors 
are so minute and specific that it is rather a preposterous 
degree of incredulity to reject their testimony whenever 
it bears hard on the regulars. It is always to be remem- 
bered that the vices to which they bear witness are not 
only probable from the nature of such foundations, but 
are imputed to them by the most respectable writers of 
preceding ages. Nor do I find that the reports of this 
visitation were impeached for general falsehood in that 
age, whatever exaggeration there might be in particular 
cases. And surely the commendation bestowed on some 
religious houses as pure and unexceptionable, may afford 
a presumption that the censure of others was not an in- 
discriminate prejudging of their merits/ 

x Collier, though not implicitly to be Romanising high-chnrch men, such as 

trusted, tells some hard truths, and Collier, and the whole class of antiquaries, 

charges Cromwell with receiving bribes Wood, Hearne, Drake, Browne, Willis, 

from several abbeys, in order to spare &c, &c, who are, with hardly an excep- 

them, p. 159. This is repeated by Lin- tion, partial to the monastic orders, and 

gard, on the authority of some Cottonian sometimes scarce keep on the mask of 

manuscripts. Even Burnet speaks of the protestantism. No one fact can be better 

violent proceedings of a doctor Loudon supported by current opinion, and that 

towards the monasteries. This man was general testimony which carries convic- 

of infamous character, and became after- tion, than the relaxed and vicious state 

wards a conspirator against Cranmer and of those foundations for many ages before 

a persecutor of protestants. their fall. Ecclesiastical writers had not 

y Burnet, 190; Strype, i. ch. 35, see then learned, as they have since, the trick 

especially p. 257 ; Ellis's Letters, ii. 71. of suppressing what might excite odium 

We should be on our guard against the against their church, but speak out boldly 



72 SURRENDER OF GREAT FOUNDATIONS. Chap. II. 

The dread of these visitors soon induced a number of 
abbots to make surrenders to the king ; a step of very 
questionable legality. But in the next session the smaller 
convents whose revenues were less than 200Z. a year, 
were suppressed by act of parliament to the number of 
three hundred and seventy-six, and their estates vested 
in the crown. This summary spoliation led to the great 
northern rebellion soon afterwards. It was, in fact, not 
merely to wound the people's strongest impressions of 
religion, and especially those connected with their de- 
parted friends for whose souls prayers were offered in 
the monasteries, but to deprive the indigent in many 
places of succour, and the better rank of hospitable re- 
ception. This of course was experienced in a far greater 
degree at the dissolution of the larger monasteries, which 
took place in 1540. But, Henry having entirely subdued 
the rebellion, and being now exceedingly dreaded by 
both the religious parties, this measure produced no 
open resistance, though there seems to have been less 
pretext for it on the score of immorality and neglect of 
discipline than was found for abolishing the smaller con- 
vents. 2 These great foundations were all surrendered ; 
a few excepted, which, against every principle of received 
law, were held to fall by the attainder of their abbots for 
high treason. Parliament had only to confirm the king's 
title arising out of these surrenders and forfeitures. Some 

and bitterly. Thus we find in Wilkins. z The preamble of 21 H. 8, c. 28, 
iii. 630, a bull of Innocent VIII. for the which gives the smaller monasteries to 
reform of monasteries in England, charg- the king, after reciting that " manifest 
ing many of them with dissoluteness of sin, vicious, carnal and abominable living, 
life. And this is followed by a severe is daily used and committed commonly 
monition from archbishop Morton to the in such little and small abbeys, priories, 
abbot of St. Alban's, imputing all kinds and other religious houses of monks, 
of scandalous vices to him and his monks, canons, and nuns, where the congregation 
Those who reject at once the reports of of such religious persons is under the 
Henry's visitors, will do well to consider number of twelve persons,'' bestows 
this. See also Fosbrook's British Monach- praise on many of the greater found- 
ism, passim. [The " Letters relating to ations, and certainly does not intimate 
the Suppression of Monasteries," pub- that their fate was so near at hand. Nor 
lished by the Camden Society, and edited is any misconduct alleged or insinuated 
by Mr. Thomas Wright, 1843, contain a against the greater monasteries in the 
part only of extant documents illustra- act 31 H. 8, c. 13, that abolishes them ; 
tive of this great transaction. There which is rather more remarkable, as in 
seems no reason for setting aside their some instances the religious had been 
evidence as wholly false, though some induced to confess their evil lives and ill 
lovers of monachism raised a loud cla- deserts. Burnet, 236. 
mour at their publication. 1845.] 



Reformation. FALL OF MITRED ABBOTS. 73 

historians assert the monks to have been turned adrift 
with a small sum of money. But it rather appears that 
they generally received pensions not inadequate, and 
which are said to have been pretty faithfully paid." 
These however were voluntary gifts on the part of the 
crown. For the parliament which dissolved the monas- 
tic foundations, while it took abundant care to preserve 
any rights of property which private persons might 
enjoy over the estates thus escheated to the crown, 
vouchsafed not a word towards securing the slightest 
compensation to the dispossessed owners. 

The fall of the mitred abbots changed the proportions 
of the two estates which constitute the upper house of 
parliament. Though the number of abbots and priors 
to whom writs of summons were directed varied con- 
siderably in different parliaments, they always, joined 
to the twenty-one bishops, preponderated over the tem- 
poral peers. b It was no longer possible for the prelacy 
to offer an efficacious opposition to the reformation they 
abhorred. Their own baronial tenure, their high dignity 
as legislative councillors of the land, remained ; but, one 
branch as ancient and venerable as their own thus lopped 
off, the spiritual aristocracy was reduced to play a veiy 

a Id. Ibid, and Append, p. 151 ; Col- among them as private property. It 

lier, 167. The pensions to the superiors cannot of course be denied that the com- 

of the dissolved greater monasteries, says pulsory change of life was to many a 

a writer not likely to spare Henry's go- severe and an unmerited hardship ; but 

vernment, appear to have varied from no great revolution, and the Reformation 

266 J. to 6l. per annum. The priors of as little as any, could be achieved with- 

cells received generally 132. A few, out much private suffering, 

whose services had merited the distinc- t> The abbots sat till the end of the 

tion, obtained 20l. To the other monks first session of Henry's sixth parliament, 

were allotted pensions of six, four, or the act extinguishing them not having 

two pounds, with a small sum to each passed till the last day. In the next 

at his departure, to provide for his im- session they do not appear, the writ of 

mediate wants. The pensions to nuns summons not being supposed to give 

averaged about 41. Lingard, vi. 341. He them personal seats. There are indeed 

admits that these were ten times their so many parallel instances among spi- 

present value in money; and surely they ritual lords, and the principle is so ob- 

were not unreasonably small. Compare, vious, that it would not be worth noticing, 

them with those, generally and justly but for a strange doubt said to be thrown 

thought munificent, which this country out by some legal authorities, near the 

bestows on her-veterans of Chelsea and beginning of George III.*s reign, in the 

Greenwich. The monks had no right to case of Pearce, bishop of Rochester, 

expect more than the means of that hard whether, after resigning his see, he would 

fare to which they ought by their rules not retain his seat as a lord of parlia- 

to have been confined in the convents, ment; in consequence of which his re- 

The whole revenues were not to be shared signation was not accepted. 



74 POLICY OF THE DISSOLUTION. Chap. II. 

secondary part in the councils of the nation. Nor could 
the Frotestant religion have easily been established by 
legal methods under Edward and Elizabeth without this 
previous destruction of the monasteries. Those who, 
professing an attachment to that religion, have swollen 
the clamour of its adversaries against the dissolution of 
foundations that existed only for the sake of a different 
faith and worship, seem to me not very consistent or 
enlightened reasoners. In some the love of antiquity 
produces a sort of fanciful illusion ; and the very sight 
of those buildings, so magnificent in their prosperous 
hour, so beautiful even in their present ruin, begets a 
sympathy for those who founded and inhabited them. 
In many, the violent courses of confiscation and attainder 
which accompanied this great revolution excite so just 
an indignation, that they either forget to ask whether 
the end might not have been reached by more laudable 
means, or condemn that end itself either as sacrilege, or 
at least as an atrocious violation of the rights of pro- 
perty. Others again, who acknowledge that the monastic 
discipline cannot be reconciled with the modern system 
of religion, or with public utility, lament only that these 
ample endowments were not bestowed upon ecclesiastical 
corporations, freed from the monkish cowl, but still be- 
longing to that spiritual profession to whose use they 
were originally consecrated. And it was a very natural 
theme of complaint at the time, that such abundant 
revenues as might have sustained the dignity of the 
crown and supplied the means of public defence without 
burdening the subject, had served little other purpose 
than that of swelling the fortunes of rapacious courtiers, 
and had left the king as necessitous and craving as 
before. 

Notwithstanding these various censures, I must own 
myself of opinion, both that the abolition of monastic 
institutions inight have been conducted in a manner con- 
sonant to justice as well as policy, and that Hemy's 
profuse alienation of the abbey lands, however illaudable 
in its motive, has proved upon the whole more beneficial 
to England than any other disposition would have turned 
out. I cannot, until some broad principle is made more 
obvious than it ever has yet been, do such violence to 
all common notions on the subject, as to attach an equal 



Reformation. CHARACTER OF CORPORATE PROPERTY. 75 

inviolability" to private and corporate property. The 
law of hereditary succession, as ancient and universal as 
that of property itself, the law of testamentary disposi- 
tion, the complement of the former, so long established 
in most countries as to seem a natural right, have in- 
vested the individual possessor of the soil with such a 
fictitious immortality, such anticipated enjoyment, as it 
were, of futurity, that his perpetual ownership could not 
be limited to the term of his own, existence, without 
what he would justly feel as a real deprivation of pro- 
perty. Nor are the expectancies of children, or other 
probable heirs, less real possessions, which it is a hard- 
ship, if not an absolute injury, to defeat. Yet even this 
hei-editary claim is set aside by the laws of forfei- 
ture, which have almost everywhere prevailed. But in 
estates held, as we call it, in mortmain, there is no in- 
tercommunity, no natural privity of interest, between 
the present possessor and those who may succeed him ; 
and as the former cannot have any pretext for com- 
plaint, if, his own rights being preserved, the legisla- 
ture should alter the course of transmission after his 
decease, so neither is any hardship sustained by others, 
unless their succession has been already designated or 
rendered probable. Corporate property therefore ap- 
pears to stand on a very different footing from that of 
private individuals ; and while all infringements of the 
established privileges of the latter are to be sedulously 
avoided, and held justifiable only by the strongest 
motives of public expediency, we cannot but admit the 
full right of the legislature to new-mould and regulate 
the former, in all that does not involve existing in- 
terests, upon far slighter reasons of convenience. If 
Henry had been content with prohibiting the profes- 
sion of religious persons for the future, and had gra- 
dually diverted their revenues instead of violently 
confiscating them, no Protestant could have found it 
easy to censure his policy. 

It is indeed impossible to feel too much indignation 
at the spirit in which these proceedings were conducted. 
Besides the hardship sustained by so many persons 
turned loose upon society, for whose occupations they 
were unfit, the indiscriminate destruction of convents 
produced several public mischiefs. The visitors them- 



76 YEARLY VALUE OF THE MONASTERIES. Chap. II. 

selves strongly interceded for the nunnery of Godstow, 
as irreproachably managed, and an excellent place of 
education ; and no doubt some other foundations should 
have been preserved for the same reason. Latimer, who 
could not have a prejudice on that side, begged earnestly 
that the priory of Malvern might be spared for the main- 
tenance of preaching and hospitality. It was urged for 
Hexham abbey that, there not being a house for many 
miles in that part of England, the country would be in 
danger of going to waste. And the total want of inns 
in many parts of the kingdom must have rendered the 
loss of these hospitable places of reception a serious 
grievance. These, and probably other reasons, ought 
to have checked the destroying spirit of reform in its 
career, and suggested to Henry's counsellors, that a few 
years would not be ill consumed in contriving new 
methods of attaining the beneficial effects which mo- 
nastic institutions had not failed to produce, and in 
preparing the people's minds for so important an inno- 
vation. 

The suppression of monasteries poured in an instant 
such a torrent of wealth upon the crown as has seldom 
been equalled in any country by the confiscations fol- 
lowing a subdued rebellion. The clear yearly value 
was rated at 131,607/. ; but was in reality, if we believe 
Burnet, ten times as great ; the courtiers undervaluing 
those estates in order to obtain grants or sales of them 
more easily. It is certain, however, that Burnet's sup- 
position errs extravagantly on the other side. d The 
moveables of the smaller monasteries alone were rec- 
koned at 100,000/. ; and as the rents of these were 
less than a fourth of the whole, we may calculate the 
aggregate value of moveable wealth in the same pro- 

c Burnet, i. ; Append. 96. sessed above one-fifth of the kingdom ; 

d P. 268. Dr. Lingard, on the authority and in value, by reason of their long 

of Nasmith's edition of Tanner's Notitia leases, not one-tenth. But, on this sup- 

Monastica, puts the annual revenue of position, the crown's gain was enormous, 

all the monastic houses at 142.914J. This According to a valuation in Speed's 

would only be one-twentieth part of the Catalogue of Religious Houses, apud 

rental of the kingdom, if Hume were Collier, Append, p. 34, sixteen mitred 

right in estimating that at three millions, abbots had revenues above 1000?. per 

But this is certainly by much too high, annum. St. Peter's, Westminster, was 

The author of Harmer's Observations on the richest, and valued at 39771., Glas- 

Burnet, as I have mentioned above, says tonbury at 3508J., St. Alban's at 25102., 

the monks will be found not to have pos- &c 



Reformation. IMPROPRIATIONS. 77 

portion. All this was enough to dazzle a more prudent 
mind than that of Henry, and to inspire those sanguine 
dreams of inexhaustible affluence with which private 
men are so often filled by sudden prosperity. 

The monastic rule of life being thus abrogated, as 
neither conformable to pure religion nor to policy, it is 
to be considered to what uses these immense endow- 
ments ought to have been applied. There are some, 
perhaps, who may be of opinion that the original 
founders of monasteries, or those who had afterwards 
bestowed lands on them, having annexed to their grants 
an implied condition of the continuance of certain devo- 
tional services, and especially of prayers for the repose 
of their souls, it were but equitable that, if the legisla- 
ture rendered the performance of this condition impos- 
sible, their heirs should re-enter upon the lands that 
would not have been alienated from them on any other 
account. But, without adverting to the difficulty in 
many cases of ascertaining the lawful heir, it might be 
answered that the donors had absolutely divested them- 
selves of all interest in their grants, and that it was more 
consonant to the analogy of law to treat these estates as 
escheats or vacant possessions, devolving to the sove- 
reign, than to imagine a right of reversion that no party 
had ever contemplated. There was indeed a class of 
persons very different from the founders of monasteries, 
to whom restitution was due. A large proportion of 
conventual revenues arose out of parochial tithes, di- 
verted from the legitimate object of maintaining the 
incumbent to swell the pomp of some remote abbot. 
These impropriations were in no one instance, I believe, 
restored to the parochial clergy, and have passed either 
into the hands of laymen, or of bishops and other eccle- 
siastical persons, who were frequentl}'' compelled by the 
Tudor princes to take them in exchange for lands. 6 It 
was not in the spirit of Henry's policy, or in that of the 
times, to preserve much of these revenues to the church, 

e An act entitling the queen to take (1 Eliz. c. 19). This bill passed on a 

into her hands, on the avoidance of any division in the commons by 104 to 

bishopric, so much of the lands belong- 90, and was ill taken by some of the 

ing to it as should be equal in value to bishops, who saw themselves reduced 

the impropriate rectories, &c. within the to live on the lawful subsistence of 

same, belonging to the crown, and to the parochial clergy. Strype's Annals, 

give the latter in exchange, was made i. 68. 97. 



78 MOTIVES FOR PARTITION OF CHURCH LANDS. Chap. II. 

though he had designed to allot 18,000/. a year for 
eighteen new sees, of which he only erected six with 
far inferior endowments. Nor was he much better in- 
clined to husband them for public exigencies, although 
more than sufficient to make the crown independent of 
parliamentary aid. It may perhaps be reckoned a pro- 
vidential circumstance, that his thoughtless humour 
should have rejected the obvious means of establishing 
an uncontrollable despotism, by rendering unnecessary 
the only exertion of power which his subjects were 
likely to withstand. Henry VII. would probably have 
followed a very different course. Large sums, however, 
are said to have been expended in the repair of high- 
ways, and in fortifying ports in the channel/ But the 
greater part was dissipated in profuse grants to the 
courtiers, who frequently contrived to veil their acqui- 
sitions under cover of a purchase from the crown. It 
has been surmised that Cromwell, in his desire to pro- 
mote the Eeformation, advised the king to make this 
partition of abbey lands among the nobles and gentry, 
either by grant, or by sale on easy terms, that, being 
thus bound by the sure ties of private interest, they might 
always oppose any return towards the dominion of 
Eome. g In Mary's reign, accordingly, her parliament, 
so obsequious in all matters of religion, adhered with a 
firm grasp to the possession of church lands ; nor could 
the papal supremacy be re-established until a sanction 
was given to their enjoyment. And we may ascribe 
part of the zeal of the same class in bringing back and 
preserving the reformed church under Elizabeth to a 
similar motive ; not that these gentlemen were hypo- 
critical pretenders to a belief they did not entertain, but 
that, according to the general laws of human nature, 
they gave a readier reception to truths which made 
their estates more secure. 



f Burnet, 268, 339. In Strype, i. 211, marks. His highness may assign to the 

we have a paper drawn up by Cromwell yearly reparation of highways in sundry 

for the king's inspection, setting forth parts, or the doing of other good deeds 

what might be done with the revenues for the commonwealth, 6000 marks." In 

of the lesser monasteries. Among a few such scant proportion did the claims of 

other particulars are the following: — public utility come after those of selfish 

" His grace may furnish 200 gentlemen pomp, or rather perhaps, looking more 

to attend on his person, every one of attentively, of cunning corruption, 

them to have 100 marks yearly — 20,000 6 Burnet, i. 223. 



Reformatio*. ITS EFFECTS ON THE CONSTITUTION. 79 

But, if the participation of so many persons in the 
spoils of ecclesiastical property gave stability to the new- 
religion, by pledging them to its support, it was also of 
no slight advantage to our civil constitution, strengthen- 
ing, and as it were infusing new blood into, the terri- 
torial aristocracy, who were to withstand the enormous 
prerogative of the crown. For if it be true, as surely it 
is, that wealth is power, the distribution of so large a 
portion of the kingdom among the nobles and gentry, 
the elevation of so many new families, and the increased 
opulence of the more ancient, must have sensibly affected 
their weight in the balance. Those families indeed, 
within or without the bounds of the peerage, which 
are now deemed the most considerable, will be found, 
with no great number of exceptions, to have first 
become conspicuous under the Tudor line of kings ; and 
if we could trace the titles of their estates, to have 
acquired no small portion of them, mediately or imme- 
diately, from monastic or other ecclesiastical foundations. 
And better it has been that these revenues should thus 
from age to age have been expended in liberal hospi- 
tality, in discerning charity, in the promotion of in- 
dustry and cultivation, in the active duties or even 
generous amusements of life, than in maintaining a host 
of ignorant and inactive monks, in deceiving the popu- 
lace by superstitious pageantry, or in the encouragement 
of idleness and mendicity. 11 

ii It is a favourite theory with many times very far from them. It might be 

who regret the absolute secularisation of difficult indeed to prove that a Norman 

conventual estates, that they might have baron, who, not quite easy about his 

been rendered useful to learning and future prospects, took comfort in his last 

religion by being bestowed on chapters hours from the anticipation of daily 

and colleges. Thomas Whitaker has masses for his soul, would have been 

sketched a pretty scheme for the abbey better satisfied that his lands should 

of Whalley, wherein, besides certain maintain a grammar-school than that 

opulent prebendaries, he would provide they should escheat to the crown. But 

for schoolmasters and physicians. I sup- to wave this, and to revert to the prin- 

pose this is considered an adherence to ciple of public utility, it may possibly be 

the donor's intention, and no sort of vio- true that, in one instance, such as Whal- 

lation of property ; somewhat on the ley, a more beneficial disposition could 

principle called cy pris, adopted by the have been made in favour of a college 

court of chancery in cases of charitable than by granting away the lands. But 

bequests; according to which, that tri- the question is, whether alt, or even a 

bunal, if it holds the testator's intention great part, of the monastic estates could 

imfit to be executed, carries the bequest have been kept in mortmain with ad- 

into effect by doing what it presumes to vantage. We may easily argue that the 

come next in his wishes, though some- Derwentwater property, applied as it has 



80 MENDICITY PROMOTED BY MONASTERIES. Chap. II. 

A very ungrounded prejudice had long obtained cur- 
rency, and notwithstanding the contradiction it has 
experienced in our more accurate age, seems still not 
eradicated, that the alms of monasteries maintained the 
indigent throughout the kingdom, and that the system 
of parochial relief, now so much the topic of complaint, 
was rendered necessary by the dissolution of those bene- 
ficent foundations. There can be no doubt that many 
of the impotent poor derived support from their charity. 
But the blind eleemosynary spirit inculcated by the 
Eomish church is notoriously the cause, not the cure, of 
beggary and wretchedness. The monastic foundations, 
scattered in different counties, but by no means at regular 
distances, and often in sequestered places, could never 
answer the end of local and limited succour, meted out 
in just proportion to the demands of poverty. Their 
gates might indeed be open to those who knocked at 
them for alms, and came in search of streams that 
must always be too scanty for a thirsty multitude. 
Nothing could have a stronger tendency to promote 
that vagabond mendicity, which unceasing and very 
severe statutes were enacted to repress. It was and 
must always continue a hard problem, to discover the 
means of rescuing those whom labour cannot maintain 
from the last extremities of helpless suffering. The 
regular clergy were in all respects ill fitted for this 
great office of humanity. Even while the monasteries 
were yet standing, the scheme of a provision for the poor 
had been adopted by the legislature, by means of re- 
gular collections, which in the course of a long series of 
statutes, ending in the 43rd of Elizabeth, were almost 
insensibly converted into compulsory assessments.' It 



been, has done the state more service than i The first act for the relief of the 

if it had gone to maintain a race of Rat- impotent poor passed in 1535 (27 H. 8, 

clifTes, and been squandered at White's c. 25). By this statute no alms were 

or Newmarket. But does it follow that allowed to be given to beggars, on pain 

the kingdom would be the more pr8s- of forfeiting ten times the value ; but a 

perous if all the estates of the peerage collection was to be made in every parish, 

were diverted to similar endowments? The compulsory contributions, properly 

And can we seriously believe that, if speaking, began in 1572 (14 Kliz. c. 5). 

such a plan had been adopted at the sup- But by an earlier statute, 1 Edw. 6, c. 3, 

pression of monasteries, either religion or the bishop was empowered to proceed in 

learning would have been the better for his court against such as should refuse 

such an inundation of prebendaries and to contribute, or dissuade others from 

schoolmasters ? doing so. 



Reformation. POWER OF CLERGY BROKEN. 81 

is by no means probable that, however some in particular 
districts may have had to lament the cessation of hos- 
pitality in the convents, the poor in general, after some 
time, were placed in a worse condition by their dissolu- 
tion ; nor are we to forget that the class to whom the 
abbey lands have fallen have been distinguished at all 
times, and never more than in the first century after 
that transference of property, for their charity and 
munificence. 

These two great political measures — the separation 
from the Roman see, and the suppression of monasteries 
— so broke the vast power of the English clergy, and 
humbled their spirit, that they became the most abject 
of Henry's vassals, and dared not offer any steady oppo- 
sition to his caprice, even when it led him to make in- 
novations in the essential parts of their religion. It is 
certain that a large majority of that order would gladly 
have retained their allegiance to Rome, and that they 
viewed with horror the downfall of the monasteries. In 
rending away so much that had been incorporated with 
the public faith Henry seemed to prepare the road for 
the still more radical changes of the reformers. These, 
a numerous and increasing sect, exulted by turns in the 
innovations he promulgated, lamented their dilatoriness 
and imperfection, or trembled at the re-action of his 
bigotry against themselves. Trained in the school of 
theological controversy, and drawing from those bitter 
waters fresh aliment for his sanguinary and imperious 
temper, he displayed the impartiality of his intolerance 
by alternately persecuting the two conflicting parties. 
We all have read how three persons convicted of disput- 
ing his supremacy, and three deniers of transubstantia- 
tion, were drawn on the same hurdle to execution. But 
the doctrinal system adopted by Henry in the latter 
years of his reign, varying, indeed, in some measure 
from time to time, was about equally removed from 
popish and protestant orthodoxy. The corporal presence 
of Christ in the consecrated elements was a tenet which 
no one might dispute without incurring the penalty of 
death by fire ; and the king had a capricious partiality 
to the Romish practice in those very points where a 
great many real catholics on the Continent were ear- 
nest for its alteration, the communion of the laity by 

VOL. I. G 



82 PROGRESS OF REFORMED DOCTRINE Chap. II. 

bread alone, and the celibacy of the clergy. But in 
several other respects he was wrought upon by Cranmer 
to draw pretty near to the Lutheran creed, and to per- 
mit such explications to be given in the books set forth 
by his authority, the Institution, and the Erudition of a 
Christian Man, as, if they did not absolutely proscribe 
most of the ancient opinions, threw at best much doubt 
upon them, and gave intimations which the people, now 
become attentive to these questions, were acute enough 
to interpret. k 

It was natural to suspect, from the previous temper of 
Progress the nation, that the revolutionary spirit which 
of the blazed out in Germany would spread rapidly 
«Ze in over England. The enemies of ancient super- 
Engiand. s tition at home, by frequent communication 
with the Lutheran and Swiss reformers, acquired not 
only more enlivening confidence, but a surer and more 
definite system of belief. Books printed in Germany or 
in the Flemish provinces, where at first the administra- 
tion connived at the new religion, were imported and 
read with that eagerness and delight which always com- 
pensate the risk of forbidden studies.™ Wolsey, who had 
no turn towards persecution, contented himself with 
ordering heretical writings to be burned, and strictly 
prohibiting their importation. But to withstand the 
course of popular opinion is always like a combat against 
the elements in commotion ; nor is it likely that a go- 
vernment far more steady and unanimous than that of 
Henry VIII. could have effectually prevented the dif- 
fusion of protestantism. And the severe punishment of 
many zealous reformers in the subsequent part of this 
reign tended, beyond a doubt, to excite a favourable pre- 
judice for men whose manifest sincerity, piety, and con- 
ic The Institution was printed in 1537; m Strype, i. 165. A statute enacted 
the Erudition, according to Burnet, in in 1531 (25 H. 8, c 15), after reciting 
1540; but in Collier and Strype's opinion, that "at this day there be within this 
not till 1543. They are both artfully realm a great number cunning and expert 
drawn, probably in the main by Cran. in printing, and as able to execute the 
mer, but not without the interference said craft as any stranger," proceeds to 
of some less favourable to the new doc forbid the sale of bound books imported 
trine, and under the eye of the king him- from the Continent. A terrible blow 
self.- Collier, 137, 189. The doctrinal was thus levelled both against general 
variations in these two summaries of literature and the reformed religion; but, 
royal faith are by no means inconsider- like many other bad laws, produced very 
able. little effect. 



Reformation. IN ENGLAND. 83 

stancy in suffering, were as good pledges for the truth of 
their doctrine, as the people had been always taught to 
esteem the same qualities in the legends of the early 
martyrs. Nor were Henry's persecutions conducted 
upcn the only rational principle, that of the inquisition, 
which judges from the analogy of medicine, that a deadly 
poison cannot be extirpated but by the speedy and radical 
excision of the diseased part; but falling only upon a few 
of a more eager and officious zeal, left a well-grounded opi- 
nion among the rest, that by some degree of temporising 
prudence they might escape molestation till a season of 
liberty should, arrive. 

One of the books originally included in the list of pro- 
scription among the writings of Luther and the foreign 
Protestants was a translation of the New Testament into 
English by Tyndale, printed at Antwerp in 1 526. A com- 
plete version of the Bible, partly by Tyndale, and partly 
byCoverdale, appeared, perhaps at Hamburgh, in 1535; 
a second edition, under the name of Matthews, following 
in 1537; and as Cranmer's influence over the king be- 
came greater, and his aversion to the Eoman church 
more inveterate, so material a change was made in the 
ecclesiastical policy of this reign as to direct the Scrip- 
tures in this translation (but with corrections in many 
places) to be set up in parish churches, and permit them 
to be publicly sold." This measure had a strong ten- 



n The accounts of early editions of the of the Bible in churches, or by yeomen, 
English Bible in Burnet, Collier, Strype, women, and other incapable persons, 
and an essay by Johnson in Watson's The popish bishops, well aware how 
Theological Tracts, vol. iii., are errone- much turned on this general liberty of 
ous or defective. A letter of Strype, in reading the Scriptures, did all in their 
Harleian MSS. 3782, which has been power to discredit the new version. Gar- 
printed, is better ; but the most complete diner made a list of about one hundred 
enumeration is in Cotton's list of edi- words which he thought unfit to be trans- 
tions, 1821. The dispersion of the Scrip- lated, and which, in case of an authorised 
tures, with full liberty to read them, was version (whereof the clergy in convoea- 
greatly due to Cromwell, as is shown by tion had reluctantly admitted the expe- 
Burnet . Even after his fall, a procla- diency), ought, in his opinion, to be left 
mation, dated May 6, 1542, referring to in Latin. Tyndale's translation may, 
the king's former injunctions for the I apprehend, be reckoned the basis of 
same purpose, directs a large Bible to that now in use, but has undergone 
be set up in every parish church. But, several corrections before the last It 
next year the duke of Norfolk and Gar- has been a matter of dispute whether it 
diner prevailing over Cranmer, Henry were made from the original languages 
retraced a part of his steps ; and the act or from the Vulgate. Hebrew and even 
34JL8, c. 1, forbids the sale of Tyn- Greek were very little known in England 
dale's " false translation," and the reading at that time. The 

g2 



84 CHANGE OF RELIGIOUS OPINIONS. Chap. II. 

dency to promote the Reformation, especially among 
those who were capable of reading ; not, surely, that 
the controverted doctrines of the Eomish church are so 
palpably erroneous as to bear no sort of examination, 
but because such a promulgation of the Scriptures at 
that particular time seemed both tacitly to admit the 
chief point of contest, that they were the exclusive 
standard of Christian faith, and to lead the people to 
interpret them with that sort of prejudice which a jury 
would feel in considering evidence that one party in a 
cause had attempted to suppress ; a danger which those 
who wish to restrain the course of free discussion with- 
out very sure means of success will in all ages do well 
to reflect upon. 

The great change of religious opinions was not so 
much effected by reasoning on points of theological con- 
troversy, upon which some are apt to fancy it turned, as 
on a persuasion that fraud and corruption pervaded the 
established church. The pretended miracles, which had 
so long held the understanding in captivity, were wisely 
exposed to ridicule and indignation by the government. 
Plays and interludes were represented in churches, of 
which the usual subject was the vices and corruptions of 
the monks and clergy. These were disapproved of by 
the graver sort, but no doubt served a useful purpose. 
The press sent forth its light hosts of libels ; and though 
the catholic party did not fail to try the same means of 
influence, they had both less liberty to write as they 
pleased, and fewer readers than their antagonists. p 

The edition of 1537, called Matthews's ° Burnet, 318; Strype's Life of Par- 
Bible, printed by Grafton, contains mar- ker, 18. Collier (187) is of course much 
ginal notes reflecting on the corruptions scandalised. In his view of things, it 
of popery. These it was thought expe- had been better to give up the Reforma- 
dient to suppress in that of 1539, com- tion entirely than to suffer one reflection 
monly called Cranmer's Bible as having on the clergy. These dramatic satires 
been revised by him, and in later editions, on that order had also an effect in pro- 
In all these editions of Henry's reign, moting the Reformation in Holland, 
though the version is properly Tyndale's, Brandt's History of Reformation in Low 
there are, as I am informed, considerable Countries, vol. i. p. 128. 
variations and amendments. Thus, in P [" In place of the ancient reverence 
Cranmer's Bible, the word ecclesia is which was entertained for the pope and 
always rendered congregation, instead of the Romish chair, there was not a mas- 
church ; either as the primary meaning, querade or other pastime in which some 
or, more probably, to point out that the one was not to be seen going abv-r.t in 
laity had a share in the government of a the dress of a pope or cardinal. Even 
Christian society. the women jested incessantly at the pope 



Reformation. KDWARD VI. 85 

In this feverish state of the public mind on the 
most interesting subject ensued the death of itsesta- 
Hemy VIII., who had excited and kept it up. j^e™ ent 
More than once, during the latter part of his Edward. 
capricious reign, the popish party, headed by Norfolk 
and Gardiner, had gained an ascendant, and several 
persons had been burned for denying transubstantiation. 
But at the moment of his decease Norfolk was a prisoner 
attainted of treason, Gardiner in disgrace, and the favour 
of Cranmer at its height. It is said that Henry had 
meditated some further changes in religion. Of his 
executors, the greater part, as their subsequent conduct 
evinces, were nearly' indifferent to the two systems, ex- 
cept so far as more might be gained by innovation. But 
Somerset, the new protector, appears to have inclined 
sincerely towards the Beformation, though not wholly 
uninfluenced by similar motives. His authority readily 
overcame all opposition in the council ; and it was soon 
perceived that Edward, whose singular precocity gave 
his opinions in childhood an importance not wholly 
ridiculous, had imbibed a steady and ardent attachment 
to the new religion, which probably, had he lived longer, 
would have led him both to diverge farther from what 
he thought an idolatrous superstition, and to have treated 
its adherents with severity. 1 Under his reign, accord- 
ingly, a series of alterations in the tenets and homilies 
of the English church were made, the principal of which 
I shall point out, without following a chronological 

and his servants, and thought they could 1774, are quite unlike the style of a boy. 

do no greater disgrace to any man than One could wish this journal not to be 

by calling him priest of the pope, or genuine; for the manner in which he 

papist." Extract from an anonymous speaks of both his uncles' executions does 

French MS. by a person resident at the not show a good heart Unfortunately, 

English court, about 1540, in Raumer's however, there is a letter extant of the 

History of 16th and 17th centuries illus- king to Fitzpatrick, which must be 

trated, vol. ii. p. 66. 1845.] genuine, and is in the same strain. He 

1 I can hardly avoid doubting whether treated bis sister Mary harshly about 

Edward VI.'s Journal, published in the her religion, and had, I suspect, too much 

second volume of Burnet, be altogether Tudor blood in his veins. It is certain 

his own ; because it is strange for a boy that he was a very extraordinary boy, or, 

of ten years old to write with the precise as Cardan calls him, monstrifkus puel- 

brevity of a man of business. Yet it is lus ; and the reluctance with which he 

hard to say how T far an intercourse with yielded, on the solicitations of Cranmer, 

able men on serious subjects may force to sign the warrant for burning Joan 

■a royal plant of such natural vigour; and Boucher, is as much to his honour as 

his letters to his young friend Barnaby it is against the archbishop's. [But see 

Fitzpatrick, published by II. Walpole in p. 96.] 



8G POINTS OF DIFFERENCE Chap. II. 

order, or adverting to such matters of controversy as did 
not produce a sensible effect on the people. 

I. It was obviously among the first steps required in 

order to introduce a mode of religion at once 
the chief more reasonable and more earnest than the 
points of former, that the public services of the church 
between should be expressed in the mother tongue of 
religions *k- e congregation. The Latin ritual had been 
unchanged ever since the age when it was ver- 
nacular ; partly through a sluggish dislike of innovation, 
but partly also because the mysteriousness of an unknown 
dialect served to impose on the vulgar, and to throw an 
air of wisdom around the priesthood. Yet what was 
thus concealed would have borne the light. Our own 
liturgy, so justly celebrated for its piety, elevation, and 
simplicity, is in great measure a translation from the 
catholic services, or more properly from those which had 
been handed down from a more primitive age ; those 
portions, of course, being omitted which had relation to 
different principles of worship. In the second year of 
Edward's reign, the reformation of the public service 
was accomplished, and an English liturgy compiled, not 
essentially different from that in present use/ 

II. No part of exterior religion was more prominent.. 
or more offensive to those who had imbibed a protestant 
spirit than the worship, or at least veneration, of images, 
which in remote and barbarous ages had given excessive 
scandal both in the Greek and Latin churches, though 
long fully established in the practice of each. The 
populace in towns where the reformed tenets prevailed 
began to pull them down in the very first days of 
Edward's reign ; and after a little pretence at distin- 
guishing those which had not been abused, orders were 
given that all images should be taken away from churches. 
It was, perhaps, necessary thus to hinder the zealous 
protestants from abating them as nuisances, which had 
already caused several disturbances. 9 But this order was 

r The litany had been translated into book. Strype's Annals, ii. 39 ; Holling- 

Knglish in 1542. Burnet, i. 331 ; Collier, shed, iii. 921. (4to. edition.) 
Ill ; where it may be read, not much * "Itwas observed," saysStrype, ii.T9, 

differing from that now in use. It was " that where images were left there was 

always held out by our church, when the most contest, and most peace where they 

object was conciliation, that the liturgy were all sheer pulled down, as they were 

was essentially the same with the mass- in some places." 



Reformatio*. BETWEEN THE TWO RELIGIONS. 87 

executed with a rigour which lovers of art and antiquity 
have long deplored. Our churches bear witness to the 
devastation committed in the wantonness of triumphant 
reform by defacing statues and crosses on the exterior of 
buildings intended for worship, or windows and monu- 
ments within. Missals and other books dedicated to 
superstition perished in the same manner. Altars were 
taken down, and a great variety of ceremonies abrogated,, 
such as the use of incense, tapers, and holy water ; and 
though more of these were retained than eager inno- 
vators could approve, the whole surface of religious 
ordinances, all that is palpable to common minds, under- 
went a surprising transformation. 

III. But this change in ceremonial observances and 
outward show was trifling when compared to that in the 
objects of worship, and in the purposes for which the)' 
were addressed. Those who have visited some catholic 
temples, and attended to the current language of devo- 
tion, must have perceived, what the writings of apolo- 
gists or decrees of councils will never enable them to 
discover, that the saints, but more especially the Virgin, 
are almost exclusively the popular deities of that religion. 
All this polytheism was swept away by the reformers : 
and in this may be deemed to consist the most specific 
difference of the two systems. Nor did they spare the 
belief in purgatory, that unknown land which the hier- 
archy swayed with so absolute a rule, and to which the 
earth had been rendered a tributary province. / Yet in 
the first liturgy put forth under Edward the prayers for 
departed souls were retained ; whether out of respect to 
the prejudices of the people or to the immemorial anti- 
quity of the practice. But such prayers, if not neces- 
sarily implying the doctrine of purgatory (which yet in 
the main they appear to do), are at least so closely con- 
nected with it that the belief could never be eradicated 
while they remained. Hence, in the revision of the 
liturgy, four years afterwards, they were laid aside ; ' and 

« Collier, p. 257, enters into a vindi- which the reformers set up exclusively 
cation of the practice, which appears to of all tradition, it contradicted the doc- 
have prevailed in the church from the trine of justification by mere faith, 
second century. It was defended in in the strict sense which they affixed 
general by the nonjurors and the whole to that tenet See preamble of the 
school of Andrews. But, independently act for dissolution of chantries, 1 Edw. 
of its wanting the authority of Scripture, 6, c. 14. 



88 POINTS OF DIFFERENCE Chap. II. 

several other changes made, to eradicate the vestiges of 
the ancient superstition. 

IV. Auricular confession, as commonly called, or the 
private and special confession of sins to a priest for the 
purpose of obtaining his absolution, an imperative duty 
in the church of Eome, and preserved as such in the . 
statute of the six articles, and in the religious codes pub- 
lished by Henry VIII., was left to each man's discretion 
in the new order ; a judicious temperament, which the 
reformers would have done well to adopt in some other 
points. And thus, while it has never been condemned 
in our church, it went without dispute into complete 
neglect. Those who desire to augment the influence of 
the clergy regret, of course, its discontinuance ; and 
some may conceive that it would serve either for whole- 
some restraint or useful admonition. It is very difficult, 
or, perhaps, beyond the reach of any human being, to 
determine absolutely how far these benefits, which can- 
not be reasonably denied to result in some instances 
from the rite of confession, outweigh the mischiefs con- 
nected with it. There seems to be something in the 
Eoman catholic discipline (and I know nothing else so 
likely) which keeps the balance, as it were, of moral 
influence pretty even between £he two religions, and 
compensates for the ignorance and superstition which 
the elder preserves ; for I am not sure that the pro- 
testant system in the present age has any very sensible 
advantage in this respect ; or that in countries where 
the comparison can fairly be made, as in Germany or 
Switzerland, there is more honesty in one sex, or more 
chastity in the other, when they belong to the reformed 
churches. Yet, on the other hand, the practice of con- 
fession is at the best of very doubtful utility, when con- 
sidered in its full extent and general bearings. The 
ordinary confessor, listening mechanically to hundreds 
of penitents, can hardly preserve much authority over 
most of them. But in proportion as his attention is 
directed to the secrets of conscience, his influence may 
become dangerous ; men grow accustomed to the control 
of one perhaps more feeble and guilty than themselves, 
but over whose frailties they exercise no reciprocal 
command ; and, if the confessors of kings have been 
sometimes terrible to nations, their ascendancy is pro- 



Reformation BETWEEN THE TWO RELIGIONS. 89 

bably not less mischievous, in proportion to its extent, 
within the sphere of domestic life. In a political light, 
and with the object of lessening the weight of the eccle- 
siastical order in temporal affairs, there cannot be the 
least hesitation as to the expediency of discontinuing 
the usage." _ 

V. It has very rarely been the custom of theologians 
to measure the importance of orthodox opinions by their 
effect on the lives and hearts of those who adopt them ; 
nor was this predilection for speculative above practical 
doctrines ever more evident than in the leading contro- 
versy of the sixteenth century, that respecting the Lord's 
Supper. No errors on this point could have had any 
influence on men's moral conduct, nor indeed much on 
the general nature of their faith ; yet it was selected as 
the test of heresy ; and most, if not all, of those who 
suffered death upon that charge, whether in England or 
on the Continent, were convicted of denying the corporal 
presence, in the sense of the Roman church. It had 
been well if the reformers had learned, by abhorring her 
persecution, not to practise it in a somewhat less degree 
upon each other ; or, by exposing the absurdities of tran- 
substantiation, not to contend for equal nonsense of their 
own. Four principal theories, to say nothing of sub-, 
ordinate varieties, divided Europe at the accession of 
Edward VI. about the sacrament of the Eucharist. The 
church of Rome would not depart a single letter from 
transubstantiation, or the change at the moment of con- 
secration of the substances of bread and wine into those 
of Christ's body and blood ; the accidents, in school lan- 
guage, or sensible qualities of the former remaining, or 
becoming inherent in the new substance. This doctrine 
does not, as vulgarly supposed, contradict the evidence 
of our senses ; since our senses can report nothing as to 
the unknown being, which the schoolmen denominated 
substance, and which alone was the subject of this con- 
version. But metaphysicians of later ages might inquire 
whether material substances, abstractedly considered, 
exist at all, or, if they exist, whether they can have any 
specific distinction except their sensible qualities. This, 

u Collier, p. 248, descants, in the true well known, is one of the points on which 
spirit of a high churchman, on the im- his party disagreed with the generality of 
portance of confession. This also, as is Protestants. 



90 POINTS OF DIFFERENCE Chap. II. 

perhaps, did not suggest itself in the sixteenth century ; 
but it was strongly objected that the simultaneous exist- 
ence of a body in many places, which the Eomish doc- 
trine implied, was inconceivable, and even contradictory. 
Luther, partly, as it seems, out of his determination to 
multiply differences with the church, invented a theory 
somewhat different, usually called consubstantiation, 
which was adopted in the confession of Augsburg, and to 
which, at least down to the middle of the eighteenth 
century, the divines of that communion were much 
attached. They imagined the two substances to be 
united in the sacramental elements, so that they might 
be termed bread and wine, or the body and blood, with 
equal propriety." But it must be obvious that there is 
little more than a metaphysical distinction between this 
doctrine and that of Eome ; though, when it suited the 
Lutherans to magnify rather than dissemble their devia- 
tions from the mother church, it was raised into an 
important difference. A simpler and more rational ex- 
plication occurred to Zwingle and QEcolampadius, from 
whom the Helvetian protestants imbibed their faith. 
Rejecting every notion of a real presence, and divesting 
the institution of all its mystery, they saw only figura- 
tive symbols in the elements which Christ had appointed 
as a commemoration of his death. But this novel opinion 
excited as much indignation in Luther as in the Ro- 
manists. It was indeed a rock on which the Reformation 
was nearly shipwrecked ; since the violent contests which 
it occasioned, and the narrow intolerance which one side 
at least displayed throughout the controversy, not only 
weakened on several occasions the temporal power of 
the protestant churches, but disgusted many of those 
who might have inclined towards espousing their senti- 
ments. Besides these three hypotheses, a fourth was 
promulgated by Martin Bucer of Strasburg, a man of 
much acuteness, but prone to metaphysical subtilty, and 
not, it is said, of a very ingenuous character/ Bucer, 

x Nostra sententia est, says Luther, contention, and for maintaining peace and 

apud Burnet, 111, Appendix, 194, corpus quietness in the church, somewhat more 

ita cum pahe, seu in pane esse, ut revera ambiguous words should be used, that 

cum pane manducetur, et quemcunque might have a respect to both persuasions 

motum vel actionem panis habet, eundem concerning the presence. But Martyr 

et corpus Christi. was of another judgment, and affected to 

T "Bucer thought, that for avoiding speak of the sacrament with all plainness 



Reformation. BETWEEN THE TWO RELIGIONS. 91 

as I apprehend, though his expressions are unusually 
confused, did not acknowledge a local presence of 
Christ's body and blood in the elements after consecra- 
tion — so far concurring with the Helvetians ; while he 
contended that they were really, and without figure, 
received by the worthy communicant through faith, so 
as to preserve the belief of a mysterious union, and of 
what was sometimes called a real presence. Bucer him- 
self came to England early in the reign of Edward, and 
had a considerable share in advising the measures of 
reformation. But Peter Martyr, a disciple of the Swiss 
school, had also no small influence. In the forty -two 
articles set forth by authority, the real or corporal pre- 
sence, using these words as synonymous, is explicitly 
denied. This clause was omitted on the revision of the 
articles under Elizabeth. 2 

VI. These various innovations were exceedingly 
inimical to the influence and interests of the priesthood. 
But that order obtained a sort of compensation in being 
released from its obligation to celibacy. This obligation, 
though unwarranted by Scripture, rested on a most 
ancient and universal rule of discipline ; for though the 
Greek and Eastern churches have always permitted the 
ordination of married persons, yet they do not allow 
those already ordained to take wives. No very good 
reason, however, could be given for this distinction ; and 
the constrained celibacy of the Latin clergy had given 
rise to mischiefs, of which their general practice of 
retaining concubines might be reckoned among the 
smallest." The German protestants soon rejected this 
burthen, and encouraged regular as well as secular 
priests to marry. Cranmer had himself taken a wife in 
Germany, whom Henry's law of the six articles, one of 
which made the marriage of priests felony, compelled 

and perspicuity." Strype, ii. 121. The the elements. 

truth is, that there were but two opinions ° It appears to have been common for 
at bottom as to this main point of the the clergy, by licence from their bishops, 
controversy ; nor in the nature of things to retain concubines, who were, Collier 
was it possible that there should be more ; says, for the most part their wives, 
for what can be predicated concerning a p.. 262. But I do not clearly understand 
body, in its relation to a given space, but in what the distinction could have con- 
presence and absence ? sisted ; for it seems unlikely that mar- 
* Burnet, ii. 105, App. 216; Strype, riages of priests were ever solemnised at 
ii. 121, 208; Collier, &c. The C'alvinists so late a period; or if they were, they 
certainly did not own a local presence in were invalid. 



92 OPPOSITION TO THE REFORMATION. Chap. II. 

him to send away. In the reign of Edward this was 
justly reckoned an indispensable part of the new Re- 
formation. But the hill for that purpose passed tho 
lords with some little difficulty, nine bishops and four 
peers dissenting ; and its preamble cast such an imputa- 
tion on the practice it allowed, treating the marriage of 
priests as ignominious and a tolerated evil, that another 
act was thought necessary a few years afterwards, when 
the Reformation was better established, to vindicate this 
right of the protestant church. b A great number of the 
clergy availed themselves of their liberty ; which may 
probably have had as extensive an effect in conciliating 
the ecclesiastical profession, as the suppression of mo- 
nasteries had in rendering the gentry favourable to the 
new order of religion. 

But great as was the number of those whom conviction 
or self-interest enlisted under the protestant 
rnadeby " banner, it appears plain that the Reformation 
part of moved on with too precipitate a step for the 
' majority. The new doctrines prevailed in 
London, in many large towns, and in the eastern counties. 
But in the north and west of England the body of the 
people were strictly catholics. The clergy, though not 
very scrupulous about conforming to the innovations, 
were generally averse to most of them. And, in spite 
of the church lands, I imagine that most of the nobility, 
if not the gentry, inclined to the same persuasion ; not 
a few peers having sometimes dissented from the bills 
passed on the subject of religion in this reign, while no 
sort of disagreement appears in the upper house during 
that of Mary. In the western insurrection of 1549, 
which partly originated in the alleged grievance of in- 
closures, many of the demands made by the rebels go to 
the entire re-establishment of popery. Those of the 
Norfolk insurgents, in the same year, whose political 
complaints were the same, do not, as far as I perceive, 
show any such tendency. But an historian, whose bias 
was certainly not unfavourable to protestantism, con- 
fesses that all endeavours were too weak to overcome 

b Stat 2 & 3 Edw. 6, c. 21 ; 5 & 6 conformists,—" Out with them all ! I 

Edw. 6, c 12 ; Burnet, 89.' require it in God's behalf: make them 

c 2 Strype, 53. Latimer pressed the quondams, all the pack of them." Id. 204; 

necessity of expelling these temporising 2 Burnet, 143. 



Reformation. OPPOSITION TO THE REFORMATION. 93 

the aversion of the people towards Reformation, and 
even intimates that German troops were sent for from 
Calais on account of the bigotry with which the bulk of 
the nation adhered to the old superstition. 11 This is 
somewhat an humiliating admission, that the protestant 
faith was imposed upon our ancestors by a foreign army. 
And as the reformers, though still the fewer, were un- 
deniably a great and increasing party, it may be natural 
to inquire whether a regard to policy as well as equitable 
considerations should not have repressed still more, as it 
did in some measure, the zeal of Cranmer and Somerset ? 
It might be asked whether, in the acknowledged co- 
existence of two religions, some preference were not 
fairly claimed for the creed which all had once held, 
and which the greater part yet retained ; whether it were 
becoming that the councillors of an infant king should 
use such violence in breaking up the ecclesiastical con- 
stitution ; whether it were to be expected that a free- 
spirited people should see their consciences thus trans- 
ferred by proclamation, and all that they had learned to 
venerate not only torn away from them, but exposed 
to what they must reckon blasphemous contumely and 
profanation ? The demolition of shrines and images, far 
unlike the speculative disputes of theologians, was an 
overt insult on every catholic heart. Still more were 
they exasperated at the ribaldry which vulgar protestants 
uttered against their most sacred mystery. It was found 
necessary in the very first act of the first protestant par- 
liament to denounce penalties against such as spoke 
irreverently of the sacrament, an indecency not unusual 
with those who held the Zwiuglian opinion in that age 
of coarse pleasantry and unmixed invective. 8 Nor could 
the people repose much confidence in the judgment and 
sincerity of their governors, whom they had seen sub- 

d Burnet, iii. 190, 196. "The use of rather to refer to the upper classes than 

the old religion," says Paget, in remon- to the whole people. But at any rate it 

strating with Somerset on his rough treat- was an exaggeration of the fact, the pro- 

ment of some of the gentry and partiality testants being certainly in a much greater 

to the commons, " is forbidden by a law, proportion. Paget was the adviser of the 

and the use of the new is not yet printed scheme of sending for German troops in 

in the stomachs of eleven out of twelve 1549, which, however, was in order to 

parts of the realm, whatever countenance quell a seditious spirit in the nation, not 

men make outwardly to please them in by any means wholly founded upon re- 

whom they see the power resteth." ligious grounds. Strype, xi. 169. 
Strype.ii.; Appendix, H. H. This seems c 2 Edw. 6, c. 1 ; Strype, xi. 81. 



94 RAPACITY OF THE COURTIERS. Chap. II. 

mitting without outward repugnance to Henry's various 
schemes of religion, and whom they saw every day 
enriching themselves with the plunder of the church 
they affected to reform. There was a sort of endowed 
colleges or fraternities, called chantries, consisting of 
secular priests, whose duty was to say daily masses for 
the founders. These were abolished and given to the 
king by acts of parliament in the last year of Henry and 
the first of Edward. It was intimated in the preamble 
of the latter statute that their revenues should be con- 
verted to the erection of schools, the augmentation of the 
universities, and the sustenance of the indigent/ But 
this was entirely neglected, and the estates fell into the 
hands of the courtiers. Nor did they content themselves 
with this escheated wealth of the church. Almost every 
bishopric was spoiled by their ravenous power in this 
reign, either through mere alienations, or long leases, 
or unequal exchanges. Exeter and Llandaff, from being 
among the richest sees, fell into the class of the poorest. 
Lichfield lost the chief part of its lands to raise an estate 
for lord Paget. London, Winchester, and even Canter- 
bury, suffered considerably. The duke of Somerset was 
much beloved ; yet he had given no unjust offence by 
pulling down some churches in order to erect Somerset 
House with the materials. He had even projected 
the demolition of Westminster Abbey, but the chapter 
averted this outrageous piece of rapacity, sufficient of 
itself to characterise that age, by the usual method, a 
grant of some of their estates. 8 



t 37 H. 8,c. 2; 1 Edw. 6,c. 14; Strype, land. Strype, 88. These counsels, and 

ii. 63; Burnet, &c, Cranmer, as well as the acts which they prompted, disgust us, 

the Catholic hishops, protested against from the spirit of rapacity they breathe, 

this act, well knowing how little regard Yet it might be urged, with some force, 

would be paid to its intention. In the that the enormous wealth of the superior 

latter part of the young king's reign, as ecclesiastics had been the main cause of 

he became more capable of exerting his those corruptions which it was sought to 

own power, he endowed, as is well known, cast away, and that most of the dignitaries 

several excellent foundations. were very averse to the new religion. 

8 Strype, Burnet, Collier, passim; Har- Even Cranmer had written some years 

mer's Specimens, 100. Sir Philip Hobby, before to Cromwell, deprecating the esta- 

our minister in Germany, writes to the blishment of any prebends out of the 

protector, in 1548, that the foreign pro- conventual estates, and speaking of the 

te^tants thought our bishops too rich, and collegiate clergy as an idle, ignorant, and 

advises him to reduce them to a compe- gormandising race, who might, without 

tent living; he particularly recommends any harm, be extinguished along with the 

his taking away all the prebends in Eng- regulars. Burnet, iii. 141. But the gross 



Reformation. PERSECUTION. 95 

Tolerance in religion, it is well known, so unani- 
mously admitted (at least verbally) even by theologians 
in the present century, was seldom considered as prac- 
ticable, much less as a matter of right, during the period 
of the Reformation. The difference in this respect 
between the catholics and protestants was only in 
degree, and in degree there was much less difference 
than we are apt to believe. Persecution is the deadly 
original sin of the reformed churches ; that which cools 
every honest man's zeal for their cause in proportion as 
his reading becomes more extensive. The Lutheran 
princes and cities in Germany constantly refused to 
tolerate the use of the mass as an idolatrous service ; h 
and this name of idolatry, though adopted in retaliation 
for that of heresy, answered the same end as the other, 
of exciting animosity and uncharitableness. The Roman 
worship was equally proscribed in England. Many per- 
sons were sent to prison for hearing mass, and similar 
offences.' The princess Mary supplicated in vain to 
have the exercise of her own religion at home, and 
Charles V. several times interceded in her behalf; but 
though Cranmer and Ridley, as well as the council, 
would have consented to this indulgence, the young 
king, whose education had unhappily infused a good 
deal of bigotry into his mind, could not be prevailed 
upon to connive at such idolatry. 4 Yet in one memor- 
able instance he had shown a milder spirit, struggling 

selfishness of the great men in Edward's in their churches. Schmidt, Hist, des 

reign justly made him anxious to save Allemands, vi. 394, vii. 24. 

what he could for the church, that seemed ' Stat. 2 & 3 Edw. 6, c. 1 ; Strype's 

on the brink of absolute ruin. Collier Cranmer, p. 233. 

mentions a characteristic circumstance. t Burnet, 192. Somerset had always 

So great a quantity of church plate had allowed her to exercise Her religion, 

been stolen, that a commission was though censured for this by Warwick, 

appointed to inquire into the facts, and who died himself a papist, but had pre- 

compel its restitution. Instead of this, tended to fall in with the young king's 

the commissioners found more left than prejudices. Her ill treatment was subsc- 

they thought sufficient, and seized the quent to the protector's overthrow. It is 

greater part to the king's use. to be observed that, in her father's life, 

h They declared In the famous pro- she had acknowledged his supremacy, 

testation of Spire, which gave them the and the justice of her mother's^ divorce, 

name of Protestants, that their preachers 1 Strype, 285 ; 2 Burnet, 241 ; Lingard, 

having confuted the mass by passages in vi. 326. It was, of course, by intimida- 

Scripture, they could not permit their tion ; but that excuse might be made for 

subjects to go thither; since it would others. Cranmer is said to have persuaded 

afford a bad example to suffer two sorts Henry not to put her to death, which we 

of service, directly opposite to each other, must in charity hope she did not know. 



96 EXECUTIONS FOR HERESY. Chap. II. 

against Cranmer to save a fanatical woman from the 
punishment of heresy.™ This is a stain upon Cranmer's 
memory which nothing hut his own death could have 
lightened. In men hardly escaped from a similar peril, 
in men who had nothing to plead but the right of private 
judgment, in men who had defied the prescriptive au- 
thority of past ages and of established power, the crime 
of persecution assumes a far deeper hue, and is capable 
of far less extenuation, than in a Eoman inquisitor. 
Thus the death of Servetus has weighed down the name 
and memory of Calvin. And though Cranmer was in- 
capable of the rancorous malignity of the Genevan law- 
giver, yet I regret to say that there is a peculiar cir- 
cumstance of aggravation in his pursuing to death this 
woman, Joan Boucher, and a Dutchman that had been 
convicted of Arianism. It is said that he had been 
accessory in the preceding reign to the condemnation of 
Lambert, and perhaps some others, for opinions con- 
cerning the Lord's Supper which he had himself after- 
wards embraced. 11 Such an evidence of the fallibility of 
human judgment, such an example that persecutions for 
heresy, how conscientiously soever managed, are liable 
to end in shedding the blood of those who maintain 
truth, should have taught him, above all men, a scru- 
pulous repugnance to carry into efiect those sanguinary 
laws. Compared with these executions for heresy, the 
imprisonment and deprivation of Gardiner and Bonner 
appear but measures of ordinary severity towards poli- 
tical adversaries under the pretext of religion ; yet are 
they wholly unjustifiable, particularly in the former in- 
stance ; and if the subsequent retaliation of those bad 

m [It has been pointed out to me by may be better that the whole anecdote 

a correspondent, that Mr. Brute, in his should vanish from history. This, of 

edition of Roger Hutchinson's works course, mitigates the censure on Cranmer 

(Parker Society, 1842, preface, p. 8), has in the text to an indefinite degree. 1845.] 
given strong reasons for questioning this n When Joan Boucher was condemned, 

remonstrance of Edward with Cranmer, she said to her judges, " It was not long 

which rests originally on no authority ago since you burned Anne Askew for a 

but that of Fox. In some of its circum- piece of bread, and yet came yourselves 

stances the story told by Fox is certainly soon after to believe and profess the same 

disproved ; but it is not impossible that doctrine for which you burned her ; and 

the young king may have expressed his now you will needs burn me for a piece 

reluctance to have the sentence carried of flesh, and in the end you will come to 

into execution, though his signature of the believe this also, when you .have read 

warrant was not required. This, how- the Scriptures and understand them." 

ever, is mere conjecture ; and perhaps it Strype, ii. 214. 



Reformation. RIDLEY— CRANMER— GARDINER. 



97 



men was beyond all proportion excessive, we should 
remember that such is the natural consequence of 
tyrannical aggressions. 

The person most conspicuous, though Ridley was 
perhaps the ' most learned divine, in moulding 
the faith and discipline of the English church, 
which has not been very materially altered since his 
time, was archbishop Cranmer. p Few men, about whose 
conduct there is so little room for controversy upon 



°" Gardiner hud some virtues, and enter- 
tained sounder notions of the civil consti- 
tution of England than his adversaries. 
In a letter to Sir John Godsalve, giving 
his reasons for refusing compliance with 
the injunctions issued by the council to 
the ecclesiastical visitors (which, Burnet 
says, does him more honour than anything 
else in his life), he dwells on the king's 
wanting power to command anything con- 
trary to common law, or to a statute, and 
brings authorities for this. Burnet, ii. 
Append. 112. See also Lingard, vi. 387, 
for another instance. Nor was this re- 
gard to the constitution displayed only 
when out of the sunshine; for in the 
next reign he was against despotic coun- 
sels, of which an instance has been given 
in the last chapter. His conduct, indeed, 
with respect to the Spanish connection 
Is equivocal. He was much against the 
marriage at first, and took credit to him- 
self for the securities exacted in the treaty 
with Philip, and established by statute. 
Burnet, ii. 267. But afterwards, if we 
may trust Noailles, he fell in with the 
Spanish party in the council, and even 
suggested to parliament that the queen 
should have the same power as her father 
to dispose of the succession by wilL Am- 
bassades de Noailles, iii. 153, &c. &c. Yet, 
according to Dr. Lingard, on the imperial 
ambassador's authority, he saved Eliza- 
beth's life against all the council. The 
article Gakdinkr, in the Biographia Bri- 
tannica, contains an elaborate and partial 
apology, at great length ; and the historian 
just quoted has of course said all he could 
in favour of one who laboured so strenu- 
ously for the extirpation of the northern 
heresy. But he was certainly not an 
honest man, and had been active in 
Henry's reign against his real opinions. 

Even if the ill treatment of Gardiner 
and Bonner by Edward's council could be 
VOL. I. 



excused (and the latter by his rudeness 
might deserve some punishment), what 
can be said for the imprisonment of the 
bishops Heath and Day, worthy and 
moderate men, who had gone a great way 
with the Reformation, but objected to the 
removal of altars, an innovation by no 
means necessary, and which should have 
been deferred till the people had grown 
ripe for further change? Mr. Southey 
says, " Gardiner and Bonner were de- 
prived of their sees, and imprisoned ; but 
no rigour was used towards them.." Book 
of the Church, ii. 111. Liberty and pro- 
perty being trifles ! 

P The doctrines of the English church 
were set forth in forty-two articles, drawn 
up, as is generally believed, by Cranmer 
and Ridley, with the advice of Bucer and 
Martyr, and perhaps of Cox. The three 
last of these, condemning some novel 
opinions, were not renewed under Eliza- 
beth, and a few other variations were 
made ; but upon the whole there is little 
difference, and none perhaps in those 
tenets which have been most the object 
of discussion. See the original Articles 
in Burnet, ii., App. N. 55. They were 
never confirmed by a convocation or a 
parliament, but imposed by the king's 
supremacy on all the clergy, and on the 
universities. His death, however, ensued 
before they could be actually subscribed. 
[The late editor of Cranmer's works thinks 
him mainly responsible for the forty-two 
articles: he probably took the advice of 
Ridley. A considerable portion of them, 
including those of chief importance, is 
taken, almost literally, either from the 
Augsburg Confession or a set of articles 
agreed upon by some German and English 
divines at a conference in 1538. Jenkins's 
Cranmer, preface, xxiii. 3, c. vii., also 
voL iv. 273, where these articles are 
printed at length. 1845.] 
U 



98 CRANMER. Chap. II. 

facts, have been represented in more opposite lights. 
We know the favouring colours of protestant writers ; 
but turn to the bitter invective of Bossuet, and the 
patriarch of our reformed church stands forth as the 
most abandoned of time-serving hypocrites. No political 
factions affect the impartiality of men's judgment so 
grossly or so permanently as religious heats. Doubtless, 
if we should reverse the picture, and imagine the end 
and scope of Cranmer's labour to have been the estab- 
lishment of the Roman catholic religion in a protestant 
country, the estimate formed of his behaviour would be 
somewhat less favourable than it is at present. If, casting 
away all prejudice on either side, we weigh the character 
of this prelate in an equal balance, he will appear far 
indeed removed from the turpitude imputed to him by 
his enemies, yet not entitled to any extraordinary venera- 
tion. Though it is most eminently true of Cranmer, 
that his faults were always the effect of circumstances, 
and not of intention, yet this palliating consideration 
is rather weakened when we recollect that he con- 
sented to place himself in a station where those cir- 
cumstances occurred. At the time of Cranmer's ele- 
vation to the see of Canterbury, Henry, though on the 
point of separating for ever from Eome, had not abso- 
lutely determined upon so strong a measure ; and his 
policy required that the new archbishop should, solicit 
the usual bulls from the pope, and take the oath of 
canonical obedience to him. Cranmer, already a rebel 
from that dominion in his heart, had recourse to the dis- 
ingenuous shift of a protest, before his consecration, 
that "he did not intend to restrain himself thereby 
from any thing to which he was bound by his duty to 
God or the king, or from taking part in any reformation 
of the English church which he might judge to be re- 
quired." q This first deviation from integrity, as is 

1 Strype's Cranmer, Appendix, p. 9. — or privately. Nothing can possibly turn 

lam sorry to find a respectable writer upon this. It was, on either supposition, 

inclining to vindicate Cranmer in this pro- unknown to the promisee, the pope at 

testation, which Burnet admits to agree Rome. The question is, whether, having 

better with the maxims of the casuists obtained the bulls from Rome on an ex- 

than with the prelate's sincerity : Todd's press stipulation that he should take a 

Introduction to Cranmer's Defence of the certain oath, he had a right to offer a 

True Doctrine of the Sacrament (1825), limitation, not explanatory, but utterly 

p 40. It is of no importance to inquire inconsistent with it ? We are sure that 

whether the protest were made publicly Cranmer's views and intentions, which he 



Reformation*. CRANMER. 99 

almost always the case, drew after it many others, and 
began that discreditable course of temporising and undue 
compliance to which he was reduced for the rest of 
Henry's reign. Cranmer's abilities were not perhaps of 
a high order, or at least they were unsuited to public 
affairs ; but his principal defect was in that firmness by 
which men of more ordinary talents may insure respect. 
Nothing could be weaker than his conduct in the usurpa- 
tion of lady Jane, which he might better have boldly 
sustained, like Ridley, as a step necessary for the con- 
servation of protestantism, than given into against his 
conscience, overpowered by the importunities of a mis- 
guided boy. Had the malignity of his enemies been 
directed rather against his reputation than his life, had 
he been permitted to survive his shame as a prisoner in 
the Tower, it must have seemed a more arduous task to 
defend the memoiy of Cranmer, but his fame has bright- 
ened in the fire that consumed him/ 

Those who, with the habits of thinking that prevail 
in our times, cast back their eyes on the reign Hismodera- 
of Edward VI., will generally be disposed to tJSduci^" 
censure the precipitancy, and still more the changes not 
exclusive spirit, of our principal reformers, J^Se** 16 
But relatively to the course that things had zealots. 
taken in Germany, and to the feverish zeal of that age, 
the moderation of Cranmer and Ridley, the only ecclesi- 
astics who took a prominent share in these measures, 
was very conspicuous, and tended above everything to 
place the Anglican church in that middle position which 
it has always preserved between the Roman hierarchy 
and that of other protestant denominations. It is mani- 
fest, from the history of the Reformation in Germany, 
that its predisposing cause was the covetous and arrogant 
character of the superior ecclesiastics, founded upon vast 
temporal authority ; a yoke long borne with impatience, 

very soon carried into effect, were irre- Anne Boleyn an acknowledgment of her 

concilable with any sort of obedience to supposed pre-contract of marriage, having 

the pope ; and if, under all the circum- proceeded from motives of humanity, 

stances, his conduct was justifiable, there ought not to incur much censure, though 

would be an end of all promissory obli- the sentence of nullity was a mere mock- 

gations whatever. ery of law. — Poor Cranmer was compelled 

r The character of Cranmer is summed to subscribe not less than six recantations, 

up in no unfair manner by Mr. C Butler, Strype (iii. 232) had the integrity to 

Memoirs of English Catholics, vol. i. publish all these, which were not fully 

p. 139 ; except that his obtaining from known before. 

H 2 



100 CRANMER. Chap. If. 

and which the unanimous adherence of the prelates to 
Rome in the period of separation gave the Lutheran 
princes a good excuse for entirely throwing off. Some 
of the more temperate Reformers, as Melanchthon, would 
have admitted a limited jurisdiction of the episcopacy ; 
but in general the destruction of that order, such as it 
then existed, may be deemed as fundamental a principle 
of the new discipline as any theological point could be 
of the new doctrine. But besides that the subjection 
of ecclesiastical to civil tribunals, and possibly other 
causes, had rendered the superior clergy in England less 
obnoxious than in Germany, there was this important 
difference between the two countries, that several 
bishops from zealous conviction, many more from plia- 
bility to self-interest, had gone along with the new 
modelling of the English church by Henry and Edward; 
so that it was perfectly easy to keep up that form of 
government in the regular succession which had usually 
been deemed essential ; though the foreign reformers 
had neither the wish, nor possibly the means, to pre- 
serve it. Cranmer himself, indeed, during the reign of 
Henry, had bent, as usual, to the king's despotic humour, 
and favoured a novel theory of ecclesiastical authority, 
which resolved all its spiritual as well as temporal 
powers into the royal supremacy. Accordingly, at the 
accession of Edward, he himself, and several other 
bishops, took out commissions to hold their sees during 
pleasure. 8 But when the necessity of compliance had 
passed by, they showed a disposition not only to oppose 
the continual spoliation of church property, but to main- 
tain the jurisdiction which the canon law had conferred 
upon them.' And though, as this papal code did not 

" Burnet, ii. 6. exequiauderent. Ha»c querela ab omnibus 

t There are two curious entries in the proceribus non sine mcerore audita est ; 

Lords' Journ. 14th and 18th of Nov. 1549, et ut quam citissime huic malo subveni- 

which point out the origin of the new retur, injunctum est episcopis ut formu- 

code of ecclesiastical law mentioned in the lam aliquam statuti hac de re scriptam 

next note : " Hodie questi sunt episcopi, traderent : qua? si consilio postea pr«- 

contemni se a plebe, audere autem nihil lecta omnibus ordinibus probaretur, pro 

pro potestate sua administrare, eo quod lege omnibus sententiis sanciri posset 

per publlcas quasdam denuntiationes quas "18Nov. Hodie lecta est billa pro juris- 

proclamationes vocant, sublata esset pe- dictione episcoporum et aliorum eccle- 

uitus sua jurisdictio, adeo ut neminem siasticorum, qua; cum proceribus, eo quod 

judicio sistere, nullum scelus punire, episcopi nimis sibi arrogare viderentur, 

neminem ad aedem sacram cogere, neque non placeret, visum est deligere prudentes 

caetera id genus munia ad eos pertinentia aliquot viros utriusque ordinis, qui habita 



Reformation. 



CRANMER-NEW CANONS. 



101 



appear very well adapted to a protestant church, a new 
scheme of ecclesiastical laws was drawn up, which the 
king's death rendered abortive, this was rather calculated 
to strengthen the hands of the spiritual courts than to 
withdraw any matter from their cognisance. 11 



niatura Uinta' rei inter se deliberatione, 
referrent toti consilio quid pro ratione 
teraporis et rei necessitate in bac causa 
agi expediret." Accordingly, the lords 
appoint the archbishop of Canterbury, 
the bishops of Ely, Durham, and Lich- 
field, lords Dorset, Wharton, and Stafford, 
with chief justice Montague. 

u It had been enacted, 3 Edw. 6, 
c. 11, that thirty- two commissioners, half 
clergy, half lay, should be appointed to 
draw up a collection of new canons. But 
these, according to Strype, ii. 303 (though 
I do not find it in the act), might be re- 
duced to eight, without preserving the 
equality of orders; and of those nomi- 
nated in Nov. 1551, five were ecclesiastics, 
three laymen. The influence of the 
former shows itself in the collection, pub- 
lished with the title of Reformatio Legum 
Ecclesiasticum, and intended as a com- 
plete code of protestant canon law. This 
was referred for revisal to a new com- 
mission; but the king's death ensued, 
and the business was never again taken 
up. Burnet, ii. 197. Collier, 326. The 
Latin style is highly praised ; Cheke and 
Haddon, the most elegant scholars of that 
age, having been concerned in it. This, 
however, is of small importance. The 
canons are founded on a principle current 
among the- clergy, that a rigorous disci- 
pline enforced by church censures and 
the aid of the civil power is the best 
safeguard of a Christian commonwealth 
against vice. But it is easy to perceive 
that its severity would never have been 
endured in this country, and that this 
was the true reason why it was laid 
aside: not, according to the improbable 
refinement with which Warburton has 
furnished Hurd, because the old canon 
law was thought more favourable to the 
prerogative of the crown. Compare War- 
burton's Letters to Hurd, p. 192, with the 
latter's Moral and Political Dialogues, 
p. 308, 4th edit. 

The canons trench in several places on 
the known province of the common law, 
by assigning specific penalties and for- 



feitures to offences, as in the case of 
adultery ; and though it is true that this 
was all subject to the confirmation of 
parliament, yet the lawyers would look 
with their usual jealousy on such pro- 
visions in ecclesiastical canons. But the 
great sin of this protestant legislation is 
its extension of the name and penalties 
of heresy to the wilful denial of any part 
of the authorised articles of faith. This 
is clear from the first and second titles. 
But it has been doubted whether capital 
punishments for this offence were in- 
tended to be preserved. Burnet, always 
favourable to the reformers, asserts that 
they were laid aside. Collier and Lingard, 
whose bias is the other way, maintain 
the contrary. There is, it appears to me, 
some difficulty in determining this. That 
all persons denying any one of the articles 
might be turned over to the secular power 
is evident Yet it rather seems by one 
passage in the title, de judiciis contra 
hsreses, c. 10, that infamy and civil dis- 
ability were the only punishments in- 
tended to be kept up, except in case of 
the denial of the Christian religion. For 
if a heretic were, as a matter of course, to 
be burned, it seems needless to provide, 
as in this chapter, that he should be in- 
capable of being a witness, or of making 
a wilL Dr. Lingard, on the other hand, 
says, " It regulates the delivery of the 
obstinate heretic to the civil magistrate, 
that he may Buffer death according to 
law." The words to which he refers are 
these : Cum sic penitus insederit error, et 
tarn alte radices egerit, ut nee sententia 
quidem excommunicato mis ad veritatem 
reus inflecti possit, turn consumptis om- 
nibus aliis remediis, ad extremum ad 
civiles magistratus ablegetur^wniendiis. 
Id. tit. c. 4. 

It is generally best, where the words 
are at all ambiguous, to give the reader 
the power of judging for himself. But I 
by no means pretend that Dr. Lingard is 
mistaken. On the contrary, the language 
of this passage leads to a strong suspicion 
that the rigour of popish persecution was 



102 



CRANMER— NEW CANONS. 



Chap. II. 



The policy, or it may be the prejudices, of Cranmer 
induced him also to retain in the church a few cere- 
monial usages, which the Helvetic, though not the 
Lutheran, reformers had swept away, such as the copes 
and rochets of bishops, and the surplice of officiating 
priests. It should seem inconceivable that any one 
could object to these vestments, considered in them- 
selves ; far more, if they could answer in the slightest 
degree the end of conciliating a reluctant people. But 
this motive unfortunately was often disregarded in that 
age ; and indeed in all ages an abhorrence of concession 
and compromise is a never-failing characteristic of reli- 
gious factions. The foreign reformers then in England, 
two of whom, Bucer and Peter Martyr, enjoyed a 
deserved reputation, expressed their dissatisfaction at 
seeing these habits retained, and complained, in general, 



intended to remain, especially as the writ 
de hseretico comburendo was in force by 
law, and there is no hint of taking it 
away. Yet it seems monstrous to con- 
ceive that the denial of predestination 
(which by the way is asserted in this 
collection, tit de haeresibns, c. 22, with a 
shade more of Calvinism than in the ar- 
ticles) was to subject any one to be 
burned alive. And on the other hand 
there is this difficulty, that Arianism, 
Pelagianism, popery, anabaptism, are all 
put on the same footing ; so that, if we 
deny that the papist or free-wilier was 
to be burned, we must deny the same 
of the anti-trinitarian, which contradicts 
the principle and practice of that age. 
Upon the whole, I cannot form a decided 
opinion as to this matter. Dr. Lingard 
does not hesitate to say, " Cranmer and 
his associates perished in the flames which 
they had prepared to kindle for the de- 
struction of their opponents." 

Upon further consideration, I incline to 
suspect that the temporal punishment of 
heresy was intended to be fixed by act of 
parliament; and probably with various 
degrees, which will account for the indefi- 
nite word " puniendus." [A manuscript 
of the Reformatio Legum in the British 
Museum (Hart. 426) has the following 
clause after the word 1 puniendus: "Vel 
Bt in perpetuum pellatur exilium, vel ad 
eternas carceris deprimatur tenebras, vel 
alioqui pro magistratus prudenti con- 



sideratione plectendus, ut maxime illius 
conversioni expedire videntur." Jenkins's 
edition of Cranmer, vol. i. preface, ex. 
This seems to prove that capital penal- 
ties were not designed by the origi- 
nal compilers of this ecclesiastical code. 
1845.] 

The language of Dr. Lingard, as I have 
since observed, about "suffering death," 
is taken from Collier, who puts exactly 
the same construction on the canon. 

Before 1 quit these canons, one mistake 
of Dr. Lingard's may be corrected. He 
says that divorces were allowed by them 
not only for adultery, but cruelty, deser- 
tion, and incompatibility of temper. But 
the contrary may be clearly shown, from 
tit de matrimonio, c. 11, and tit de 
divortiis, c. 12. Divorce was allowed for 
something more than incompatibility of 
temper, namely, capitaUs inimicitice, 
meaning, as I conceive, attempts by one 
party on the other's life. In this respect 
their scheme of a very important branch 
of social law seems far better than our 
own. Nothing can be more absurd than 
our modern privilegia, our acts of parlia- 
ment to break the bond between an 
adulteress and her husband. Nor do I see 
how we can justify the denial,, of redress 
to women in every case of adultery and 
desertion. It does not follow that the 
marriage tie ought to be dissolved -as 
easily as it is in the Lutheran states of 
Germany. 



Reformation. PERSECUTION UNDER MAI:V. 103 

of the backwardness of the English reformation. Calvin 
and Bullinger wrote from Switzerland in the same 
strain." Nor was this sentiment by any means confined 
to strangers. Hooper, an eminent divine, having been 
elected bishop of Gloucester, refused to be consecrated 
in the usual dress. It marks, almost ludicrously, the 
spirit of those times, that, instead of permitting him to 
decline the station, the council sent him to prison for 
some time, until by some mutual concessions the business 
was adjusted/ These events it would hardly be worth 
while to notice in such a work as the present if they had 
not been the prologue to a long and serious drama. 

It is certain that the re- establishment of popery on 
Mary's accession must have been acceptable to „ 
a large part, or perhaps to the majority, of the Persecution 
nation. There is reason, however, to believe underher - 
that the reformed doctrine had made a real progress in 
the few years of her brother's reign. The counties of 
Norfolk and Suffolk, which placed Mary on the throne 
as the lawful heir, were chiefly protestant, and expe- 
rienced from her the usual gratitude and good faith of a 
bigot.* Noailles bears witness, in many of his despatches, 
to the unwillingness which great numbers of the people 
displayed to endure the restoration of popery, and to the 
queen's excessive unpopularity, even before her mar- 
riage with Philip had been resolved upon." As for the 
higher classes, they partook far less than their inferiors 
in the religious zeal of that age. Henry, Edward, Mary, 
Elizabeth, found almost an equal compliance with their 
varying schemes of faith. Yet the larger proportion of 
the nobility and gentry appear to have preferred the 
catholic religion. Several peers opposed the bills for 
reformation under Edward ; and others, who had gone 
along with the current, became active counsellors of 
Mary. Not a few persons of family emigrated in the 
latter reign ; but with the exception of the second earl 
of Bedford, who suffered a short imprisonment on ac- 
count of religion, the protestant martyrology contains 
no confessor of superior rank. b The same accommodating 

x Strype, passim. Burnet, ii. 154 ; iii. No part of England suffered so much in 

Append. 200. ' Collier, 294, 303. the persecution. 

y Strype, Burnet The former is the a Ambassades de Noailles, v. ii. passim, 

more accurate. 3 Strype, 100. 

1 Burnet, 237, 246. 3 Strype, 10, 341. b Strype, iii. 107. He reckons the 



104 PERSECUTION UNDER JIARY. Chap. II. 

spirit characterised, upon the whole, the clergy; and 
would have been far more general, if a considerable 
number had not availed themselves of the permission to 
marry granted by Edward ; which led to their expulsion 
from their cures on his sister's coming to the throne. 
Yet it was not the temper of Mary's parliaments, what- 
ever pains had been taken about their election, to 
second her bigotry in surrendering the temporal fruits 
of their recent schism. The bill for restoring first fruits 
and impropriations in the queen's hands to the church 
passed not without difficulty ; and it was found impos- 
sible to obtain a repeal of the act of supremacy without 
the pope's explicit confirmation of the abbey lands to 
their new proprietors. Even this confirmation, though 
made through the legate cardinal Pole, by virtue of a 
full commission, left not unreasonably an apprehension 
that, on some better opportunity, the imprescriptible 
nature of church property might be urged against the 
possessors. 11 With these selfish considerations others of a 

emigrants at 800. Life of Cranmer, 314. church lands in the hands of the crown 

Of these the most illustrious was the cost the queen 60,0002. a 3'ear of revenue, 

duchess of Suffolk, — not the first cousin c Parke had extravagantly reckoned 

of the queen, but, as has been suggested to the number of these at 12,000, which 

me, the sister of Charles Brandon, whose Burnet reduces to 3000, vol. iii. 226. But 

first wife was sister to Henry VIII. In upon this computation they formed a 

the parliament of 1555, abill sequestering very considerable body on the protestant 

the property of " the duchess of Suffolk side. Burnet's calculation, however, is 

and others, contemptuously gone over the made by assuming the ejected ministers 

seas," was rejected by the commons on of the diocese of Norwich to have been 

the third reading. Journals, 6th Dec. in the ratio of the whole ; which, from 

It must not be understood that all the eminent protestantism of that district, 

the aristocracy were supple hypocrites, is not probable; and Dr. Lingard, on 

though they did not expose themselves Wharton's authority, who has taken his 

voluntarily to prosecution. Noailles tells ratio from the diocese of Canterbury, 

us that the earls of Oxford and West- thinks they did not amount to more than 

moreland, and lord Willoughby, were about 1500. 

censured by the council for religion ; and d Burnet, ii. 298, iii. 215. But see 

it was thought that the former would lose Philips's Life of Pole, sect ix., contra; 

his title (more probably his hereditary and Ridley's answer to this, p. 272. In 

office of chamberlain), which would be fact, no scheme of religion would on the 

conferred on the earl of Pembroke, v. 31 9. whole have been so acceptable to the 

Michele, the Venetian ambassador, in his nation as that which Henry left esta- 

Relazione del Stato d' Inghilterra, Lans- Wished, consisting chiefly of what was 

downe MSS. 840, does not speak favour- called catholic in doctrine, but free from 

ably of the general affection towards the grosser abuses and from all connec- 

popery. " The English in general," he tion with the see of Rome. Arbitrary and 

says, " would turn Jews or Turks if their capricious'as that king was, he carried the 

sovereign pleased ; but the restoration of majority along with him, as I believe, in 

the abbey lands by the crown keeps alive all great points, both as to what he re- 

a constant fear among those who possess nounced and what he retained. Michele 

them." FoL 176. This restitution of (Relazione, &c.) is of this opinion. 



Information. PERSECUTION UNDER MARY. 105 

more generous nature conspired to render the old religion 
more obnoxious than it had been at the queen's acces- 
sion. Her marriage with Philip, his encroaching dispo- 
sition, the arbitrary turn of his counsels, the insolence 
imputed to the Spaniards who accompanied him, the 
unfortunate loss of Calais through that alliance, while it 
thoroughly alienated the kingdom from Mary, created a 
prejudice against the religion which the Spanish court 
so steadily favoured. 8 So violent indeed was the hatred 
conceived by the English nation against Spain during 
the short period of Philip's marriage with their queen, 
that it diverted the old channel of public feelings, and 
almost put an end to that dislike and jealousy of France 
which had so long existed. For at least a century after 
this time we rarely find in popular writers any expres- 
sions of hostility towards that country; though their 
national manners, so remote from our own, are not un- 
frequently the object of ridicule. The prejudices of the 
populace, as much as the policy of our councillors, were 
far more directed against Spain. 

But what had the greatest efficacy in disgusting the 
English with Mary's system of faith, was the its effect 
cruelty by which it was accompanied. Though ™ ther 

, J . J ., • c , i-Ti favourable 

the privy council were in tact continually to pro- 
urging the bishops forward in this prosecu- te9tantism - 
tion/ the latter bore the chief blame, and the abhorrence 



c Xo one of our historians has been so reign, though little pleasing to men of 

severe on Mary's reign, except on a reli- Dr. Lingard's profession, are perfectly 

gious account, as Carte, on the authority just: — " Having reduced the nation to the 

of the letters of Noailles. Dr. Lingard, brink of ruin, she left it, by her seasonable 

though with these before him, has softened decease, to be restored by her admirable 

and suppressed, till this queen appears successor to its ancient prosperity and 

honest and even amiable. But, admitting glory." I fully admit, at the same time, 

that the French ambassador had a temp tu- that Dr. Lingard has proved Elizabeth to 

tion to exaggerate the faults of a govern- have been as dangerous a prisoner as she 

ment wholly devoted to Spain, it is mani- afterwards found the queen of Scots, 
fest that Mary's reign was inglorious, her f Strype, ii. 17; Burnet, hi. 263, and 

capacity narrow, and her temper san- Append. 285, where there is a letter from 

guinary ; that, although conscientious in the king and queen to Bonner, as if even 

some respects, she was as capable of dis- he wanted excitement to prosecute here- 

simulation as her sister, and of breach of tics. The number who suffered death by 

faith as her husband ; that she obsti- fire in this reign is reckoned by Fox at 

nately and wilfully sacrificed her subjects' 284, by Speed at 277, and by lord Burghley 

affections and interests to a misplaced and at 290. Strype, ili. 473. These numbers 

discreditable attachment ; and that the come so near to each other, that they may 

words with which Carte has concluded be presumed also to approach the truth, 

the character of this unlamented sove- But Carte, on the authority of one of 



106 



PERSECUTION UNDER MARY. 



Chap. II. 



entertained for them naturally extended to the doctrine 
they professed. A sort of instinctive reasoning told the 
people, what the learned on neither side had been able 
to discover, that the truth of a religion begins to be 
very suspicious when it stands in need of prisons and 
scaffolds to eke out its evidences. And as the English 
were constitutionally humane, and not hardened by con- 
tinually witnessing the infliction of barbarous punish- 
ments, there arose a sympathy for men suffering tor- 
ments with such meekness and patience, which the 
populace of some other nations were perhaps less apt to 
display, especially in executions on the score of heresy. 5 
The theologian indeed and the philosopher may concur 
in deriding the notion that either sincerity or moral 
rectitude can be the test of truth ; yet among the 
various species of authority to which recourse had been 
had to supersede or to supply the deficiencies of argu- 
ment, I know not whether any be more reasonable, and 
none certainly is so congenial to unsophisticated minds. 
Many are said to have become protestants under Mary, 



Noailles's letters, thinks many more were 
put to death than our martyrologists have 
discovered. And the prefacer to Ridley's 
Treatise de Coena Domini, supposed to be 
bishop Orindal, says that 800 suffered in 
this manner for religion. Burnet, ii. 364. 
I incline, however, to the lower state- 
ments. 

S Burnet makes a very just observation 
on the cruelties of this period, that " they 
raised that horror in the whole nation, 
that there seems ever since that time such 
an abhorrence to that religion to be de- 
rived down from father to son, that it is 
no wonder an aversion so deeply rooted, 
and raised upon such grounds, does, upon 
every new provocation or jealousy of re- 
turning to it, break out in most violent 
and convulsive symptoms," p. 388. " De- 
licta majorum immeritus luis, Rornane." 
But those who would diminish this aver- 
sion and prevent these convulsive symp- 
toms will do better by avoiding for the 
future either such panegyrics on Mary 
and her advisers, or such insidious ex- 
tenuations of her persecution, as we have 
lately read, and which do not raise a 
favourable impression of their sincerity 
in the principles of toleration to which 



they profess to have been converted. 

Noailles, who, though an enemy to 
Mary's government, must, as a catholic, 
be reckoned an unsuspicious witness, re- 
markably confirms the account given by 
Fox, and since by all our writers, of the 
death of Rogers, the proto-martyr, and its 
effect on the people. " Ce jour d'huy a 
est£ faite la confirmation de l'alliance 
entre le pape et ce royaume par un sacri- 
fice publique et solemnel d'un docteur 
prddicant nomine" Rogerus, lequel a e"te 
brule" tout vif pour estre Lutherien ; mais 
il est mort persistant en son opinion. A 
quoy le plus grand partie de ce peuple a 
pris tel plaisir, qu'ils n'ont eu crainte 
de luy faire plusieurs acclamations pour 
comforter son courage ; et metne ses en- 
fans y ont assists, le consolant de telle 
facon qu'il semblait qu'on le menait aux 
noces." V. 173. 

[The execration with which Mary's 
bishops were met in the next reign is 
attested in a letter of Parkhurst to Conrad 
Gesner. " Jam et Deo et hominibus sunt 
exosi, nee usquam nisi inviti prorepunt, 
ne forte fiat tumultus in populo. Multi 
coram eos vocant carnifices." Zurich Let- 
ters, by Parker Society, p. 18. 1845.] 



Reformation-. PERSECUTION UNDER MARY. 107 

who, at her coming to the throne, had retained the con- 
trary persuasion. 11 And the strongest proof of this may 
be drawn from the acquiescence of the great body of the 
kingdom in the re-establishment of protestantism by 
Elizabeth, when compared with the seditions and dis- 
content on that account under Edward. The course 
which this famous princess steered in ecclesiastical con- 
cerns, during her long reign, will form the subject of 
the two ensuing chapters. 

h Strype, iii. 285. 



108 ACCESSION OF ELIZABETH, Chap. III. 



CHAPTER III. 

ON THE LAWS OF ELIZABETH'S REIGN RESPECTING THE ROMAN 
CATHOLICS. 



Change of Religion on the Queen's Accession — Acts of Supremacy and Uniformity 

— Restraint of Roman Catholic Worship in the first Years of Elizabeth — Statute 
of 1562 — Speech of Lord Montague against it — This Act not fully enforced — 
Application of the Emperor in behalf of the English Catholics — Persecution of 
this Body in the ensuing Period — Uncertain Succession of the Crown between 
the Families of Scotland and Suffolk — the Queen's unwillingness to decide this, 

, or to marry — Imprisonment of Lady Catherine Grey — Mary Queen of Scotland 

— Combination tu her Favour — Bull of Pius V. — Statutes for the Queen's 
Security — Catholics more rigorously treated — Refugees in the Netherlands — 
Their Hostility to the Government — Fresh Laws against the Catholic Worship 

— Execution of Campian and others — Defence of the Queen by Burleigh — 
Increased Severity of the Government — Mary — Plot in her Favour — Her 
Execution — Remarks upon it — Continued Persecution of Roman Catholics — 
General Observations. 

The accession of Elizabeth, gratifying to the whole na- 
tion on account of the late queen's extreme unpopularity, 
infused peculiar joy into the hearts of all well-wishers 
to the Reformation. Child of that famous marriage 
which had severed the connection of England with the 
Roman see, and trained betimes in the learned and rea- 
soning discipline of protestant theology, suspected and 
oppressed for that very reason by a sister's jealousy, and 
scarcely preserved from the death which at one time 
threatened her, there was every ground to be confident, 
that, notwithstanding her forced compliance with the 
catholic rites during the late reign, her inclinations had 
continued stedfast to the opposite side. a Nor 
religion on was she long in manifesting this disposition 
accession" S sufficiently to alarm one party, though not en- 
tirely to satisfy the other. Her great prudence, 
and that of her advisers, which taught her to move 

a Elizabeth was much suspected of a earl of Devonshire for her husband, 

concern in the conspiracy of 1554, which Wyatt indeed at his execution acquitted 

was more extensive than appeared from her ; but as he said as much for Devon- 

Wyatt's insurrection, and had in view shire, who is proved by the letters of 

the placing her on the throne, with the Noailles to have been engaged, his testi- 



Eliz.— Catholics. 



NOTIFIED TO PAUL IV. 



109 



slowly, while the temper of the nation was still uncer- 
tain, and her government still embarrassed with a French 
war and a Spanish alliance, joined with a certain tendency 
in her religious sentiments not so thoroughly protestant 
as had been expected, produced some complaints of 
delay from the ardent reformers just returned from 
exile. She directed sir Edward Carne, her sister's am- 
bassador at Eome, to notify her accession to Paul IV. 
Several catholic writers have laid stress on this circum- 
stance as indicative of a desire to remain in his commu- 
nion ; and have attributed her separation from it to his 
arrogant reply, commanding her to lay down the title of 
royalty, and to submit her pretensions to his decision. b 



mony is of less value. Nothing, however, 
appears in these letters, I believe, to cri- 
minate Elizabeth. Her life was saved, 
against the advice of the imperial court, 
and of their party in the cabine t, especially 
lord Paget, by the influence of Gardiner, 
according to Dr. Lingard, writing on the 
authority of Renard's despatches. Bur- 
net, who had no access to that source of 
information, imagines Gardiner to have 
been her most inveterate enemy. She 
was even released from prison for the 
time, though soon afterwards detained 
again, and kept in custody, as is well 
known, for the rest of this reign. Her 
inimitable dissimulation was all required 
to save her from the penalties of heresy 
and treason. It appears by the memoir 
of the Venetian ambassador, in 1557 
(Lansdowne MSS. 840), as well as from 
the letters of Xoailles, that Mary was 
desirous to change the succession, and 
would have done so, had it not been for 
Philip's reluctance, and the impractica- 
bility of obtaining the consent of parlia- 
ment Though herself of a dissembling 
character, she could not conceal the hatred 
she bore to one who brought back the 
memory of her mother's and her own 
wrongs ; especially when she saw all 
eyes turned towards the successor, and 
felt that the curse of her own barrenness 
was to fall on her beloved religion. Eli- 
zabeth had been not only forced to have 
a chapel in her house, and to give all ex- 
terior signs of conformity, but to protest 
on oath her attachment to the catholic 
faith ; though Hume, who always loves a 
popular story, gives credence to the well- 
known verses ascribed to her, in order to 



elude a declaration of her opinion on the 
sacrament. The inquisitors of that age 
were not so easily turned round by an 
equivocal answer. Yet Elizabeth's faith 
was constantly suspected. " Accresce 
oltro questo 1' odio," says the Venetian, 
" il sapere che sia aliena dalla religione 
presente, per essere non pur nata, ma 
dotta ed allevata nell' altra, che se bene 
con la esteriore ba mostrato, e mostra di 
essersi ridotta, vivendo cattolicamente, 
pure & opinione che dissimuli e nell' in- 
teriore la ritenga piu che mai." 

*> [This remarkable fact, which runs 
through all domestic and foreign his- 
tories, has been disputed, and, as far as 
appears, disproved, by the late editor of 
Dodd's Church History of England, vol. 
iv. preface, on the authority of Carne s 
own letters in the State Paper Office. 
It is at least highly probable, not to say 
evident, from these, that Elizabeth never 
contemplated so much intercourse with 
the pope, even as a temporal sovereign, 
or to notify her accession to him; and 
it had before been shown by Strype, 
that, on Dec. 1, 1558, an order was de- 
spatched to Carne, forbidding him to pro- 
ceed in an ecclesiastical suit, wherein, as 
English ambassador, he had been engaged. 
Strype's Annals, i. 34. Carne, on his own 
solicitation, was recalled, l'eb. 10; though 
the pope would not suffer him, nor, when 
he saw what was going forward at home, 
was he willing, to return. Mr. Tiemey, 
the editor of Dodd, conceives the story of 
Paul IV.'s intemperate language to have 
been coined by " the inventive powers 
of Paul Sarpi," who first published it 
in his History of the Council of Trent, 



110 



FIRST PARLIAMENT OF ELIZABETH. Chap. III. 



But she had begun to make alterations, though not very 
essential, in the church service, before the pope's beha- 
viour could have become known to her ; and the bishops 
must have been well aware of the course she designed 
to pursue, when they adopted the violent and impolitic 
resolution of refusing to officiate at her coronation/ Her 
council was formed of a very few catholics, of several 
pliant conformists with all changes, and of some known 
friends to the protestant interest. But two of these, 
Cecil and Bacon, were so much higher in her confidence, 
and so incomparably superior in talents to the other 
councillors, that it was evident which way she must in- 
clined The parliament met about two months after her 
accession. The creed of parliament from the time of 
Henry VIII. had been always that of the court ; whether 
it were that elections had constantly been influenced, as 
we know was sometimes the case, or that men of adverse 
principles, yielding to the torrent, had left the way clear 
to the partisans of power. This first, like all subsequent 



in 1619. From him Mr. T. supposes 
Spondanus and Pallavicino to have taken 
it; and from them it has passed to a 
multitude of catholic as well as protestant 
historians. It may, however, seem rather 
doubtful whether Spondanus would have 
taken this simply on the authority of 
Sarpi; and we may perhaps conjecture 
that the anecdote had been already in 
circulation, even if it had never appeared 
in print, (a negative hard to establish,) 
before the publication of the History of 
the Council of Trent. Nor is it impro- 
bable that Paul, according to the violence 
of his disposition, had uttered some such 
language, and even to Carne himself, 
though not, as the story represents it, in 
reply to an official communication. But 
it is chiefly material to observe, that 
P^lizabeth displayed her determination to 
keep aloof from Rome in the very begin- 
ning of her reign. 1845.] 

c Elizabeth ascended the throne No- 
vember 17, 1558. On the 5th of De- 
cember Mary was buried ; and on this 
occasion White, bishop of Winchester, in 
preaching her funeral sermon, spoke with 
virulence against the protestant exiles, 
and expressed apprehension of their re- 
turn. Burnet, iii. 272. Directions to 
read part of the service in English, and 



forbidding the elevation of the host, were 
issued prior to the proclamation of De- 
cember 27, against innovations without 
authority. The great seal was taken 
from archbishop Heath early in January, 
and given to sir Nicholas Bacon. Parker 
was pitched upon to succeed Pole at 
Canterbury in the preceding month. 
From the dates of these and other facts, 
it may be fairly inferred that Elizabeth's 
resolution was formed independently of 
the pope's behaviour towards sir Edward 
Carne; though that might probably ex- 
asperate her against the adherents of the 
Roman see, and make their religion ap- 
pear more inconsistent with their civil 
allegiance. If, indeed, the refusal of the 
bishops to officiate at her coronation 
(Jan. 14, 1558-9) were founded in any 
degree on Paul IV.'s denial of her title, it 
must have seemed in that age within a 
hair's breadth of high treason. But it 
more probably arose from her order that 
the host should not be elevated, which in 
truth was not legally to be justified. 

d See a paper by Cecil on the best 
means of reforming religion, written at 
this time with all his cautious wisdom, 
in Burnet, or in Strype's Annals of 
the Reformation, or in the Somers 
Tracts. 



Eliz.- Catholics. ECCLESIASTICAL VISITATION. Ill 

parliaments, was to the full as favourable to protestant- 
ism as the queen could desire : the first-fruits of bene- 
fices, and, what was far more important, the supremacy 
in ecclesiastical affairs, were restored to the crown ; the 
laws made concerning religion in Edward's time were 
re-enacted. These acts did not pass without consider- 
able opposition among the lords ; nine temporal peers, 
besides all the bishops, having protested against the bill 
of uniformity establishing the Anglican liturgy, though 
some pains had been taken to soften the passages most 
obnoxious to catholics. 6 But the act restoring the royal 
supremacy met with less resistance ; whether it were 
that the system of Henry retained its hold over some 
minds, or that it did not encroach, like the former, on 
the liberty of conscience, or that men not over-scrupu- 
lous were satisfied with the interpretation which the 
queen caused to be put upon the oath. 

Several of the bishops had submitted to the Reforma- 
tion under Edward VI. But they had acted, in general, 
so conspicuous a part in the late restoration of popery, 
that, even amidst so many examples of false profession, 
shame restrained them from a second apostasy. Their 
number happened not to exceed sixteen, one of whom 
was prevailed on to conform ; while the rest, refusing 
the oath of supremacy, were deprived of their bishoprics 
by the court of ecclesiastical high commission. In the 
summer of 1 559 the queen appointed a general ecclesi- 
astical visitation, to compel the observance of the pro- 
testant formularies. It appears from their reports that 
only about one hundred dignitaries, and eighty parochial 
priests, resigned their benefices, or were deprived/ Men 

« e Pari. Hist voL i. p. 394. In the greater part of the nation still adhered 

reign of Edward a prayer had been in- to this tenet, thongh it was not the 

serted in the liturgy to deliver us " from opinion of the rulers of the church, 

the bishop of Rome and all his detestable ii. 390, 406. 

enormities." This was now struck out; f Burnet; Strype's Annals, 169. Pen- 
arid, what was more acceptable to the sions were reserved for those who quitted 
nation, the words used in distributing the their benefices on account of religion, 
elements were so contrived, by blending Burnet, ii. 398. This was a very liberal 
the two forms successively adopted under measure, and at the same time a politic 
Edward, as neither to oifend the popish check on their conduct Lingard thinks 
or Lutheran, nor the Zuinglian commu- the number must have been much greater; 
nicant A rubric directed against the but the visitors' reports seem the best 
doctrine of the real or corporal presence authority. It is, however, highly pro- 
was omitted. This was replaced after bable that others resigned their prefer- 
the Restoration. Bumet owns that the ments afterwards, when the casuistry of 



112 



ACTS OF SUPREMACY 



Chap. III. 



eminent for their zeal in the protestant cause, and most 
of them exiles during the persecution, occupied the 
vacant sees. And thus, before the end of 1559, the 
English church, so long contended for as a prize by the 
two religions, was lost for ever to that of Rome. . 
. These two statutes, commonly denominated the Acts 
of Supremacy and Uniformity, foim the basis 
Supremacy of that restrictive code of laws, deemed by'some 
andUni- one f the fundamental bulwarks, by others 
the reproach of our constitution, which pressed 
so heavily for more than two centuries upon the adhe- 
rents to the Eomish church. By the fonner all bene- 
ficed ecclesiastics, and all laymen holding office under 
the crown, were obliged to take the oath of supremacy, 
renouncing the spiritual as well as temporal jurisdiction 
of every foreign prince or prelate, on pain of forfeiting 
their office or benefice ; and it was rendered highly penal , 
and for the third offence treasonable, to maintain such 
supremacy by writing or advised speaking. g The latter 



their church grew more scrupulous. It 
may be added, that the visitors restored 
the married clergy who had been dis- 
possessed in the preceding reign ; which 
would of course considerably augment 
the number of sufferers for popery. 

s 1 Eliz. c. 1. The oath of supremacy 
was expressed as follows : — " I, A. B., 
do utterly testify and declare, that the 
queen's highness is the only supreme 
governor of this realm, and all other her 
highness's dominions and countries, as 
well in all spiritual and ecclesiastical 
things or causes as temporal ; and that 
no foreign prince, person, prelate, state, 
or potentate, hath or ought to have any 
jurisdiction, power, superiority, pre-emi- 
nence, or authority, ecclesiastical or spi- 
ritual, within this realm ; and therefore 
I do utterly renounce and forsake all 
foreign jurisdictions, powers, superiori- 
ties, and authorities, and do promise that 
from henceforth 1 shall bear faith and 
true allegiance to the queen's highness, 
her heirs and lawful successors, and to 
my power shall assist and defend all 
jurisdictions, pre-eminences, privileges, 
and authorities, granted or belonging to 
the queen's highness, her heirs and suc- 
cessors, or united and annexed to the 
imjjejaal crown of this realm." 



A remarkable passage in the injunc- 
tions to the ecclesiastical visitors of 1559, 
which may be reckoned in the nature of 
a contemporaneous exposition of the law, 
restrains the royal supremacy established 
by this act, and asserted in the above 
oath, in the following words : " Her 
majesty forbiddeth all manner her sub- 
jects to give ear or credit to such perverse 
and malicious persons, which most sinis- 
terly and maliciously labour to notify 
to her loving subjects how by words of 
the said oath it may be collected that 
the kings or queens of this realm, pos- 
sessors of the crown, may challenge au- 
thority and power of ministry of divine 
service in the church ; wherein her said 
subjects be much abused by such evil 
disposed persons. For certainly her ma- 
jesty neither doth, nor ever will, chal- 
lenge any other authority than that was 
challenged and lately used by the said 
noble kings of famous memory, king 
Henry VIII. and king Edward VI., which 
is, and was of ancient time, due to the 
imperial crown of this realm; that is, 
under God to have the sovereignty and 
rule over all manner of persons born 
within these her realms, dominions, and 
countries, of what estate, either ecclesi- 
astical or temporal, soever they be, so as 



Eliz.— Catholics. INTERDICTION OF CATHOLIC RITES. 113 



statute* trenched more on the natural rights of con- 
science ; prohibiting, under pain of forfeiting goods and 
chattels for the first offence, of a year's imprisonment 
for the second, and of imprisonment during life for the 
.ihird, the use by a minister, whether beneficed or not, 
of any but the established liturgy ; and imposed a fine 
of one shilling on all who should absent themselves from 
church on Sundays and holydays. g 

This act -operated as an absolute interdiction of the 
catholic rites, however privately celebrated. Restraint 
It has frequently been asserted, that the go- 
vernment connived at the domestic exercise of 
that religion during these first years of Eliza- 
beth's reign. This may possibly have been the 
case with respect' to some persons of very high rank 
whom it was inexpedient to irritate. But we find in- 
stances of severity towards catholics, even in that early 
period ; and it is evident that their solemn rites were 
only performed by stealth, and at much hazard. Thus 



of Roman 

Catholic 

worship in 

the first 
ears of 
Elizabeth. 



E 



no other foreign power shall or ought to 
have any superiority over them. And if 
any person that hath conceived any other 
sense of the form of the said oath shall 
accept the same with this interpretation, 
sense or meaning, her majesty is well 
pleased to accept every such in that be- 
half, as her good and obedient subjects, 
and shall acquit them of all manner of 
penalties contained in the said act, against 
such as shall peremptorily or obstinately 
refuse to take the same oath." 1 Somers 
Tracts, edit Scott, 73. 

This interpretation was afterwards 
given in one of the thirty-nine articles, 
which having been confirmed by parlia- 
ment, it is undoubtedly to be reckoned 
the true sense of the oath. Mr. Butler, in 
his Memoirs of English Catholics, vol. i. 
p. 157, enters into a discussion of the 
question, whether Roman catholics might 
conscientiously take the oath of supre- 
macy in this sense. It appears that in 
the seventeenth century some contended 
for the affirmative ; and this seems to 
explain the fact that several persons of 
that persuasion, besides peers, from whom 
the oath was not exacted, did actually 
hold offices under the Stuarts, and even 
enter into parliament, and that the test 
act and declaration against transubstan- 
V0L. I. 



tiation were thus rendered necessary to 
make their exclusion certain. Mr. B. 
decides against taking the oath, but on 
grounds by no means sufficient; and 
oddly overlooks the decisive objection, 
that it denies in toto the jurisdiction and 
ecclesiastical authority of the pope. No 
writer, as far as my slender knowledge 
extends, of the Gallican or German school 
of discipline, has gone to this length ; cer- 
tainly not Mr. Butler himself, who in a 
modern publication, Book of the Roman 
Catholic Church, p. 120, seems to consider 
even the appellant jurisdiction in eccle- 
siastical causes as vested in the holy see 
by divine right 

As to the exposition before given of 
the oath of supremacy, I conceive that it 
was intended not only to relieve the 
scruples of catholics, but of those who 
had imbibed from the school of Calvin 
an apprehension of what is sometimes, 
though rather improperly, called Eras- 
tianism,— the merging of all spiritual 
powers, even those of ordination and of 
preaching, in the paramount authority of 
the state, towards which the despotism 
of Henry, and obsequiousness of Cran- 
mer, had seemed to bring the church of 
England. 

e 1 Eliz. c. 2. 



114 PERSECUTION. Chap. III. 

sir Edward Waldgrave and his lady were sent to the 
Tower in 1561, for hearing mass and having a priest in 
their house. Many others about the same time were 
punished for the like oifence. h Two bishops, one of 
whom, I regret to say, was Grindal, write to the council 
in 1562, concerning a priest apprehended in a lady's 
house, that neither he nor the servants would be sworn 
to answer to articles, saying they would not accuse 
themselves ; and, after a wise remark on this, that " pa- 
pistry is like to end in anabaptistry," proceed to hint, 
that " some think that if this priest might be put to 
some kind of torment, and so driven to confess what he 
knoweth, he might gain the queen's majesty a good mass 
of money by the masses that he hath said ; but this we 
refer to your lordships' wisdom." ' This commencement 
of persecution induced many catholics to fly beyond 
sea, and gave rise to those re-unions of disaffected 
exiles, which never ceased to endanger the throne of 
Elizabeth. 

' It cannot, as far as appears, be truly alleged that any 
greater provocation had as yet been given by the catho- 
lics than that of pertinaciously continuing to believe 
and worship as their fathers had done before them. I 
request those who may hesitate about this, to pay some 
attention to the order of time, before they form their 
opinions. The master mover, that became afterwards so 
busy, had not yet put his wires into action. Every 
prudent man at Eome (and we shall not at least deny 
that there were such) condemned the precipitate and 
insolent behaviour of Paul IV. towards Elizabeth, as 
they did most other parts of his administration. Pius 
IV., the successor of that injudicious old man, aware 
of the inestimable importance of reconciliation, and sus- 
pecting probably that the queen's turn of thinking did 
not exclude all hope of it, despatched a nuncio to Eng- 
land, with an invitation to send ambassadors to the 
council at Trent, and with powers, as is said, to confirm 
the English liturgy, and to permit double communion ; 
one of the few concessions which the more indulgent 

h Strype's Annals, i. 233, 241. These imprisonments were probably in 

i Haynes,395. Tbe penalty for causing many cases illegal, and only sustained by 

mass to be said, by the act of uniformity, the arbitrary power of the High Commis- 

was only 100 marks for the first offence, sion court 



Eliz.— Catholics. PROPHECIES OF THE QUEEN'S DEATH. 115 

Romanists of that age were not very reluctant to make. k 
But Elizabeth had taken her line as to the court of 
Rome ; the nuncio received a message at Brussels, that 
he must not enter the kingdom ; and she was too wise 
to countenance the impartial fathers of Trent, whose 
labours had nearly drawn to a close, and whose deci- 
sions on the controverted points it had never been 
very difficult to foretell. I have not found that Pius IV., 
more moderate than most other pontiffs of the sixteenth 
century, took any measures hostile to the temporal go- 
vernment of this realm : but the deprived ecclesiastics 
were not unfairly anxious to keep alive the faith of their 
former hearers, and to prevent them from sliding into con- 
formity, through indifference and disuse of their ancient 
rites. m The means taken were chiefly the same as had 
been adopted against themselves, the dispersion of small 
papers either in a serious or lively strain ; but the 
remarkable position in which the queen was placed ren- 
dering her death a most important contingency, the 
popish party made use of pretended conjurations and 
prophecies of that event, in order to unsettle the people's 
minds, and dispose them to anticipate another re- 
action." Partly through these political circumstances, 
but far more from the hard usage they experienced for 
professing their religion, there seems to have been an 
increasing restlessness among the catholics about 1562, 
which was met with new rigour by the parliament of 
that year. 

k Strype, 220. lies with the conspiracy of the two Poles, 

m Questions of conscience were circu- nephews of the cardinal, and some others, 

lated, with answers all tending to show to obtain five thousand troops from the 

the unlawfulness of conformity. Strype, duke of Guise, and proclaim Mary queen. 

228. There was nothing more in this This seems however to have been the 

than the catholic Clergy were bound in immediate provocation for the statute 5 

consistency with their principles to do, Eliz. ; and it may be thought to indicate 

though it seemed very atrocious to bigots, a good deal of discontent in that party 

Mr. Butler says, that some theologians at upon which the conspirators relied. But 

Trent were consulted as to the lawfulness as Elizabeth spared the lives of all who 

of occasional conformity to the Anglican were arraigned, and we know no details 

rites, who pronounced against it. Mem. of the case, it may be doubted whether 

of Catholics, i. 171. their intentions were altogether so cri- 

n The trick of conjuration about the minal as was charged. Strype, i. 333 ; 

queen's death began very early in her Camden, 388 (in Kennet). 
reign (Strype, i. 7), and led to a penal Strype tells us (i. 374) of resolutions 

statute against " fond and fantastical pro- adopted against the queen in a consistory 

phecies." 5 Eliz. c. 15. held by Pius IV. in 1563 ; one of these is 

I know not how to charge the catho- a pardon to any cook, brewer, vintner, or 

I 2 



X 



11G STATUTE OF 1562 Chap. III. 

The act entitled, " for the assurance of the queen's 
statute of royal power over all estates and subjects within 
1562. ij er dominions," enacts, with an iniquitous and 
sanguinary retrospect, that all persons, who had ever 
taken holy orders or any degree in the universities, or 
had been admitted to the practice of the laws, or held 
any office in their execution, should be bound to take the 
oath of supremacy, when tendered to them by a bishop, 
or by commissioners appointed under the great seal. 
The penalty for the first refusal of this oath was that 
of a praemunire ; but any person who, after the space of 
three months from the first tender, should again refuse it 
when in like manner tendered, incurred the pains of high 
treason. The oath of supremacy was imposed by the 
statute on every member of the House of Commons, but 
could not be tendered to a peer ; the queen declaring 
her full confidence in those hereditary councillors. 
Several peers of great weight and dignity were still 
catholics. p 

This harsh statute did not pass without opposition. 
Two speeches against it have been preserved ; 
ioYd one by lord Montagu in the House of Lords, 
amtosttt ^ aB otner by Mr. Atkinson in the Commons, 
breathing such generous abhorrence of per- 
secution as some erroneously imagine to have been 
unknown to that age, because we rarely meet with it in 
theological writings. " This law," said lord Montagu, 
"is not necessary; forasmuch as the catholics of this 
realm disturb not, nor hinder the public affairs of the 
realm, neither spiritual nor temporal. They dispute not, 
they preach not, they disobey not the queen ; they cause 
no trouble nor tumults among the people ; so that no 
man can say that thereby the realm doth receive any 
hurt or damage by them. They have brought into the 
realm no novelties in doctrine and religion. This being 
true and evident, as it is indeed, there is no necessity 
why any new law should be made against them. And 
where there is no sore nor grief, medicines are superflu- 
ous, and also hurtful and dangerous. I do entreat," he 
says afterwards, " whether it be just to make this penal 

other, that, would poison her. But this pect the rest, as false information of a 

is so unlikely, and so little in that spy. 

pope's character, that it makes us sus- v 5 Eliz. c 1. 



Eliz.— Catholics. NOT FULLY ENFORCED. 117 

statute to force the subjects of this realm to receive and 
believe the religion of protestants on pain of death. 
This I say to be a thing most unjust; for that it is 
repugnant to the natural liberty of men's understanding. 
For understanding may be persuaded but not forced." 
And farther on : " It is an easy thing to understand that 
a thing so unjust, and so contrary to all reason and 
liberty of man, cannot be put in execution but with great 
incommodity and difficulty. For what man is there so 
without courage and stomach, or void of all honour, that 
can consent or agree to receive an opinion and new reli- 
gion by force and compulsion; or will swear that he 
thinketh the contrary to what he thinketh? To be still, 
or dissemble, may be borne and suifered for a time — to 
keep his reckoning with God alone : but to be compelled 
to lie and to swear, or else to die therefore, are things 
that no man ought to suffer and endure. And it is to be 
feared rather than to die they will seek how to defend 
themselves ; whereby should ensue the contrary of what 
every good piince and well advised commonwealth ought 
to seek and pretend, that is, to keep their kingdom and 
government in peace." q 

I am never very willing to admit as an apology for 
unjust or cruel enactments, that they are not 
designed to be generally executed; a pretext i 5 62 not 
often insidious, always insecure, and tending ^L en " 
to mask the approaches of arbitrary govern- 
ment. But it is certain that Elizabeth did not wish this 
act to be enforced in its full severity. And archbishop 
Parker, by far the most prudent churchman of the time, 
judging some of the bishops too little moderate in their 
dealings with the papists, warned them privately to use 
great caution in tendering the oath of supremacy accord- 
ing to the act, and never to do so the second time, 
on which the penalty of treason might attach, without 
his previous approbation/ The temper of some of his 

1 Strype, Collier, Parliament History, tiling wherein a man ought to have a 
The original source is the manuscript scruple ; but if any hath a conscience 
collections of Fox the martyrologist, a in it, these four years' space might have 
very unsuspicious authority; so that there settled it. Also, after his first refusal, 
seems every reason to consider this speech, he haih three months' respite for confer- 
as well as Mr. Atkinson's, authentic. The ence and settling of his conscience." — 
following is a specimen of the sort of an- Strype, 270. 
swer given to these arguments: "They r Strype's Life of Parker, 125. 
say it touches conscience, and it is a 



118 APPLICATION OF THE EMPEROR FERDINAND. Chap. III. 

colleagues was more narrow and vindictive. Several of 
the deprived prelates had been detained in a sort of 
honourable custody in the palaces of their successors.* 
Bonner, the most justly obnoxious of them all, was con- 
fined in the Marshalsea. Upon the occasion of this new 
statute, Horn, bishop of Winchester, indignant at the 
impunity of such a man, proceeded to tender him the 
oath of supremacy, with an evident intention of driving 
him to high treason. Bonner, however, instead of 
evading this attack, intrepidly denied the other to be a 
lawful bishop ; and, strange as it may seem, not only 
escaped all further molestation, but had the pleasure 
of seeing his adversaries reduced to pass an act of parlia- 
ment, declaring the present bishops to have been legally 
consecrated.' This statute, and especially its preamble, 
might lead a hasty reader to suspect that the celebrated 
story of an irregular consecration of the first protestant 
bishops at the Nag's-head tavern was not wholly unde- 
serving of credit. That tale, however, has been satisfac- 
torily refuted ; the only irregularity which gave rise to 
this statute consisted in the use of an ordinal, which had 
not been legally re-established. 

It was not long after the act imposing such heavy pe- 
. ,. u nalties on catholic priests for refusing the oath 

Application „ ,. ■*. -n i • i j 

of the em- oi supremacy, that the emperor H eramand. ad- 
behaifof dressed two letters to Elizabeth, interceding for 
the English the adherents to that religion, both with respect 
catholics. ^ o t kose new severities to which they might 
become liable by conscientiously declining that oath, 
and to the prohibition of the free exercise of their rites. 
He suggested that it might be reasonable to allow them 
the use of one church in ever} r city. And he concluded 
with an expression, which might possibly be designed to 
intimate that his own conduct towards the protestants in 
his dominions would be influenced by her concurrence 
in his request." Such considerations were not without 

8 Strype's Annals, 149. Tunstall was man,) and at last was sent to Wisbeach 

treated in a very handsome manner by gaol for refusing the oath of supremacy. 

Parker, whose guest he was. But Feck- Strype, i. 457, ii. 526; Fuller's Church 

enham, abbot of Westminster, met with History, 178. 

rather unkind usage, though he had been t 8 Eliz. c. 1. Eleven peers dissented, 

active in saving the lives of protestants all noted catholics except the earl of 

under Mary, from bishops Horn and Cox, Sussex. Strype, i. 492. 

(the latter of whom seems to have been u Nobis vero factura est rem adeo 

an honest but narrow-spirited and peevish gratam, ut omnem simus daturi operam, 



E Liz.— Catholics. PROTESTANTISM IN AUSTRIA. 119 

great importance. The protestant religion was gaining 
ground in Austria, where a large proportion of the nobi- 
lity as well as citizens had for some years earnestly 
claimed its public toleration. Ferdinand, prudent and 
averse from bigoted counsels, and for every reason soli- 
citous to heal the wounds which religious diiferences 
had made in the empire, while he was endeavouring, 
not absolutely without hope of success, to obtain some 
concessions from the pope, had shown a disposition to 
grant further indulgences to his protestant subjects. His 
son Maximilian, not only through his moderate temper, 
but some real inclination towards the new doctrine, bade 
fair to carry much farther the liberal policy of the 
reigning emperor." It was consulting very little the ge- 
neral interests of protestantism, to disgust persons so 
capable and so well disposed to befriend it. But our 
queen, although free from the fanatical spirit of persecu- 
tion which actuated part of her subjects, was too deeply 
imbued with arbitrary principles to endure any public 
deviation from the mode of worship she should prescribe. 
And it must perhaps be admitted that experience alone 
could fully demonstrate the safety of toleration, and 
show the fallacy of apprehensions that unprejudiced men 
might have entertained. In her answer to Ferdinand, 
the queen declares that she cannot grant churches to 
those who disagree from her religion, being against the 
laws of her parliament, and highly dangerous to the state 
of her kingdom ; as it would sow various opinions in the 
nation to distract the minds of honest men, and would 
cherish parties and factions that might disturb the 
present tranquillity of the commonwealth. Yet enough 
had already occurred in France to lead observing men 
to suspect that severities and restrictions are by no 
means an infallible specific to prevent or subdue religious 
factions. 

quo possimus earn rem screnitati vestrae and Maximilian towards religious tolera- 

mutuis benevolentia et fraterni animi tion in Austria, which indeed for a time 

studiis cumulatissime compensare. See existed, see F. Paul, Concile de Trente 

the letter in the additions to the first (par Courayer), ii. 72, 197, 220, &c. ; 

volume of Strype's Annals, prefixed to Schmidt, Hist, des Allemands, viii. 120, 

the second, p. 67. It has been errone- 179, &c. Flechier, Vie de Commendom, 

onsly referred by Camden, whom many 388 ; or Coxe's House of Austria. [To 

have followed, to the year 1559, but bears these we may now add Eanke's excellent 

date 24th Sept. 1563. History of the Popes of the 16th and 17th 

* For the dispositions of Ferdinand centuries.] 



120 CONNIVANCE OF ROMAN CATHOLICS. Chap. III. 

Camden and many others have asserted that by- 
systematic connivance the Roman Catholics enjoyed a 
pretty free use of their religion for the first fourteen 
years of Elizabeth's reign. But this is not reconcilable 
to many passages in Strypo's collections. We find abun- 
dance of persons harassed for recusancy, that is, for not 
attending the protestant church, and driven to insincere 
promises of conformity. Others were dragged before 
ecclesiastical commissioners for harbouring priests, or 
for sending money to 'those who had fled beyond sea/ 
Students of the inns of court, where popery had a strong 
hold at this time, were examined in the star-chamber as 
to their religion, and on not giving satisfactory answers 
were committed to the Fleet. 2 The catholic party were 
not always scrupulous about the usual artifices of an op- 
pressed people, meeting force by fraud, and concealing 
their heart-felt wishes under the mask of ready submis- 
sion, or even of zealous attachment. A great majority 
both of clergy and laity yielded to the times ; and of 
these temporising conformists it cannot be doubted that 
many lost by degrees all thought of returning to their 
ancient fold. But others, while they complied with 
exterior ceremonies, retained in their private devotions 
their accustomed mode of worship. It is an admitted 
fact, that the catholics generally attended the church, till 
it came to be reckoned a distinctive sign of their having 
renounced their own religion. They persuaded them- 
selves (and the English priests, uninstructed and accus- 
tomed to a temporising conduct, did not discourage the 
notion) that the private observance of their own rites 
would excuse a formal obedience to the civil power. a The 

y Strype, 513, et alibi. auctoritatem, cum admodnm parvo aut 

z Strype, 522. He says the lawyers in plane nullo conscientiarura suarum scru- 

most eminent places were generally fa- pulo assuescerent. Frequentabaiit ergo 

vourers of popery, p. 269. But if he haereticorum synagogas, intererant eorum 

means the judges, they did not long con- concionibus, atque ad easdem etiam audi- 

tinue so. endas filios et fumiliam suam competla- 

a Cum regina Maria moreretur, et re- bant Videbatur litis ut eatholid OHBtt 

ligio in Anglift mutaret, post episcopos sufflcere una cum lia^reticis eorum templa 

et praslatos catholicos captos et fugatos, non adire, ferri autem posse si ante vel 

populus velut ovium grex sine pastore in post illos eadem intrassent. Communi- 

magnis tenebris et caligine animarum cabatur de sacrilega Calvini ccenfl, vel 

suarum oberravit. Unde etiam factum secreto et clanculum intra privatos pari- 

est multi ut catholicorum supcrstitioni- etes. Jlissam qui audiverant, ac postea 

bus impiis dissimulationibus et gravibus Calvinianos se haberi volebant, sic se de 

juramentis contra sancta? sedis apostolical pracepto satisfecisse existimabant. De- 



Eliz.— Catholics. ITINERANT PRIESTS. 121 

L'omish scheme of worship, though it attaches more im- 
portance to ceremonial rites, has one remarkable differ- 
ence from the protestant, that it is far less social ; and 
consequently the prevention of its open exercise has far 
less tendency to weaken men's religious associations, 
so long as their individual intercourse with a priest, its 
essential requisite, can be preserved. Priests therefore 
travelled the country in various disguises, to keep alive 
a flame which the practice of outward conformity was 
calculated to extinguish. There was not a county through- 
out England, says a catholic historian, where several of 
Mary's clergy did not reside, commonly called the old 
priests. They served as chaplains in private families. b 
By stealth, at the dead of night, in private chambers, in 
the secret lurking-places of an ill-peopled country, with 
all the mystery that subdues the imagination, with all 
the mutual trust that invigorates constancy, these pro- 
scribed ecclesiastics celebrated their solemn rites, more 
impressive in such concealment than if surrounded by 
all their former splendour. The strong predilection 
indeed of mankind for mystery, which has probably led 
many to tamper in political conspiracies without much 
further motive, will suffice to preserve secret associ- 
ations, even where their purposes are far less interesting 
than those of religion. Many of these itinerant priests 
assumed the character of protestant preachers ; and it has 
been said, with some truth, though not probably without 
exaggeration, that, under the directions of their crafty 
court, they fomented the division then springing up, and 
mingled with the anabaptists and other sectaries, in the 
hope both of exciting dislike to the establishment, and of 

ferebantur fil.il catholicorum ad baptis- to countenance the very unfair misrepre- 

teria haereticorum, ac inter illorum ma- sentations lately given, as if the Roman 

nus matrimonia contrahebant. Atque Catholics generally had acquiesced in the 

hajc omnia sine omni scrupulo fiebant, Anglican worship, believing it to be sub- 

facta propter catholicorum sacerdotum stantially the same as their own. They 

ignorantiam, qui talia vel licere crede- frequented our churches, because the law 

bant, vel timore quodam praspediti dissi- compelled them by penalties so to do, not 

mulabant. Nunc autem per Dei miseri- out of a notion that very little change 

cordiam omnes catholici intelligent, ut had been made by the Reformation. It 

salventur non satis esse corde fldem ca- is true, of course, that many became real 

tholicam credere, sed eandem -etiam ore protestants, by habitual attendance on 

oportere conflteri. Ribadeneira de Schis- our rites, and by disuse of their own. 

mate, p. 53. See also Butler's English But these were not the recusants of a 

Catholics, vol. iii. p. 156. [There is nothing later period. — 1845.] 

in this statementof the fact, which serves *> Dodd's Church Hist. vol. ii. p. 8. 



122 EFFECT OF PERSECUTION. Chap. III. 

instilling their own tenets, slightly disguised, into the 
minds of unwary enthusiasts. 

It is my thorough conviction that the persecution, for 
Persecution it can obtain no better name, d carried on against 
of * e . the English catholics, however it might serve to 
theensuing delude the government by producing an ap- 
period. parent conformity, could not but excite a spirit 
of disloyalty in many adherents of that faith. Nor would 
it be safe to assert that a more conciliating policy would 
have altogether disarmed their hostility, much less laid 
at rest those busy hopes of the future, which the peculiar 
circumstances of Elizabeth's reign had a tendency to 
produce. This remarkable posture of affairs affected all 
her civil, and still more her ecclesiastical policy. Her 
own title to the crown depended absolutely on a parlia- 
mentary recognition. The act of 35 H. 8, c. 1, had 
settled the crown upon her, and thus far restrained the 
previous statute, 28 H. 8, c. 7, which had empowered 
her father to regulate the succession at his pleasure. 
Besides this legislative authority, his testament had be- 
queathed the kingdom to Elizabeth after her sister Mary ; 

c Thomas Heath, brother to the late yet professed the principle of toleration." 
archbishop of York, was seized at Ro- Southey's Book of the Church, vol. ii. p. 
Chester about 1570, well provided with 285. If the second of these sentences is 
anabaptist and Arian tracts for circula- intended as a proof of the first, I must 
tion. Strype, i. 521. For other instances, say it is little to the purpose. But it is 
see pp. 281, 484; Life of Parker, 244; not true in this broad way of assertion. 
Nalson's Collections, vol. i. Introduction, Not to mention sir Thomas More's Uto- 
p. 39, &c, from a pamphlet, written also pia, the principle of toleration had been 
by Nalson, entitled Foxes and Firebrands, avowed by the chancellor l'Hospital, and 
It was surmised that one Henry Nicolas, many others in France. I mention him 
chief of a set of fanatics, called the Family as on the stronger side; for in fact the 
of Love, of whom we read a great deal in weaker had always professed the general 
this reign, and who sprouted up again principle, and could demand toleration 
about the time of Cromwell, was secretly from those of different sentiments on no 
employed by the popish party. Strype, other plea. And as to capital inflictions 
ii. 37, 589, 595. But these conjectures for heresy, which Mr. S. seems chiefly to 
were very often ill-founded, and possibly have in his mind, there is reason to be- 
so in this instance, though the passages lieve that many protestants never ap- 
quoted by Strype (589) are suspicious, proved them. Sleidan intimates, vol. iii. 
Brandt, however (Hist, of Reformation p. 263, that Calvin incurred odium by the 
in Low Countries, vol. i. p. 105), does death of Servetus. And Melanchthon 
not suspect Nicolas of being other than says expressly the same thing, in the 
a fanatic. His sect appeared in the letter which he unfortunately wrote to 
Netherlands about 1555. the reformer of Geneva, declaring his 

d " That church [of England] and the own approbation of the crime ; and which 
queen, its re-founder, are clear of perse- I am willing to ascribe rather to his con- 
dition, as regards the catholics. No stitutional fear of giving offence, than to 
church, no sect, no individual even, had sincere conviction. 



Eliz.— Catholics. UNCERTAIN SUCCESSION OF THE CROWN, 123 

and the common consent of the nation had ratified her 
possession. But the queen of Scots, niece of Henry by 
Margaret, his elder sister, had a prior right to the throne 
during Elizabeth's life, in the eyes of such catholics as 
preferred an hereditary to a parliamentary title, and was 
reckoned by the far greater part of the nation its pre- 
sumptive heir after her decease. There could indeed .be 
no question of this, had the succession been left to its 
natural course. But Henry had exercised uncertain 
the power with which his parliament, in too succession 
servile a spirit, yet in the plenitude of its crown be- 
sovereign authority, had invested him, by set- ^ en the 
tling the succession in remainder upon the Scotland 
house of Suffolk, descendants of his second andSuffolk - 
sister Mary, to whom he postponed the elder line of 
Scotland. Mary left two daughters, Frances and Ele- 
anor. The former became wife of Grey, marquis of 
Dorset, created duke of Suffolk by Edward; and had 
three daughters, — Jane, whose fate is well known, 
Catherine, and Mary. Eleanor Brandon, by her union 
with the earl of Cumberland, had a daughter, who 
married the earl of Derby. At the beginning of Eliza- 
beth's reign, or rather after the death of the duchess of 
Suffolk, lady Catherine Grey was by statute law the pre- 
sumptive heiress of the crown ; but according to the rules 
of hereditary descent, which the bulk of mankind do not 
readily permit an arbitrary and capricious enactment to 
disturb, Mary queen of Scots, grand-daughter of Mar- 
garet, was the indisputable representative of her royal 
progenitors, and the next in succession to Elizabeth. 

This reversion, indeed, after a youthful princess, might 
well appear rather an improbable contingency. Elizabetn . s 
It was to be expected that a fertile marriage unwiiimg- 
would defeat all speculations about her inherit- decide* the 
ance ; nor had Elizabeth been many weeks on succession, 
the throne, before this began to occupy her sub- 
jects' minds. 6 Among several who were named, two very 
soon became the prominent candidates for her favour, 
the archduke Charles, son of the emperor Ferdinand, 
and lord Bobert Dudley, some time after created earl 
of Leicester; one recommended by his dignity and 

e The address of the house of commons, begging the queen to marry, was on 
Feb. 6, 1559. 



124 ELIZABETH'S PASSION FOR LEICESTER. Chap. III. 

alliances, the other hy her own evident partiality. She 
gave at the outset so little encouragement to the former 
proposal, that Leicester's ambition did not appear extra- 
vagant/ But her ablest councillors, who knew his vices, 
and her greatest peers, who thought his nobility recent 
and ill acquired, deprecated so unworthy a connection^ 
Few Avill pretend to explore the labyrinths of Elizabeth's 
heart ; yet we may almost conclude that her passion for 
this favourite kept up a struggle against her wisdom for 
the first seven or eight years of her reign. Meantime 
she still continued unmarried ; and those expressions she 
had so early used, of her resolution to live and die a vir- 
gin, began to appear less like coy affectation than at first. 
Never had a sovereign's marriage been more desirable 
for a kingdom. Cecil, aware how important it was 
that the queen should marry, but dreading her union 
with Leicester, contrived, about the end of 1564, to 
renew the treaty with the archduke Charles. 11 During 
this negotiation, which lasted from two to three years, 
she showed not a little of that evasive and dissembling 
coquetry which was to be more fully displayed on sub- 
sequent occasions. 1 Leicester deemed himself so much 

f Haynes, 233. and jealous of the queen's majesty. Id. 

S See particularly two letters in the 44-t. These suggestions, and especially 

Hardwicke State I'apers, i. 122 and 163, the second, if actually laid before the 

dated in October and November, 1560, queen, show the plainness and freedom 

which show the alarm excited by the which this great statesman ventured to 

queen's ill-placed partiality. use towards her. The allusion to the 

!■ Cecil's earnestness for the Austrian death of Leicester's wife, which had 

marriage appears plainly in Haynes, 430 ; occurred in a very suspicious manner, at 

and still more in a remarkable minute, Cumnor near Oxford, and is well known 

where he has drawn up in parallel co- as the foundation of the novel of Kenil- 

lumns, according to a rather formal but worth, though related there with great 

perspicuous method he much used, his anachronism and confusion of persons, 

reasons in favour of the archduke, and may be frequently met with in contem- 

against the earl of Leicester. The for- porary documents. By the above-quoted 

mer chiefly relate to foreign politics, and letters in the Hardwicke Papers it 

may be conjectured by those acquainted appears that those who disliked Leices- 

with history. The latter are as follows : ter had spoken freely of this report to 

1. Nothing is increased by marriage of the queen. 

him, either ill riches, estimation, or i Elizabeth carried her dissimulation 

power. 2. It will be thought that the so far as to propose marriage articles, 

slanderous speeches of the queen with which were formally laid before the im- 

the earl have been true. 3. He shall perial ambassador. These, though copied 

study nothing but to enhance his own from what had been agreed on Mary's 

particular friends to wealth, to offices, to marriage with Philip, now seemed highly 

lands ; and to offend others. 4. He is ridiculous, when exacted from a younger 

infamod by death of his wife. 5. He is brother without territories or revenues, 

far in debt. 6. He is likely to be unkind, Jura et leges regnl conserventur, neque 



Eliz.— Catholics. SURMISED IMPEDIMENTS TO MARRIAGE. 125 



interested as to quarrel with those who manifested any 
zeal for the Austrian marriage ; but his mistress gra- 
dually overcame her misplaced inclinations ; and from 
the time when that connection was broken off, his pros- 
pects of becoming her husband seem rapidly to have 
vanished away. The pretext made for relinquishing 
this treaty with the archduke was Elizabeth's constant 
refusal to tolerate the exercise of his religion ; a diffi- 
culty which, whether real or ostensible, recurred in all 
her subsequent negotiations of a similar nature. k 

In every parliament of Elizabeth the house of com- 
mons was zealously attached to the protestant interest. 
This, as well as an apprehension of disturbance from a 
contested succession, led to those importunate solicita- 
tions that she would choose a husband, which she so 
artfully evaded. A determination so contrary to her 
apparent interest, and to the earnest desire of her people, 
may give some countenance to the surmises of the time, 
that she was restrained from marriage by a secret con- 
sciousness that it was unlikely to be fruitful." 1 Whe- 



quicquam mutetur in religione ant in 
statu publico. Offlcia et magislratus ex- 
erceantur per naturales. Neque regina, 
neque liberi sui educantur ex regno sine 
consensu regni, &c. Haynes, 438. 

Cecil was not too wise a man to give 
some credit to astrology. The stars were 
consulted about the queen's marriage ; 
and those veracious oracles gave response 
that she should be married in the thirty- 
first year of her age to a foreigner, and 
have one son, who would be a great 
prince, and a daughter, kc. &c. Strype, 
ii. 16, and Appendix 4, where the non- 
sense may be read at full length. Per- 
haps, however, the wily minister was no 
dupe, but meant that his mistress should 
be. [See, as to Elizabeth's intentions to 
n»arry at this time, the extracts from 
despatches of the French ambassador, in 
Kaumer, vol. ii. p. 85.] 

k The council appear in general to 
have been as resolute against tolerating 
the exercise of the catholic religion in 
any husband the queen might choose, as 
herself. We find however that several 
divines were consulted on two questions : 
1. Whether it were lawful to marry a 
papist. 2. Whether the queen might 
permit mass to be said. To which 



answers were given, not agreeing with 
each other. Strype, ii. 150 ; and Ap- 
pendix 31, 33. When the earl of Wor- 
cester was sent over to 1'aris in 1571, as 
proxy for the queen, who had been 
made sponsor for Charles JX.'s infant 
daughter, she would not permit him, 
though himself a Catholic, to be present 
at the mass on that occasion, ii. 171. 

m " The people," Camden says, " curs- 
ed Huic, the queen's physician, as having 
dissuaded the queen from marrying on 
account of some impediment and defect 
in her." Many will recollect the allu- 
sion to this in Mary's scandalous letter 
to Elizabeth, wherein, under pretence of 
repeating what the countess of Shrews- 
bury had said, she utters everything 
that female spite and ungovernable ma- 
lice could dictate. But in the long and 
confidential correspondence of Cecil, 
Walsingham, and sir Thomas Smith, 
about the queen's marriage with the 
duke of Anjou, in 1571, for which they 
were evidently most anxious, I do not 
perceive the slightest intimation that the 
prospect of her bearing children was at 
all less favourable than in any other case. 
The council seem, indeed, in the subse- 
quent treaty with the other duke of 



12G ADDRESSES BY THE COMMONS. Chap. III. 

ther these conjectures were well founded, of which I 
know no evidence ; or whether the risk of experiencing 
that ingratitude which the hushands of sovereign 
princesses have often displayed, and of which one 
glaring example was immediately before her eyes, out- 
weighed in her judgment that of remaining single ; or 
whether she might not even apprehend a more desperate 
combination of the catholic party at home and abroad if 
the birth of any issue from her should shut out their 
hopes of Mary's succession, it is difficult for us to 
decide. 

Though the queen's marriage were the primary object 
of these addresses, as the most probable means of se- 
curing an undisputed heir to the crown, yet she might 
have satisfied the parliament in some degree by limiting 
the succession to one certain line. But it seems doubtful 
whether this would have answered the proposed end. 
If she had taken a firm resolution against matrimony, 
which, unless on the supposition already hinted, could 
hardly be reconciled with a sincere regard for her 
people's welfare, it might be less dangerous to leave the 
course of events to regulate her inheritance. Though 
all parties seem to have conspired in pressing her to 
some decisive settlement on this subject, it would not 
have been easy to content the two factions, who looked 
for a successor to very different quarters." It is evident 

Anjou, in 1579, when she was forty-six, Rennet's Complete Hist, of England, 

to have reckoned on something rather vol. ii.) This, however, from Camden's 

bayond the usual laws of nature in this known proneness to flatter James, seems 

respect ; for in a minute by Cecil of the to indicate that the Suffolk party were 

reasons for and against this marriage, he more active than the Scots upon this oc- 

sets down the probability of issue on the casion. Their strength lay in the house 

favourable side. " By marrying with of commons, which was wholly protes- 

Monsieur she is likely to have children, tant, and rather puritan. 

because of his youth;" as if her age were At the end of Murden's State Papers is 

no objection. a short journal kept by Cecil, containing 

n Camden, after telling us that the a succinct and authentic summary of 

queen's disinclination to marry raised events in Elizabeth's reign. I extract as 

great clamours, and that the earls of a specimen such passages as bear on the 

Pembroke and Leicester had professed present subject. 

their opinion that she ought to be obliged "Oct. 6, 1566. Certain lewd bills 
to take a husband, or that a successor thrown abroad against the queen's ma- 
should be declared by act of parliament jesty for not assenting to have the matter 
even against her will, asserts some time of succession proved in parliament; and 
after, as inconsistently as improperly, bills also to charge sir W. Cecil the secre- 
that " very few but malecontents and tary with the occasion thereof, 
traitors appeared very solicitous in the " 27. Certain lords, viz. the earls of 
business of a successor." P. 401, (in Pembroke and Leicester, were excluded 



Eliz.— Catholics. LADY CATHEMNE GREY. 127 

that any confirmation of the Suffolk title would have 
been regarded by the queen of Scots and her numerous 
partisans as a flagrant injustice, to which they would 
not submit but by compulsion ; and on the other hand, 
by re-establishing the hereditary line, Elizabeth would 
have lost her check on one whom she had reason to con- 
sider as a rival and competitor, and whose influence was 
already alarmingly extensive among her subjects. 

She had, however, in one of the first years of her 
reign, without any better motive than her own imprison- 
jealous and malignant humour, taken a step mentof 
not only harsh and arbitrary, but very little Catherine 
consonant to policy, which had almost put it Grey - 
out of her power to defeat the queen of Scots' succes- 
sion. Lady Catherine Grey, who has been already men- 
tioned as next in remainder of the house of Suffolk, 
proved with child by a private marriage, as they both 
alleged, with the earl of Hertford. The queen, always 
envious of the happiness of lovers, and jealous of all 
who could entertain any hopes of the succession, threw 
them both into the Tower. By connivance of their 
keepers, the lady bore a second child during this im- 
prisonment. Upon this, Elizabeth caused an inquiry 
to be instituted before a commission of privy councillors 
and civilians ; wherein, the parties being unable to 
adduce proof of their marriage, archbishop Parker pro- 
nounced that their cohabitation was illegal, and that 
they should be censured for fornication. He was to be 
pitied if the law obliged him to utter so harsh a sen- 
tence, or to be blamed if it did not. Even had the 
marriage never been solemnized, it was impossible to 
doubt the existence of a contract, which both were 
still desirous to perform. But there is reason to be- 
lieve that there had been an actual marriage, though 
so hasty and clandestine that they had not taken precau- 

the presence-chamber, for furthering the the succession and for marriage. Dalton 

proposition of the succession to be de- was blamed for speaking in the commons' 

clared by parliament without the queen's house, 

allowance. "24. Command given to the parliament 

"Nov. 12. Messrs. Bell and Monson not to treat of the succession, 

moved trouble in the parliament about "Nota: in this parliament time the 

the succession. queen's majesty did remit a part of the 

" 14. The queen had before her thirty offer of a subsidy to the commons, who 

lords and thirty commoners to receive offered largely, to the end to have had 

her answer concerning their petition for the succession established." P. 762. 



128 



LADY CATHERINE GREY. 



Chap. III. 



tions to secure evidence of it. The injured lady sank 
under this hardship and indignity ; ° but the legitimacy 
of her children was acknowledged by general consent, 
and, in a distant age, by a legislative declaration. These 
proceedings excited much dissatisfaction ; generous 
minds revolted from their severity, and many lamented to 
see the reformed branch of the royal stock thus bruised 
by the queen's unkind and impolitic jealousy. 1 ' Hales, 
clerk of the hanaper, a zealous protestant, having writ- 
ten in favour of lady Catherine's marriage, and of her 
title to the succession, was sent to the Tower." 1 The lord 
keeper, Bacon himself, a known friend to the house of 
Suffolk, being suspected of having prompted Hales to 
write this treatise, lost much of his mistress's favour. 
Even Cecil, though he had taken a share in prosecuting 
lady Catherine, perhaps in some degree from an appre- 
hension that the queen might remember he had once 
joined in proclaiming her sister Jane, did not always 
escape the same suspicion ; r and it is probable that ho 



° Catherine, after her release from the 
Tower, was placed in the custody of her 
uncle lord John Grey, but still suffering 
the queen's displeasure, and separated 
from her husband. Several interesting 
letters from her and her uncle to Cecil 
are among the Lansdowne MSS., vol. vi. 
They cannot be read without indignation 
at Elizabeth's unfeeling severity. Sorrow 
killed this poor young woman the next 
year, who was never permitted to see 
her husband again. Strype, i. 391. The 
earl of Hertford underwent a long im- 
prisonment, and continued in obscurity 
during Elizabeth's reign ; but had some 
public employments under her successor. 
He was twice afterwards married, and 
lived to a very advanced age, not dying 
till 1621, near sixty years after his ill- 
starred and ambitious love. It is worth 
while to read the epitaph on his monu- 
ment in the S.E. aisle of Salisbury cathe- 
dral, an affecting testimony to the purity 
and faithfulness of an attachment ren- 
dered still more sacred by misfortune and 
time. Quo desiderio veteres revocavit 
amores ! I shall revert to the question of 
this marriage in a subsequent chapter. 

P Haynes, 396. 

1 Id. 413. Strype, 410. Hales's trea- 
tise in favour of the authenticity of 



Henry's will is among the Harlcian MSB* 
n. 537 and 555, and has also been printed 
in the Appendix to Hereditary Right 
Asserted, fol. 1713. 

r Camden, p. 416, ascribes the power- 
ful coalition formed against him in 1569, 
wherein Norfolk and Leicester were com- 
bined with all the catholic peers, to his 
predilection for the house of Suffolk. 
But it was more prolwbly owing to their 
knowledge of his integrity and attach- 
ment to his sovereign, which would 
stedfastly oppose their wicked design of 
bringing about Norfolk's marriage with 
Mary, as well as to their jealousy of his 
influence. Carte reports, on the autho- 
rity of the despatches of Fenelon, the 
French ambassador, that they intended 
to bring him to account for breaking off 
the ancient league with the house of 
Burgundy, or, in other words, for main- 
taining the protestant interest. Vol. iii. 
p. 483. 

A papist writer, under the name of 
Andreas Philopater, gives an account of 
this confederacy against Cecil at some 
length. Norfolk and Leicester belonged 
to it ; and the object was to defeat the 
Suffolk succession, which Cecil and Bacon 
favoured. Leicester betrayed his associ- 
ates to the queen. It had been intended 



Eliz.— Catholics. MARY, QUEEN OF SCOTLAND. 129 

felt the imprudence of entirely discountenancing a party 
from which the queen and religion had nothing to dread. 
There is reason to believe that the house of Suffolk was 
favoured in parliament ; the address of the commons in 
1563, imploring the queen to settle the succession, con- 
tains several indications of a spirit unfriendly to the 
Scottish line ; * and a speech is extant, said to have been 
made as late as 1571, expressly vindicating the rival 
pretension. 1 If indeed we consider with attention the 
statute of 13 Eliz. c. 1, which renders it treasonable to 
deny that the sovereigns of this kingdom, with consent 
of parliament, might alter the line of succession, it will 
appear little short of a confirmation of that title which 
the descendants of Mary Brandon derived from a par- 
liamentary settlement. But the doubtful birth of lord 
Beauchamp and his brother, as well as an ignoble mar- 
riage, which Frances, the younger sister of lady Cathe- 
rine Grey, had thought it prudent to contract, deprived 
this party of all political consequence much sooner, as I 
conceive, than the wisest of Elizabeth's advisers could 
have desired ; and gave rise to various other pretensions, 
which failed not to occupy speculative or intriguing 
tempers throughout this reign. 

We may well avoid the tedious and intricate paths of 
Scottish history, where each fact must be sus- M 
tained by a controversial discussion. Every queen of 
one will recollect that Mary Stuart's retention Scotland - 
of the arms and style of England gave the first, and, as 
it proved, inexpiable provocation to Elizabeth. It is 
indeed true that she was queen consort of France, a state 
lately at war with England, and that, if the sovereigns 
of the latter country, even in peace, would persist in 
claiming the French throne, they could hardly complain 
of this retaliation. But, although it might be difficult 
to find a diplomatic answer to this, yet every one was 
sensible of an important difference between a title re- 

that Norfolk should accuse the two coun- manitus accideret P. 43. 

cillors before the lords, efl ratione ut e • D'Ewes, 81. 

senatu regiaque abreptos ad curia; januas ' Strype, 11. Append. This speech 

in crucem agi prasciperet, eoque perfecto seems to have been made while Catherine 

recte deinceps ad forum progressus ex- Grey was living ; perhaps therefore it was 

plicarct populo turn hujus facti rationem, in a former parliament, for no account 

turn successionis etiam regtiandi legi- that I have seen represents her as having 

timam seriem, si quid forte regime hu- been alive so late as 1571. 

VOL. I. K 



130 ELIZABETH'S REVENGE. Chap. III. 

tained through vanity, and expressive of pretensions 
long since abandoned, from one that several foreign 
powers were prepared to recognise, and a great part of 
the nation might perhaps only want opportunity to sup- 
port." If, however, after the death of Francis II. had 
set the queen of Scots free from all adverse connections, 
she had with more readiness and apparent sincerity re- 
nounced a pretension which could not be made com- 
patible with Elizabeth's friendship, she might perhaps 
have escaped some of the consequences of that powerful 
neighbour's jealousy. But, whether it were that female 
weakness restrained her from unequivocally abandoning 
claims which she deemed well founded, and which future 
events might enable her to realise even in Elizabeth's 
lifetime, or whether she fancied that to drop the arms of 
England from her scutcheon would look like a derelic- 
tion of her right of succession, no satisfaction was fairly 
given on this point to the English court. Elizabeth took 
a far more effective revenge, by intriguing with all the 
malecon tents of Scotland. But while she was endea- 
vouring to render Mary's throne uncomfortable and inse- 
cure, she did not employ that influence against her in 
England, which lay more fairly in her power. She cer- 
tainly was not unfavourable to the queen of Scots' suc- 

u There was something peculiar in Unum dos Maria? cogit imperium. 

Mary's mode of blazonry. She bore Ergo pace potes, Francisce, quod onini- 

Scotland and England quarterly, the b us armis » . . 

* x.- - . **...... ^ ... Mille patres anms non potuere tui. 

former being first; but over all was a * *^ 

half-scutcheon of pretence with the arms This offensive behaviour of the French 

of England, the sinister half being as it court is the apology of Elizabeth's in- 

were obscured, in order to intimate that trigues during the same period with the 

she was kept out of her right Strype, malecontents, which to a certain extent 

vol. i. p. 8. cannot be denied by any one who has 

The despatches of Throckmorton, the read the collection above quoted ; though 

English ambassador in France, bear con- I do not think Dr. Lingard warranted in 

tinual testimony to the insulting and asserting her privity to the conspiracy of 

hostile manner in which Francis II. and Amboise as a proved fact. Throckmorton 

his queen displayed their pretensions to was a man very likely to exceed his in- 

our crown. Forbes's State Papers, vol. i. structions ; and there is much reason to 

passim. The following is an instance, believe that he did so. It is remarkable 

At the entrance of the king and queen that no modern French writers that I 

into Chatelherault, 23rd Nov. 1559, these have seen, Anquetil, Gamier, Lacretelle, 

lines formed the inscription over one of or the editors of the General Collection 

the gates : — of Memoirs, seem to have been aware of 

Gallia perpetuus pugnaxque Britannia Elizabeth's secret intrigues with the king 

bellis of Navarre and other protestant chiefs in 

Olim odio Inter se dimicuere pari. 1559, which these letters, published by 

Nunc Gallos totoque remotos orbe Bri- Forbes in 1740, demonstrate, 
tannos 



Eliz.— Catholics. MARY'S EMBARRASSMENT. 131 

cession, however she might decline compliance with 
importunate and injudicious solicitations to declare it. 
She threw both Hales and one Thornton into prison for 
writing against that title. And when Mary's secretary, 
Lethington, urged that Henry's testament, which alone 
stood in their way, should be examined, alleging that it 
had not been signed by the king, she paid no attention 
to this imprudent request." 

The circumstances wherein Mary found herself placed 
on her arrival in Scotland were sufficiently embarrass- 
ing to divert her attention from any regular scheme 
against Elizabeth, though she may sometimes have in- 
dulged visionary hopes ; nor is it probable that, with 
the most circumspect management, she could so far 
have mitigated the rancour of some, or checked the am- 
bition of others, as to find leisure for hostile intrigues. 
But her imprudent marriage with Darnley, and the far 
greater errors of her subsequent behaviour, by lowering 
both her resources and reputation as far as possible, 
seemed to be pledges of perfect security from that quar- 
ter. Yet it was precisely when Mary was become most 
feeble and helpless that Elizabeth's apprehensions grew 
most serious and well-founded. 

At the time when Mary, escaped from captivity, threw 
herself on the protection of a related, though rival queen, 
three courses lay open to Elizabeth, and were discussed 
in her councils. To restore her by force of arms, or 
rather, by a mediation which would certainly have been 
effectual, to the throne which she had compulsorily 
abdicated, was the most generous, and woxdd perhaps 
have turned out the most judicious, proceeding. Reign- 
ing thus with tarnished honour and diminished power, 
she must have continually depended on the support of 
England, and become little better than a vassal of its 
sovereign. Still it might be objected by many, that 
the queen's honour was concerned not to maintain too 

x Burnet, i. Append. 266. Many let- ever reason there might be for that, " if 

ters, both of Mary herself and of her the succession had remained untouched 

secretary, the famous Maitland of Le- according to the law, yet, where by a 

thington, occur in Haynes's State Papers, limitation men had gone about to pre- 

about the end of 1561. In one of his to vent the providence of God, and shift 

Cecil, he urges, in answer to what had one into the place due to another, the 

been alleged by the English court, that offended party could not but seek the 

a collateral successor had never been de- redress thereof." P. 373. 
clared in any prince's lifetime, that, what- 

K 2 



132 HER TITLE TO THE THRONE. Chap. III. 

decidedly the cause of one accused by common fame, 
and even by evidence that had already been made public, 
of adultery and the assassination of her husband. To 
have permitted her retreat into France would have 
shown an impartial neutrality ; and probably that court 
was too much occupied at home to have afforded her 
any material assistance. Yet this appeared rather dan- 
gerous ; and policy was supposed, as frequently happens, 
to indicate a measure absolutely repugnant to justice, 
that of detaining her in perpetual custody. y A\ hether 
this policy had no other fault than its want of justice 
may reasonably be called in question. 

The queen's determination neither to marry nor 
limit the succession had inevitably turned every one's 
thoughts towards the contingency of her death. She was 
young indeed ; but had been dangerously ill, once in 
1562, z and again in 1568. Of all possible 
tioniu competitors for the throne, Mary was incom- 
fovomof p araD iy the most powerful, both among the 
nobility and the people. Besides the undi- 
vided attachment of all who retained any longings for 
the ancient religion, and many such were to be found at 
Elizabeth's court and chapel, she had the stronghold of 
hereditary right, and the general sentiment that revolts 
from acknowledging the omnipotency of a servile parlia- 
ment. Cecil, whom no one could suspect of partiality 
towards her, admits, in a remarkable minute on the 
state of the kingdom in 1569, that "the queen of Scots' 
strength standeth by the universal opinion of the world 
for the justice of her title, as coming of the ancient line."" 
This was no doubt in some degree counteracted by 
a sense of the danger which her accession would occa- 
sion to the protestant church, and which, far more than 
its parliamentary title, kept up a sort of party for the 
house of Suffolk. The crimes imputed to her did not 

y A very remarkable letter of the earl wards became an advocate for the duke of 

of Sussex, Oct. 22, 1568, contains these Norfolk's marriage with Mary. Lodge's 

words : " I think surely no end can be Illustrations, vol. ii. p. 4. 

made good for England, except the per- * Hume and Carte say, this first illness 

son of the Scottish queen be detained, was the small- pox. But it appears by a 

by one means or other, in England." letter from the queen to lord Shrewsbury', 

The whole letter manifests the spirit of Lodge, 279, that her attack in 1571 was 

Elizabeth's advisers, and does no great suspected to be that disorder, 

credit to Sussex's sense of justice, but a Haynes, 580. 
a great deal to his ability. Yet he after- 



Eliz.— Catholics. FATE OF THE DUKE OF NORFOLK. 133 

immediately gain credit among the people ; and some of 
higher rank were too experienced politicians to turn 
aside for such considerations. She had always preserved 
her connections among the English nobility, of whom 
many were catholics, and others adverse to Cecil, by 
whose counsels the queen had been principally directed 
in all her conduct with regard to Scotland and its sove- 
reign. 1 " After the unfinished process of inquiry to 
which Mary submitted at York and Hampton Court, 
when the charge of participation in Darnley's murder 
had been substantiated by evidence at least that she did 
not disprove, and the whole course of which proceedings 
created a veiy unfavourable impression both in England 
and on the Continent, no time was to be lost by those 
who considered her as the object of their dearest hopes. 
She was in the kingdom ; she might, by a bold rescue, 
be placed at their head ; every hour's delay increased the 
danger of her being delivered up to the rebel Scots ; and 
doubtless some eager protestants had already begun to 
demand her exclusion by an absolute decision of the 
legislature. 

Elizabeth must have laid her account, if not with the 
disaffection of the catholic party, yet at least with their 
attachment to the queen of Scots. But the extensive 
combination that appeared, in 1 569, to bring about by 
force the duke of Norfolk's marriage with that princess, 
might well startle her cabinet. In this combination West- 
moreland and Northumberland, avowed catholics, Pem- 
broke and Arundel, suspected ones, were mingled with 
Sussex and even Leicester, unquestioned protestants. 
The duke of Norfolk himself, greater and richer than 
any English subject, had gone such lengths in this con- 
spiracy, that his life became the just forfeit of his guilt 
and folly. It is almost impossible to pity this unhappy , 
man, who, lured by the most criminal ambition, after 
proclaiming the queen of Scots a notorious adulteress and 

b In a conversation which Mary had better hope of this, for that she thouglrt 

with one Rooksby.a spy of Cecil's, about them to be all of the old religion, which 

the spring of 1566, she imprudently she meant to restore again with all cxpe- 

named several of her friends, and of dition, and thereby win the hearts of the 

others whom she hoped to win, such as common people." The whole passage is 

the duke of Norfolk, the earls of Derby, worth notice. Haynes, 447. See also 

Northumberland, Westmoreland, Cum- Melvil's Memoirs, for the dispositions of 

berland, Shrewsbury. " She had the an English party towards Mary in 1&66. 



134 BULL OF PIUS V. Ch.vi-. III. 

murderer, would have compassed a union with her at 
the hazard of his sovereign's crown, of the tianquillit}' 
and even independence of his country, and of the re- 
formed religion. There is abundant proof of his in- 
trigues with the duke of Alva, who had engaged to 
invade the kingdom. His trial was not indeed conducted 
in a manner that we can approve (such was the nature 
of state proceedings in that age ) ; nor can it, I think, be 
denied that it formed a precedent of constructive treason 
not easily reconcileable with the statute ; but much 
evidence is extant that his prosecutors did not adduce, 
and no one fell by a sentence more amply merited, or 
the execution of which was more indispensable.* 1 

Norfolk was the dupe throughout all this intrigue of 
more artful men : first of Murray and Lethington, who 
had filled his-mind with ambitious hopes, and afterwards 
of Italian agents employed by Pius V. to procure a com- 
bination of the catholic party. Collateral to Norfolk's 
conspiracy, but doubtless connected with it, was that of 
the northern earls of Northumberland and Westmoreland, 
long prepared, and perfectly foreseen by the government, 
of which the ostensible and manifest aim was the re-esta- 
Buiiof blishment of popery. 6 Pius V., who took a far 
Rus v. m ore active part than his predecessor in Eng- 
lish affairs, and had secretly instigated this insurrection, 
now published his celebrated bull, excommunicating and 

c Murden's State Papers, 134, 180. inviting the duke of Alva to invade the 

Norfolk was a very weak man, the dupe kingdom. There is reason to suspect 

of some very cunning ones. We may that he feigned himself a catholic in 

observe that his submission to the queen, order to secure Alva's assistance. — Mur- 

id. 153, is expressed in a style which den, p. 10. 

would now be thought most pusillani- e The northern counties were at this 

mous in a man of much lower station; time chiefly catholic. " There are not," 

yet he died with great intrepidity. But says Sadler, writing from thence, " ten 

such was the tone of those times ; an ex- gentlemen in this country who do favour 

aggerated hypocrisy prevailed in every- and allow of her majesty's proceedings in 

thing. the cause of religion." Lingard, vii. 54. 

d State Trials, i. 957. He was inter- It was consequently the great resort of 

rogated by the queen's counsel with the the priests from the Netherlands, and in 

most insidious questions. All the mate- the feeble state of the protestant church 

rial evidence was read to the lords from there wanted sufficient ministers to stand 

written depositions of witnesses who up in its defence. Strype, L 509, et post ; 

might have been called, contrary to the ii. 183. Many of the gentry indeed were 

statute of Edward VI. But the Burghley still disaffected in other parts towards the 

Papers, published by Haynes and Mur- new religion. A profession of conformity 

den, contain a mass of documents relative was required in 1569 from all justices of 

to this conspiracy, which leave no doubt the peace, which some refused, and others 

as to the most heinous charge, that of made against their consciences. Id. i. 567. 



Eliz.— Catholics. INSURRECTION IN 1570. 135 

deposing Elizabeth, in order to second the efforts of her 
rebellious subjects/ This is, perhaps, with the exception 
of that issued by Sixtus V. against Henry IV. of France, 
the latest blast of that trumpet which had thrilled the 
hearts of monarchs. Yet there was nothing in the sound 
that bespoke declining vigour; even the illegitimacy 
of Elizabeth's birth is scarcely alluded to ; and the 
pope seems to have chosen rather to tread the path of 
his predecessors, and absolve her subjects from their 
allegiance, as the just and necessary punishment of her 
heresy. 

Since nothing so much strengthens any government as 
an unsuccessful endeavour to subvert it, it may be thought 
that the complete failure of the rebellion under the earls 
of Northumberland and Westmoreland, with the detec- 
tion and punishment of the duke of Norfolk, rendered 
Elizabeth's throne more secure. But those events re- 
vealed the number of her enemies, or at least of those in 
whom no confidence could be reposed. The rebellion, 
though provided against by the ministry, and headed by 
two peers of great family but no personal weight, had 
not only assumed for a time a most formidable aspect in 
the north, but caused many to waver in other parts of 
the kingdom. 8 Even in Norfolk, an eminently protestant 
county, there was a slight insurrection in 1 570, out of 
attachment to the duke. h If her greatest subject could 
thus be led astray from his faith and loyalty, if others 
not less near to her counsels could unite with him 
in measures so contrary to her wishes and interests, on 
whom was she firmly to rely ? Who, especially, could 
be trusted, were she to be snatched away from the world, 
for the maintenance of the protestant establishment under 
a yet unknown successor ? This was the manifest and 
principal danger that her councillors had to dread. Her 
own great reputation, and the respectful attachment of 
her people, might give reason to hope that no machina- 
tions would be successful against her crown ; but let us 
reflect in what situation the kingdom would have been 
left by her death in a sudden illness such as she had 

f Camden has quoted a long passage partly adduced on the duke of Norfolks 

from Hieronymo Catena's Life of Pius trial. 

V., published at Rome in 15T8, which 8 Strype, i. 546, 553, 556. 

illustrates the evidence to the same effect h Strype, i. 578 ; Camden, 428 ; Lodge, 

contained in the Burghley Papers, and ii. 45. 



* 136 LEAGUE OF CATHOLIC PRINCES. Chap. III. 

more than once experienced in earlier year, and again in 
1571. " Yon must think," lord Burleigh writes to Wal- 
singham on that occasion, " such a matter would drive me 
to the end of my wits." And sir Thomas Smith expresses 
his fears in equally strong language.' Such statesmen do 
not entertain apprehensions lightly. Whom, in truth, 
could her privy council, on such an event, have resolved 
to proclaim ? The house of Suffolk, had its right been 
more generally recognised than it was (lady Catherine 
being now dead), presented no undoubted heir. The 
young king of Scotland, an alien and an infant, could 
only have reigned through a regency; and it might 
have been difficult to have selected from the English 
nobility a fit person to undertake that office, or at least 
one in whose elevation the rest would have acquiesced. 
It appears most probable that the numerous and powerful 
faction who had promoted Norfolk's union with Mary 
would have conspired again to remove her from her prison 
to the throne. Of such a revolution the disgrace of Cecil 
and Elizabeth's wisest ministers must have been the 
immediate consequence ; and it is probable that the 
restoration of the catholic worship would have ensued. 
These apprehensions prompted Cecil, Walsingham, and 
Smith to press the queen's marriage with the duke of 
Anjou far more earnestly than would otherwise have ap- 
peared consistent with her interest. A union with any 
member of that perfidious court was repugnant to genuine 
protestant sentiments. But the queen's absolute want of 
foreign alliances, and the secret hostility both of France 
and Spain, impressed Cecil with that deep sense of the 
perils of the time which his private letters so strongly 
bespeak. A treaty was believed to have been concluded 
in 1567, to which the two last-mentioned powers, with 
the emperor Maximilian and some other catholic princes, 
were parties, for the extirpation of the protestant reli- 
gion. 11 No alliance that the court of Charles IX. 

i Strype, ii. 88. Life of Smith, 152. before; but its object was apparently 
k Strype, i. 502. I do not give any confined to the suppression of protest- 
credit whatever to this league, as printed antism in France and the Netherlands, 
in Strype, which seems to have been Had they succeeded however in this, the 
fabricated by some of the queen's emis- next blow would have been struck at 
saries. There had been, not perhaps a England. It seems very unlikely that 
treaty, but a verbal agreement between Maximilian was concerned in such a 
France and Spain at Bayonne some time league. 



ELiz.-Catholics. STATUTES FOR QUEEN'S SECURITY. 137 

could have formed with Elizabeth was likely to have 
diverted it from pursuing this object ; and it may haVe 
been fortunate that her own insincerity saved her 
from being the dupe of those who practised it so well. 
Walsingham himself, sagacious as he was, fell into the 
snares of that den of treachery, giving credit to the 
young king's assurances almost on the very eve of St. 
Bartholomew." 1 

The bull of This V., far more injurious in its conse- 
quences to those it was designed to serve than to Eliza- 
beth, forms a leading epoch in the history of our English 
catholics. It rested upon a principle never universally 
acknowledged, and regarded with much jealousy by 
temporal governments, yet maintained in all countries by 
many whose zeal and ability rendered them formidable, 
— the right vested in the supreme pontiff to depose kings 
for heinous crimes against the church. One Felton 
affixed this bull to the gates of the bishop of London's 
palace, and suffered death for the offence. So audacious 
a manifestation of disloyalty was imputed with little jus- 
tice to the catholics at large, but might more reasonably 
lie at the door of those active instruments of Rome, the 
English refugee priests and Jesuits dispersed over Flan- 
ders, and lately established at Douay, who were continu- 
ally passing into the kingdom, not only to keep alive 
the precarious faith of the laity, but, as was generally 
surmised, to exite them against their sovereign. 11 
This produced the act of 13 Eliz. c. 2 ; which, forthe 
after reciting these mischiefs, enacts that all ^f^ 8 . 
persons publishing any bull from Eome, or ab- 
solving and reconciling any one to the Romish church, 
or being so reconciled, should incur the penalties of 
high treason ; and such as brought into the realm any 
crosses, pictures, or superstitious things consecrated by 
the pope or under his authority, should be liable to a 
praemunire. Those who should conceal or connive at the 
offenders were to be held guilty of misprision of treason. 

m Strype, vol. ii. while governor of Flanders, bur, revived 

n The college of Douay for English at Rheims in 1575, under the protection 

refugee priests was established in 1568 of the cardinal of Lorrain, and returned 

or 1569. Lingard, 374. Strype seems, to Douay in 1593. Similar colleges were 

but I believe through inadvertence, to founded at Rome in 1579, at Valladolid 

put this event several years later. Annals, in 1589, at St. Omer in 1596, and at 

ii. 630. It was dissolved by Requesens, Louvain in 1606. 



138 ACT 13 ELIZABETH, c. 2. CuAr. III. 

This statute exposed the catholic priesthood, and in 
great measure the laity, to the continual risk of martyr- 
dom ; for so many had fallen away from their faith 
through a pliant spirit of conformity with the times, that 
the regular discipline would exact their absolution and 
reconciliation before they could be reinstated in the 
church's communion. Another act of the same session, 
manifestly levelled against the partisans of Mary, and 
even against herself, makes it high treason to affirm that 
the queen ought not to enjoy the crown, but some other 
person ; or to publish that she is a heretic, schismatic, 
tyrant, infidel, or usurper of the crown ; or to claim 
right to the crown, or to usurp the same during the 
queen's life ; or to affirm that the laws and statutes do 
not bind the right of the crown, and the descent, limita- 
tion, inheritance, or governance thereof. And whosoever 
should, during the queen's life, by any book or work 
written or printed, expressly affirm, before the same 
had been established by parliament, that any one par- 
ticular person was or ought to be heir and successor 
to the queen, except the same be the natural issue of her 
body, or should print or utter any such book or writing, 
was for the first offence to be imprisoned a year, and to 
forfeit half his goods ; and for the second to incur the 
penalties of a praemunire. 

It is impossible to misunderstand the chief aim of this 
statute. But the house of commons, in which the zealous 
protestants, or, as they were now rather denominated, 
puritans, had a predominant influence, were not content 
with these demonstrations against the unfortunate cap- 
tive. Fear, as often happens, excited a sanguinary spirit 
amongst them ; they addressed the queen upon what they 
called the great cause, that is, the business of the queen 
of Scots, presenting by their committee reasons gathered 
out of the civil law to prove that " it standeth not only 
with justice, but also with the queen's majesty's honour 
and safety, to proceed criminally against the pretended 

° 13 Eliz. c, 1. This act was made at It seems to have been amended by the 

first retrospective, so as to affect every lords. So little notion had men of ob- 

one who had at any time denied the serving the first principles of equity 

queen's title. A member objected to this towards their enemies! There is much 

in debate "as a precedent most perilous." reason from the debate to suspect that 

But sir Francis Knollys, Mr. Norton, the ex post facto words were levelled at 

and others, defended it. D'Ewes, 162. Mary. * 



Eliz.— Catholics. VIOLENT MEASURES AGAINST MARY. 139 

Scottish queen." p Elizabeth, who could not really dis- 
like these symptoms of hatred towards her rival, took 
the opportunity of simulating more humanity than th 
commons ; and when they sent a hill to the upper house 
attainting Mary of treason, checked its course by pro- 
roguing the parliament. Her backwardness to concur in 
any measures for securing the kingdom, as far as in her 
lay, from those calamities which her decease might occa- 
sion, could not but displease lord Burleigh. "All that 
we laboured for," he writes to Walsingham in 1572, 
"and had with full consent brought to fashion, I mean 
a law to make the Scottish queen unable and unworthy 
of succession to the crown, was by her majesty neither 
assented to nor rejected, but deferred." Some of those 
about her, he hints, made herself her own enemy, by 
persuading her not to countenance these proceedings in 
parliament.* 1 I do not think it admits of much question 
that, at this juncture, the civil and religious institutions 
of England would have been rendered more secure by 
Mary's exclusion from the throne, which indeed, after 
all that had occurred, she could not be endured to fill 
without national dishonour. But the violent measures 
suggested against her life were hardly, under all the cir- 
cumstances of her case, to be reconciled with justice ; 
even admitting her privity to the northern rebellion and 
to the projected invasion by the duke of Alva. These, 
however, were not approved merely by an eager party in 
the commons : archbishop Parker does not scruple to 
write about her to Cecil — " If that only [one] desperate 
person were taken away, as by justice soon it might be, 
the queen's majesty's good subjects would be in better 
hope, and the papists' daily expectation vanquished."' 
And Walsingham, during his embassy at Paris, desires 
that " the queen should see how much they (the papists) 
built upon the possibility of that dangerous woman's 
coming to the crown of England, whose life was a step 
to her majesty's death ;" adding that " she was bound, for 
her own safety and that of her subjects, to add to God's 
providence her own policy, so far as might stand with 
justice." 1 

We cannot wonder to read that these new statutes 

P Strype, ii. 133. D'Ewes, 207. * Life of Parker, 354. 

1 Strype, ii. 135. » Strype's Annals, ii. 48. 



140 PROCEEDINGS OF PURITAN FACTION. Chap. III. 

increased the dissatisfaction of the Roman catholics, who 
c , .. perceived a systematic determination to extir- 
more pate their religion. Governments ought always 
treated. sly *° remember that the intimidation of a few 
disaffected persons is dearly bought by alienat- 
ing any large portion of the community.' Many retired to 
foreign countries, and, receiving for their maintenance 
pensions from the court of Spain, became unhappy in- 
struments of its ambitious enterprises. Those who re- 
mained at home could hardly think their oppression 
much mitigated by the precarious indulgences which 
Elizabeth's caprice, or rather the fluctuation of different 
parties in her councils, sometimes extended to them. 
The queen indeed, so far as we can penetrate her dissi- 
mulation, seems to have been really averse to extreme 
rigour against her catholic subjects ; and her greatest 
minister, as we shall more fully see afterwards, was 
at this time in the same sentiments. But such of her 
advisers as leaned towards the puritan faction, and too 
many of the Anglican clergy, whether puritan or not, 
thought no measure of charity or compassion should be 
extended to them. With the divines they were ido- 
laters ; with the council they were a dangerous and dis- 
affected party ; with the judges they were refractory 
transgressors of statutes ; on every side they were ob- 
noxious and oppressed. A few aged men having been 
set at liberty, Sampson, the famous puritan, himself a 
sufferer for conscience sake, wrote a letter of remon- 
strance to lord Burleigh. He urged in this that they 
should be compelled to hear sermons, though he would 
not at first oblige them to communicate." A bill having 

t Murden's Papers, p. 43, contain so. Knox's famous intolerance is well 

proofs of the increased discontent among known. 

the catholics in consequence of the penal " One mass," he declared in preaching 

laws. against Mary's private chapel at Holy- 

u Strype, ii. 330. See too, in vol. iii. rood house, " was more fearful unto him 
Appendix 68, a series of petitions in- than if ten thousand armed enemies were 
tended to be offered to the queen and landed in any part of the realm, on pur- 
parliament about 1583. These came pose to suppress the whole religion." 
from the puritanical mint, and show the M'Crie's Life of Knox, vol. ii. p. 24. In 
dread that party entertained of Mary's a conversation with Maitland he asserted 
succession, and of a relapse into popery, most explicitly the duty of putting 
It is urged in these that no toleration idolaters to death. Id. p. 120. Nothing 
should be granted to the popish worship can be more sanguinary than the re- 
in private houses. Nor, in fact, had they former's spirit in this remarkable inter- 
much cause to complain that it was view. St. Dominic could not have sur- 



Euz.— Catholics. INDULGENCE SHOWN BY ELIZABETH. 141 

been introduced in the session of 1571, imposing a 
penalty for not receiving the communion, it was objected 
that consciences ought not to be forced. But Mr. Strick- 
land entirely denied this principle, and quoted authori- 
ties against it." Even Parker, by no means tainted with 
puritan bigotry, and who had been reckoned moderate in 
his proceedings towards catholics, complained of what 
he called " a Machiavel government ;" that is, of the 
queen's lenity in not absolutely rooting them out/ 

This indulgence, however, shown by Elizabeth, the 
topic of reproach in those times, and sometimes of boast 
in our own, never extended to any positive toleration, 
nor even to any general connivance at the Eomish wor- 
ship in its most private exercise. She published a decla- 
ration in 1570, that she did not intend to sift men's con- 
sciences, provided they observed her laws by coming to 
church; which, as she well knew, the strict catholics 
deemed inconsistent with their integrity. 2 Nor did the 
government always abstain from an inquisition into 
men's private thoughts. The inns of court were more 
than once purified of popery by examining their members 
on articles of faith. Gentlemen of good families in the 
country were harassed in the same manner.* One sir 
Eichard Shelley, who had long acted as a sort of spy for 
Cecil on the Continent, and given much useful in- 
formation, requested only leave to enjoy his religion 
without hindrance ; but the queen did not accede to this 
without much reluctance and delay. b She had indeed 
assigned no other ostensible pretext for breaking off her 
own treaty of marriage with the archduke Charles, and 
subsequently with the dukes of Anjou and Alencon, than 
her determination not to suffer the mass to be celebrated 
even in her husband's private chapel. It is worthy to 
be repeatedly inculcated on the reader, since so false a 
colour has been often employed to disguise the eccle- 

passed him. It is strange to see men, may expect to find him put in a word in 

professing all the while our modern favour of silenced ministers. 

creed of charity and toleration, extol x D'Ewes, 161, 177. 

these sanguinary spirits of the sixteenth 7 Strype's Life of Parker, 354. 

century. The English puritans, though * Strype's Annals, i. 582. Honest old 

I cannot cite any passages so strong as Strype, who thinks church and state 

the foregoing, Were much the hitterest never in the wrong, calls this " a notable 

enemies of the catholics. When we read piece of favour." 

a letter from any one, such as Mr. Top- B Strype's Annals, ii. 110,408. 

cliffe, very fierce against the latter, we b Id. Hi. 127. 



142 



CASES OF EDWARDS AND EOCKWOOD. Chap. III. 



siastical tyranny of this reign, that the most clandestine 
exercise of the Komish worship was severely punished. 
Thus we read in the Life of Whitgift, that, on information 
given that some ladies and others heard mass in the 
house of one Edwards hy night, in the county of Den- 
high, he, heing then bishop of Worcester and vice-presi- 
dent of Wales, was directed to make inquiry into the 
facts ; and finally was instructed to commit Edwards to 
close prison ; and as for another person implicated, named 
Morice, "if he remained obstinate he might cause some 
kind of toi-ture to be used upon him ; and the like order 
they prayed him to use with the others." But this is 
one of many instances, the events of every day, for- 
gotten on the morrow, and of which no general historian 
takes account. Nothing but the minute and patient dili- 
gence of such a compiler as Strype, who thinks no fact 
below his regard, could have preserved this from ob- 
livion. d 



c Life of Whitgift, S3. See too p. 99 ; 
and Annals of Reformation, ii. 631, &c. ; 
also Hollingshed, ann. 1574, ad init. 

d An almost incredible specimen of 
ungracious behaviour towards a Roman 
catholic gentleman is mentioned in a 
letter of Topcliffe, a man whose daily oc- 
cupation was to hunt out and molest men 
for popery. " The next good news, but 
in account the highest, her majesty hath 
served God with great zeal and comfort- 
able examples ; for by her council two 
notorious papists, young Rockwood, the 
master of Euston-hall, where her majesty 
did lie upon Sunday now a fortnight, and 
one Downes, a gentleman, were both 
committed, the one to the town prison at 
Norwich, the other to the county prison 
there, for obstinate papistry ; and seven 
more gentlemen of worship were com- 
mitted to several houses in Norwich as 
prisoners ; two of the Lovels, another 
Downes, one Beningfield, one Parry, and 
two others not worth memory, for badness 
of belief. 

" This Rockwood is a papist of kind 
[family] newly crept out of his late ward- 
ship. Her majesty, by some means I 
know not, was lodged at his house, Euston, 
far unmeet for her highness ; neverthe- 
less, the gentleman brought into her pre. 
sence by like device, her majesty gave 
him ordinary thanks for his bad house, 



and her fair hand to kiss : but my lord 
chamberlain, nobly and gravely under- 
standing that Rockwood was excommu- 
nicated for papistry, called him before 
him, demanded of him how he durst pre- 
sume to attempt her royal presence, he, 
unfit to accompany any christian person ; 
forthwith said he was fitter for a pair of 
stocks, commanded him out of the court, 
and yet to attend her council's pleasure 
at Norwich he was committed. And to 
dissyffer [sic] the gentleman to the full, a 
piece of plate being missed in the court, 
and searched for in his hay-house, in the 
hay-rick, such an image of our lady was 
there found, as for greatness, for gayness, 
and workmanship, I did never see a 
match ; and after a sort of country dances 
ended, in her majesty's sight the idol was 
set behind the people who avoided ; she 
rather seemed a beast raised upon a 
sudden from hell by conjuring, than the 
picture for whom it had been so often 
and so long abused. Her majesty com- 
manded it to the fire, which in ber sight 
by the country folks was quickly done, to 
her content, and unspeakable joy of every 
one but some one or two who had sucked 
of the idol's poisoned milk. 

" Shortly after, a great sort of good 
preachers, who had been long commanded 
to silence for a little niceness, were 
licensed, and again commanded to preach ; 



Eliz.— Catholics. REFUGEES IN FLANDERS. 143 

It will not surprise those who have observed the effect 
of all persecution for matters of opinion upon the human 
mind, that during this period the Eomish party continued 
such in numbers and in zeal as to give the most lively 
alarm to Elizabeth's administration. One cause of this 
was beyond doubt the connivance of justices of the peace, 
a great many of whom were secretly attached to the same 
interest, though it was not easy to exclude them from the 
commission, on account of their wealth and respectability.' 
The facility with which catholic rites can be performed 
in secret, as before observed, was a still more important 
circumstance. Nor did the voluntary exiles es- fofil 
tablished in Flanders remit their diligence in in the 
filling the kingdom with emissaries. The ob- SSmSS" 
ject of many at least among them, it cannot for lu y to th e 
a moment be doubted, from the era of the bull govermnen ■ 
of Pius V., if not earlier, was nothing less than to sub- 
vert the queen's throne. They were closely united with 
the court of Spain, which had passed from the character 
of an ally and pretended friend, to that of a cold and 
jealous neighbour, and at length of an implacable adver- 
sary. Though no war had been declared between Eli- 
zabeth and Philip, neither party had scrupled to enter 
into leagues with the disaffected subjects of the other. 

a greater and more universal joy to the without any other provocation than their 

countries, and the most of the court, than recusancy, may be found in Lodge, ii. 

the disgrace of the papists : and the gen- 372,462; iii. 22. [See also Dodd's Church 

. tlemen of those parts, being great and hot History, vol. iii. passim, with the addi- 

protestants, almost before by policy dis- tional facts contributed by the last editor.] 

credited and disgraced, were greatly coun- But those farthest removed from puri- 

tenanced. tanism partook sometimes of the same 

" I was so happy lately, amongst other tyrannous spirit. Aylmer, bishop of 

good graces, that her majesty did tell me London, renowned for his persecution of 

of sundry lewd papist beasts that have nonconformists, is said by Rishton, de 

resorted to Buxton," &c Lodge, ii. 188. Schismate, p. 319, to have sent a young 

30 Aug. 1578. catholic lady to be whipped in Bridewell 

This Topcliffe was the most implacable for refusing to conform. If the authority 

persecutor of his age. In a letter to lord is suspicious (and yet I do not perceive 

Burleigh (Strype, iv. 39) he urges him to that Rishton is a liar like Sanders), the 

imprison all the principal recusants, and fact is rendered hardly improbable by 

especially women, " the farther off from Aylmer's harsh character, 
their own family and friends the better." e Strype'sLife of Smith, 171 ; Annals, 

The whole letter iscurious, as a specimen ii. 631, 636, iii. 479, and Append. 170. 

of the prevalent spirit, especially among The last reference is to a list of magis- 

the puritans, whom Topcliffe favoured, trates sent up by the bishops from each 

Instances of the ill-treatment experienced diocese, with their characters. Several 

by respectable families (ihe Fitzherberts of these, but the wives of many more, 

and Foljambes), and even aged ladies, were inclined to popery. 



144 FRESH LAWS AGAINST CATHOLIC WORSHIP. Chap. III. 

Such sworn vassals of Eome and Spain as an Allen or a 
Persons were just objects of the English government's 
distrust; it is the extension of that jealousy to the 
peaceful and loyal which we stigmatize as oppressive, 
and even as impolitic/ 

In concert with the directing powers of the Vatican 
„ and Escurial, the refugees redoubled their ex- 

againstthe ertions about the year 1580. Mary was now 
worship, wearing out her years in hopeless captivity; 
her son, though they did not lose hope of him, 
had received a strictly protestant education ; while a new 
generation had grown up in England, rather inclined to 
diverge more widely from the ancient religion than 
to suffer its restoration. Such were they who formed 
the house of commons that met in 1581, discontented 
with the severities used against the puritans, but ready 
to go beyond any measures that the court might propose 
to subdue and extirpate popery. Here an act was passed, 
which, after repeating the former provisions that had 
made it high treason to reconcile any of her majesty's 
subjects, or to be reconciled, to the church of Rome, im- 
poses a penalty of 20/. a month on all persons absenting 
themselves from church, unless they shall hear the Eng- 
lish service at home : such as could not pay the same 

f Allen"s Admonition to the Nobility swered a case of conscience, whether 
and People of England, written in 1588, catholics might take up arms to assist the 
to promote the success of the Armada, is king of Spain against the queen, in the 
full of gross lies against the queen. See negative. Id. 251. Annals, 565. This - 
an analysis of it in Lingard, note B B. man, though a known loyalist, and ac- 
Mr. Butler fully acknowledges, what in- tually in the employment of the ministry, 
deed the whole tenor of historical docu- was afterwards kept in a disagreeable 
ments for this reign confirms, that Allen sort of confinement in the dean of ^"est- 
and Persons were actively engaged in minster's house, of which he complains 
endeavouring to dethrone Elizabeth by with much reason. Birch*s Memoirs, 
means of a Spanish force. But it must, vol. ii. p. 71, et alibi. Though it does 
I think, be candidly confessed by protest- not fall within tl»e province of a writer 
ants, that they had very little influence on the constitution to enlarge on Eliza- 
over the superior catholic laity. And an beth's foreign policy, I must observe, in 
argument may be drawn from hence consequence of the laboured attempts of 
against those who conceive the political Dr. Lingard to represent it as perfectly 
conduct of catholics to be entirely swayed Machiavelian, and without any motive 
by their priests, when even in the six- but wanton malignity, that, with respect 
teenth century the efforts of these able to France and Spain, and even Scotland, 
men, united with the head of their church, it was strictly defensive, and justified by 
could produce so little effect. Strype the law of self-preservation ; though, in 
owns that Allen's book gave offence to some of the means employed, she did not 
many catholics : iii. 560. Life of Whit- always adhere more scrupulously to good 
gift, 505. One Wright of Douay an- faith than her enemies. 



Eliz.— Catholics. EXECUTION OF CAMPIAN". 145 

within three months after judgment were to be impri- 
soned until they should conform. The queen, by a 
subsequent act, had the power of seizing two thirds of 
the party's land, and all his goods, for default of pay- 
ment. 8 These grievous penalties on recusancy, as the 
wilful absence of catholics from church came now to be 
denominated, were doubtless founded on the extreme 
difficulty of proving an actual celebration of their own 
rites. But they established a persecution which fell not 
at all short in principle of that for which the inquisition 
had become so odious. Nor were the statutes merely 
designed for terror's sake, to keep a check over the dis- 
affected, as some would pretend. They were executed 
in the most sweeping and indiscriminating manner, 
unless perhaps a few families of high rank might enjoy a 
connivance. 1 * 

It had certainly been the desire of Elizabeth to abstain 
from capital punishments on the score of reli- „ . 
gion. The first instance of a priest suffering of Campian 
death by her statutes was in 1577, when one andotncre - 
Mayne was hanged at Launceston, without any charge 
against him except his religion ; and a gentleman who 
had harboured him was sentenced to imprisonment for 
life. 1 In the next year, if we may trust the zealous 
catholic writers, Thomas Sherwood, a boy of fourteen 
years, was executed for refusing to deny the temporal 
power of the pope, when urged by his judges.* But in 
1581, several seminary priests from Flanders having 
been arrested, whose projects were supposed (perhaps 
not wholly without foundation) to be very inconsistent 
with their allegiance, it was unhappily deemed neces- 
sary to hold out some more conspicuous examples of 
rigour. Of those brought to trial, the most eminent was 

B 23 Eliz. c. 1, and 29 Eliz. c. 6. * Ribadeneira, Continuatio Sanderi et 
1» Strype's Whitgift, p. 117, and other Rishtoni de Schismate Anglicano, p. 111. 
authorities, passim. Philopater, p. 247. This circumstance 
i Camden. Lingard. Two others suf- of Sherwood's age is not mentioned by 
fered at Tyburn not long afterwards for " Stowe ; nor does Dr. Lingard advert to 
the same offence. Hollingshed, 344. See it. No woman was put to death under 
in Butler's Mem. of Catholics, vol. Hi. the penal code, so far as I remember; 
p. 3S2, an affecting narrative from Dodd's which of itself distinguishes the perse- 
Church History, of the sufferings of Mr. cntion from that of Mary, and of the 
Tregian and his family, the gentleman house of Austria in Spain and the 
whose chaplain Mayne bad been. I see Netherlands, 
no cause to doubt its truth. 

VOL. I. L 



1 46 EXECUTION OF CAMPIAN. Chap. III. 

v Campian, formerly a protestant, but long known as the 
/ boast of Douay for his learning and virtues." 1 This man, 
so justly respected, was put to the rack, and revealed 
through torture the names of some catholic gentlemen 
with whom he had conversed." He appears to have 
been indicted along with several other priests, not on 
the recent statutes, but on that of 25 Edw. III., for com- 
passing and imagining the queen's death. Nothing that I 
have read affords the slightest proof of Campian's concern 
in treasonable practices, though his connections, and 
profession as a Jesuit, render it by no means unlikely. 
If we may confide in the published trial, the prosecution 
was as unfairly conducted, and supported by as slender 
evidence, as any perhaps which can be found in our 
books. But as this account, wherein Campian's lan- 
guage is full of a dignified eloquence, rather seems to have 
been compiled by a partial hand, its faithfulness may 
not be above suspicion. For the same reason I hesitate 
to admit his alleged declarations at the place of execu- 
tion, where, as well as at his trial, he is represented to 
have expressly acknowledged Elizabeth, and to have 
prayed for her as his queen de facto and de jure. For this 
was one of the questions propounded to him before his 
trial, which he refused to answer, in such a manner as 
betrayed his way of thinking. Most of those interro- 
gated at the same time, on being pressed whether the 
queen was their lawful sovereign, whom they were 
bound to obey, notwithstanding any sentence of depriva- 
tion that the pope might pronounce, endeavoured, like 
Campian, to evade the snare. A few, who unequivocally 
disclaimed the deposing power of the Eoman see, were 
pardoned." It is more honourable to Campian's memory 

m Strype's Parker, 375. •' Elizabeth to be queen de jure, but rather 

n Strype's Annals, ii. 644. that he refused to give an opinion as to 

° State Trials, i. 1050 ; from the Phoenix her right He prayed however for her 

Britannicus. as a queen. " Io ho pregato, e prego 

P State Trials,!. 1078. Butler's English per lei. All' ora il Signor Howardo li 

Catholics, i. 184,244. Lingard, vii. 182; domandb per qual regina egli pregasse, 

whose remarks are just and candid. A se per Elisabetta ? Al quale rispose, Si, 

tract, of which I have only seen an Italian per Elisabetta." Mr. Butler quotes this 

translation, printed at Macerata in 1585, tract in English. 

entitled Historia del glorioso martirio di The trials and deaths of Campian and 

diciotto sacerdoti e un secolare, fatti hi3 associates are told in the continuation 

morire in Inghilterra per la confessione of Hollingshed with a savageness and 

e difensione della fede cattolica, by no bigotry which, I am very sure, no scribe 

means asserts that he acknowledged for the Inquisition could have surpassed. 



Eliz.— Catholics. EXPLANATION OF BULL OF PIUS V. 147 

that we should reject these pretended declarations than 
imagine him to have made them at the expense of his 
consistency and integrity. For the pope's right to de- 
prive kings of their crowns was in that age the common 
creed of the Jesuits, to whose order Campian belonged ; 
and the Continent was full of writings published by the 
English exiles, by Sanders, Bristow, Persons, and Allen, 
against Elizabeth's unlawful usurpation of the throne. 
But many availed themselves of what was called an 
explanation of the bull of Pius V., given by his suc- 
cessor Gregory XIII., namely, that the bull should be 
considered as always in force against Elizabeth and the 
heretics, but should only be binding on catholics when 
due execution of it could be had. q This was designed 
to satisfy the consciences of some papists in submitting 
to her government, and taking the oath of allegiance. 
But in thus granting a permission to dissemble, in hope* 
of better opportunity for revolt, this interpretation was 
not likely to tranquillize her council, or conciliate them 
towards the Bomish party. The distinction, however, 

— p. 456. But it is plain, even from this juramenti obligatione, quod ei de obe- 

account, that Campian owned Elizabeth dientift tanquam principi legitimo prae- 

as queen. See particularly p. 448, for stitissent; posseque et debere (si vires 

the insulting manner in which this writer habeant) istiusmodi hominem, tanquam 

describes the pious fortitude of these apostatam, hajreticum, ac Christi domini 

butchered ecclesiastics. desertorem, et inimicum reipublicaj sua?, 

1 Strype, ii. 63T. Butler's Eng. hostemque ex hominum christianorum 

Catholics, i. 196. The earl of South- dominatu ejicere, ne alios inflciat, vel suo 

ampton asked Mary's ambassador, bishop exemplo aut imperio a fide avertat" — 

Lesley, whether, after the bull, he could p. 149. He quotes four authorities for 

in conscience obey Elizabeth. Lesley this iu the margin, from the works of 

answered, that as long as she was the divines or canonists, 
stronger he ought to obey her. Murden, This broad duty, however, of expelling 

p. 30. The writer quoted before by the a heretic sovereign, he qualifies by two 

name of Andreas Philopater (Persons, conditions; first, that the subjects should 

translated by Cresswell, according to Mr. have the power, " ut vires habeant idoneas 

Butler, vol. iii. p. 236), after justifying ad hoc subditi;" secondly, that the heresy 

at length the resistance of the League to be undeniable. There can, m truth, be 

Henry IV., adds the following remark- no doubt that the allegiance professed to 

able paragraph : " Hinc etiam infert the queen by the seminary priests and 

universa theologorum et jurisconsultorum Jesuits, and, as far as their influence ex- 

schola, et est certum et de fide, quern- tended, by all catholics, was with this 

cunque principem christianum, si a re- reservation — till they should be strong 

ligione catholic& manifest* deflexerit, et enough to throw it off. See the same 

alios avocare voluerit, excidere statim tract, p. 229. But, after all, when we 

omni potestate et dignitate, ex ipsa vi come fairly to consider it, is not this the 

juris turn divini turn humani, hocque case with every disaffected party in every 

ante omnem sententiam supremi pastoris state ? a good reason for watchfulness, but 

ac judicis contra ipsum prolatam ; et sub- none for extermination, 
ditos quoscunque liberos esse ab omni 

L 2 



148 USE OF TORTURE. Chap. III. 

between a king by possession and one by rigbt was 
neither heard for the first nor for the last time in the 
reign of Elizabeth. It is the lot of every government 
that is not founded on the popular opinion of legitimacy 
to receive only a precarious allegiance. Subject to this 
reseivation, which was pretty generally known, it does 
not appear that the priests or other Roman catholics, 
examined at various times during this reign, are more 
chargeable with insincerity or dissimulation than accused 
persons generally are. f 

The public executions, numerous as they were, scarcely 
form the most odious part of this persecution. The 
common law of England has always abhorred the ac- 
cursed mysteries of a prison-house, and neither admits 
of torture to extort confession, nor of any penal infliction 
not warranted by a judicial' sentence. But this law, 
though still sacred in the courts of justice, was set aside 
by the privy council under the Tudor line. The rack 
seldom stood idle in the Tower for all the latter part of 
Elizabeth's reign/ To those who remember the annals 
of their country, that dark and gloomy pile affords asso- 
ciations not quite so numerous and recent as»the Bastile 
once did, yet enough to excite our hatred and horror. 
But standing as it does in such striking contrast to the 
fresh and flourishing constructions of modern wealth, 
the proofs and the rewards of civil and religious liberty, 
it seems like a captive tyrant, reserved to grace the 
triumph of a victorious republic, and should teach us to 
reflect in thankfulness how highly we have been elevated 
in virtue and happiness above our forefathers. 

Such excessive severities under the pretext of treason, 
but sustained by very little evidence of any other offence 
than the exercise of the catholic ministry, excited indig- 
nation throughout a great part of Europe. The queen 
was held forth in pamphlets, dispersed everywhere from 

r Rishton and Ribadeneira. Sec in Lin- of the council, wrote, about 1585, a ve- 

gard, note ,TJ, a specification of the differ- hement book against the ecclesiastical 

ent kinds of torture used in this reign. system, from which Whitgift picks out 

The government did not pretend to various enormous propositions, as he 

deny the employment of torture. But thinks them ; one of which is, " that he 

the puritans, eager as they were to exert condemns, without exception of nnycause, 

the utmost severity of the law against racking of grievous offenders, as being 

the professors of the old religion, had cruel, barbarous, contrary to law, and 

more regard to civil liberty than to ap- unto the liberty of English subjects." 

prove such a violation of it. Beal, clerk Strype's Whitgift, p. 212. 



Eliz.— Catholics. DEFENCE OF THE QUEEN. 



149 



Eome and Douay, not only as a usurper and heretic, but 
a tyrant more ferocious than any heathen persecutor, for 
inadequate parallels to whom they ransacked all former 
history. 9 These exaggerations, coming from the very 
precincts of the Inquisition, required the unblushing 
forehead of bigotry ; but the charge of cruelty stood on 
too many facts to be passed over, and it was thought 
expedient to repel it by two remarkable pamphlets, both 
ascribed to the pen of lord Burleigh. One of these, en- 
titled ' The Execution of Justice in England 
for Maintenance of public and private Peace,' the queen, 
appears to have been published in 1583. It ^^ ur " 
contains an elaborate justification of the late 
prosecutions for treason, as no way connected with reli- 
gious tenets, but grounded on the ancient laws for pro- 
tection of the queen's person and government from con- 
spiracy. It is alleged that a vast number of catholics, 
whether of the laity or priesthood, among whom the 
deprived bishops are particularly enumerated, had lived 
unmolested on the score of their faith, because they paid 



8 The persecution of catholics in 
England was made use of as an argu- 
ment against permitting Henry IV. to 
reign in France, as appears by the title 
of a tract published in 1586 : Avertisse- 
ment des catholiques Anglois aux Fran- 
cois catholiques, du danger oil ils sont 
de perdreleur religion, etd' experimenter, 
comme en Angleterre, la cruattte" des 
ministres, s'ils recoivent & la couronne 
un roy qui soit he're'tique. It is in the 
British Museum. 

One of the attacks on Elizabeth de- 
serves some notice, as it has lately been 
revived. In the statute 13 Eliz. an ex- 
pression is used, " her majesty, and the 
natural issue of her body," instead of the 
more common legal phrase, " lawful 
issue." This probably was adopted by 
the queen out of prudery, as if the usual 
term implied the possibility of her having 
unlawful issue. But the papistical libel- 
lers, followed by an absurd advocate of 
Mary in later times, put the most absurd 
interpretation on the word " natural," as 
if it were meant to secure the succession 
for some imaginary bastards by Leicester. 
And Dr. Lingard is not ashamed to in- 
sinuate the same suspicion, vol. viii. 



p. 81, note. Surely what was congenial 
to the dark malignity of Persons, and 
the blind frenzy of Whitaker, does not 
become the good sense, I cannot say the 
candour, of this writer. 

It is true that some, not prejudiced 
against Elizabeth, have doubted whether 
" Cupid's fiery dart " was as effectually 
"quenched in the chaste beams of the 
watery moon" as her poet intimates. 
This I must leave to the reader's judg- 
ment She certainly went strange lengths 
of indelicacy. But, if she might sacrifice 
herself to the queen of Cnidus and Paphos, 
she was unmercifully severe to those 
about her, of both sexes, who showed 
any inclination to that worship, though 
under the escort of Hymen. Miss Aikin, 
in her well-written and interesting Me- 
moirs of the Court of Elizabeth, has col- 
lected several instances from Harrington 
and Birch. It is by no means true, as 
Dr. Lingard asserts, on the authority of 
one Faunt, an austere puritan, that her 
court was dissolute, comparatively at 
least with the general character of 
courts ; though neither was it so virtuous 
as the enthusiasts of the Elizabethan 
period suppose. 



150 LORD BURLEIGH. Chap. III. 

due temporal allegiance to their sovereign. Nor were 
any indicted for treason but such as obstinately main- 
tained the pope's bull depriving the queen of her crown. 
And even of these offenders, as many as after condemna- 
tion would renounce their traitorous principles had been 
permitted to live ; such was her majesty's unwillingness, 
it is asserted, to have any blood spilled without this just 
and urgent cause proceeding from themselves. But that 
any matter of opinion not proved to have ripened into 
an overt act, and extorted only, or rather conjectured, 
through a compulsive inquiry, could sustain in law or 
justice a conviction for high treason, is what the author 
of this pamphlet has not rendered manifest.' 

A second and much shorter paper bears for title, ' A 
Declaration of the favourable dealing of her Majesty's 
Commissioners appointed for the examination of certain 
traitors, and of tortures unjustly reported to be done 
upon them for matter of religion.' Its scope was to 
palliate the imputation of excessive cruelty with which 
Europe was then resounding. Those who revere the 
memory of lord Burleigh must blush for this pitiful 
apology. "It is affirmed for truth," he says, "that the 
forms of torture in their severity or rigour of execution 
have not been such and in such manner performed as 
the slanderers and seditious libellers have published. 
And that even the principal offender, Campian himself, 
who was sent and came from Borne, and continued here 
in sundry corners of the realm, having secretly wandered 
in the greater part of the shires of England in a dis- 
guised suit, to the intent to make special preparation of 
treasons, was never so racked but that he was perfectly 
able to walk and to write, and did presently write and 
subscribe all his confessions. The queen's servants, the 
warders, whose office and act it is to handle the rack, 
were ever by those that attended the examinations spe- 
cially charged to use it in so charitable a manner as such 
a thing might be. None of those who were at any time 

' Somers Tracts, i. 189. Strype, iii. his right hand. An Italian translation 

205, 265, 480. Strype says that he had of the Execution of Justice was published 

seen the manuscript of this tract in lord at London in 1584. This shows how 

Burleigh's handwriting. It was answered anxious the queen was to repel the 

by cardinal Allen, to whom a reply was charges of cruelty, which she must have 

made by poor Stubbe after he had lost felt to be not wholly unfounded. 



Eliz.— Catholics. OATH OF SUPREMACY. 151 

put to the rack," he proceeds to assert, "were asked, 
during their torture, any question as to points of doc- 
trine, but merely concerning their plots and conspiracies, 
and the persons with whom they had had dealings, and 
what was their own opinion as to the pope's right to 
deprive the queen of her crown. Nor was any one so 
racked until it was rendered evidently probable, by 
former detections or confessions, that he was guilty ; nor 
was the torture ever employed to wring out confessions 
at random; nor unless the party had first refused to 
declare the truth at the queen's commandment." Such 
miserable excuses serve only to mingle contempt with 
our detestation." But it is due to Elizabeth to observe 
that she ordered the torture to be disused ; and upon a 
subsequent occasion, the quartering of some concerned 
in Babington's conspiracy having been executed with 
unusual cruelty, gave directions that the rest should not 
be taken down from the gallows until they were dead." 

I should be reluctant, but for the consent of several 
authorities, to ascribe this little tract to lord Burleigh 
for his honour's sake. But we may quote with more 
satisfaction a memorial addressed by him to the queen 
about the same year, 1583, full not only of sagacious, 
but just and tolerant advice. " Considering," he says, 
"that the urging of the oath of supremacy must needs, 
in some degree, beget despair, since, in the taking of it, 
he [the papist] must either think he doth an unlawful 
act, as without the special grace of God he cannot think 
otherwise, or else, by refusing it, must become a traitor, 
which before some hurt done seemeth hard ; I humbly 
submit this to your excellent consideration, whether, 
with as much security of your majesty's person and state, 
and more satisfaction for them, it were not better to 
leave the oath to this sense, that whosoever would not 
bear arms against all foreign princes, and namely the 
pope, that should any way invade your majesty's domi- 
nions, he should be a traitor. For hereof this commo- 
dity will ensue, that those papists, as I think most 
papists would, that should take this oath, would be 
divided from the great mutual confidence which is now 
between the pope and them, by reason of their afflictions 

u Somers Tracts, p. 209. x State Trials, i. 1160. 



152 MEANS FOR KEEPING DOWN POPERY. Chap. III. 

for him; and such priests as would refuse that oath, 
then no tongue could say for shahie that they suffer for 
religion, if they did suffer. 

" But here it may he objected, they would dissemble 
and equivocate with this oath, and that the pope would 
dispense with them in that case. Even so may they with 
the present oath both dissemble and equivocate, and also 
have the pope's dispensation for the present oath as well 
as for the other. But this is certain, that whomsoever 
the conscience, or fear of breaking an oath, doth bind, 
him would that oath bind. And that they make con- 
science of an oath, the trouble, losses, and disgraces 
that they suffer for refusing the same do sufficiently 
testify ; and you know that the perjury of either oath is 
equal." 

These sentiments are not such as bigoted theologians 
were then, or have been since, accustomed to entertain. 
" I account," he says afterwards, "that putting to death 
does no ways lessen them ; since we find by experience 
that it worketh no such effect, but, like hydra's heads, 
upon cutting off one, seven grow up, persecution being 
accounted as the badge of the church : and therefore 
they should never have the honour to take any pretence 
of martyrdom in England, where the fulness of blood 
and greatness of heart is such that they will even for 
shameful things go bravely to death, much more when 
they think themselves to climb heaven ; and this vice 
of obstinacy seems to the common people a divine con- 
stancy ; so that for my part I wish no lessening of their 
number but by preaching and by education of the 
younger under schoolmasters." And hence the means 
he recommends for keeping down popery, after the 
encouragement of diligent preachers and schoolmasters, 
are, " the taking order that, from the highest coun- 
sellor to the lowest constable, none shall have any 
charge or office but such as will really pray and com- 
municate in their congregation according to the doctrine 
received generally into this realm ; " and next the pro- 
tection of tenants against their popish landlords, " that 
they be not put out of their living for embracing the 
established religion." " This," he says, "would greatly 
bind the commons' hearts unto you, in whom indeed 
consisteth the power and strength of your realm ; and 



Eliz.— Catholics. INCREASED SEVERITY. 153 

it will make them less, or nothing at all, depend on 
their landlords. Andj although there may hereby grow 
some wrong, which the tenants upon that confidence may 
offer to their landlords, yet those wrongs are very easily, 
even with one wink of your majesty's, redressed ; and 
are nothing comparable to the danger of having many 
thousands depending on the adverse party." y 

The strictness used with recusants, which much in- 
creased from 1579 or 1580, had the usual con- 
sequence of persecution, that of multiplying J£J£J^ d f 
hypocrites. For, in fact, if men will once bring *e govem- 
themselveg to comply, to take all oaths, to prac- 
tise all conformity, to oppose simulation and dissimula- 
tion to arbitrary inquiries, it is hardly possible that any 
government should' not be baffled. Fraud becomes an 
over-match for power. The real danger meanwhile, the 
internal disaffection, remains as before or is aggravated. 
The laws enacted against popery were precisely calcu- 
lated to produce this result. Many indeed, especially of 
the female sex, whose religion, lying commonly more in 
sentiment than reason, is less ductile to the sophisms of 
worldly wisdom, stood out and endured the penalties. 
But the oath of supremacy was not refused, the worship 
of the church was frequented by multitudes who secretly 
repined for a change ; and the council, whose fear of 
open enmity had prompted their first severities, were led 
on by the fear of dissembled resentment to devise yet 
further measures of the same kind. Hence, in 1584 a 
law was enacted, enjoining all Jesuits, seminary priests, 
and other priests, whether ordained within or without 
the kingdom, to depart from it within forty days, on 
pain of being adjudged traitors. The penalty of fine and 
imprisonment at the queen's pleasure was inflicted on 
such as, knowing any priest to be within the realm, 
should not discover it to a magistrate. This seemed to 
fill up the measure of persecution, and to render the 
longer preservation of this obnoxious religion absolutely 
impracticable. Some of its adherents presented a pe- 
tition against this bill, praying that they might not be 
suspected of disloyalty on account of refraining from the 
public worship, which they did to avoid sin ; and that 

y Somers Tracts. 164. 



154 CONSPIRACIES AGAINST ELIZABETH. Chap. III. 

their priests might not be banished from the kingdom/ 
And they all very justly complained of this determined 
oppression. The queen, without any fault of theirs, they 
alleged, had been alienated by the artifices of Leicester 
and Walsingham. Snares were laid to involve them un- 
awares in the guilt of treason ; their steps were watched 
by spies ; and it was become intolerable to continue in 
England. Camden indeed asserts that counterfeit lettei-s 
were privately sent in the name of the queen of Scots or 
of the exiles, and left in papists' houses. 11 A general in- 
quisition seems to have been made about this time ; but 
whether it was founded on sufficient grounds of previous 
suspicion we cannot absolutely determine. The earl of 
Northumberland, brother of him who had been executed 
for the rebellion of 1570, and the earl of Ai'undel, son of 
the unfortunate duke of Norfolk, were committed to the 
Tower, where the former put an end to his own life (for 
we cannot charge the government with an unproved 
murder) ; and the second, after being condemned for a 
traitorous correspondence with the queen's enemies, died 
in that custody. But whether or no some conspiracies 
(I mean more active than usual, for there was one per- 
petual conspiracy of Eome and Spain during most of the 
queen's reign) had preceded these severe and unfair 
methods by which her ministry counteracted them, it 
was not long before schemes more formidable than ever 
were put in action against her life. As the whole body 
of catholics was irritated and alarmed by the laws of pro- 
scription against their clergy, and by the heavy penalties 
on recusancy, which, as they alleged, showed a manifest 
purpose to reduce them to poverty ; b so some desperate 

z Strype, iii. 298. Shelley, though afterwards to the same religion ; so that 

notoriously loyal, and frequently em- his veracity may be dubious. So, a little 

ployed by Burleigh, was taken up and further on, we find in the same collection, 

examined before the council for preparing p. 250, a letter from one Bennet, a priest, 

this petition. to lord Arundel, lamenting the false ac- 

a P. 591. Proofs of the text are too cusations he had given in against him, 

numerous for quotation, and occur cou- and craving pardon. It is always pos- 

tinually to a reader of Strype's 2nd and sible, as I have just hinted, that these 

3rd volumes. In vol. iii. Append. 158, retractations may be more false than the 

we have a letter to the queen from one charges. But ministers who employ 

Antony Tyrrel, a priest, who seems to spies, without the utmost distrust of 

have acted as an informer, wherein he their information, are sure to become 

declares all his accusations of catholics their dupes, and end by the most violent 

to be false. This man had formerly pro- injustice and tyranny, 
fessed himself a protestant, and returned b The rich catholics compounded for 



Eliz.— Catholics. SOMERVILLE AND PARRY. 



155 



men saw no surer means to rescue their cause than the 
queen's assassination. One Somerville, half a lunatic, 
and Parry, a man who, long employed as a spy upon the 
papists, had learned to serve with sincerity those he was 
sent to betray, were the first who suffered death for un- 
connected plots against Elizabeth's life. More deep-laid 
machinations were carried on by several catholic laymen 
at home and abroad, among whom a brother of lord Paget 
was the most prominent.* 1 These had in view two ob- 



their recusancy by annual payments, 
which were of some consideration in the 
queen's rather scanty revenue. A list of 
such recusants, and of the annual fines 
paid by them in 1594, is published in 
Strype, iv. 197 ; but is plainly very im- 
perfect. The total was 3323J. is. lOd. 
A few paid as much as 140J. per annum. 
The average seems however to have been 
about 201. Vol. iii. Append. 153 ; see 
also p. 258. Probably these compositions, 
though oppressive, were not quite so 
serious as the catholics pretended. 

c Parry seems to have been privately 
reconciled to the church of Rome about 
1580 ; after which he continued to cor- 
respond with Cecil, but generally recom- 
mending some catholics to mercy. He 
says, in one letter, that a book printed at 
Rome, De Persecutione Anglicana, had 
raised a barbarous opinion of our cruelty; 
and that he could wish that in those cases 
it might please her majesty to pardon the 
dismembering and drawing. Strype, iii. 
260. He sat afterwards in the parliament 
of 1584, taking of course the oath of su- 
premacy, where he alone opposed the act 
against catholic priests. Pari. Hist. 822. 
Whether he were actually guilty of plot- 
ting against the queen's life (for this part 
of his treason he denied at the scaffold), 
I cannot say ; but his speech there made 
contained some very good advice to her. 
The ministry garbled this before its pub- 
lication in Hollingshed and other books ; 
but Strype has preserved a genuine copy ; 
vol. iii. Append. 102. It is plain that 
Parry died a catholic ; though some late 
writers of that communion have tried to 
disclaim him. Dr. Lingard, it may be 
added, admits that there were many 
schemes to assassinate Elizabeth, though 
he will not confess any particular in- 
stance. " There exist," he says, " in the 



archives at Simancas several notices of 
such offers." P. 384. 

d It might be inferred from some au- 
thorities that the catholics had become 
in a great degree disaffected to the queen 
about 1584, in consequence of the ex- 
treme rigour practised against them. In 
a memoir of one Crichton, a Scots Jesuit, 
intended to show the easiness of invading 
England, he says that " all the catholics 
without exception favour the enterprise ; 
first, for the sake of the restitution of the 
catholic faith; secondly, for the right and 
interest which the queen of Scots has to 
the kingdom, and to deliver her out of 
prison ; thirdly, for the great trouble and 
misery they endured more and more, 
being kept out of all employments, and 
dishonoured in their own countries, and 
treated with great injustice and partiality 
when they have need to recur to law ; 
and also for the execution of the laws 
touching the confiscation of their goods 
in such sort as in so short time would 
reduce the catholics to extreme poverty." 
Strype, iii. 415. And in the report of 
the earl of Northumberland's treasons, 
laid before the star-chamber, we read that 
" Throckmorton said that the bottom of 
this enterprise, which was not to be 
known to many, was, that if a toleration 
of religion might not be obtained without 
alteration of the government, that then 
the government should be altered, and 
the queen removed." Somers Tracts, 
vol. i. p. 206. Further proofs that the 
rigour used towards the catholics was the 
great means of promoting Philip's de- 
signs, occur in Birch's Memoirs of Eliza- 
beth, i. 82, et alibi. 

We have also a letter from Persons in 
England to Allen in 1586, giving a good 
account of the zeal of the catholics, though 
a very bad one of their condition through 



156 PROTESTANT HATRED OF MARY. Chap. III. 

jects, the deliverance of Mary and the death of her 
enemy. Some perhaps who were engaged in the former 
project did not give countenance to the latter. But few, 
if any, ministers have been better served by their spies 
than Cecil and Walsingham. It is surprising to see how 
every letter seems to have been intercepted, every thread 
of these conspiracies unravelled, every secret revealed 
to these wise councillors of the queen. They saw that, 
while one lived whom so many deemed the presumptive 
heir, and from whose succession they anticipated, at 
least in possibility, an entire reversal of all that had 
been wrought for thirty years, the queen was as a mark 
for the pistol or dagger of every zealot. And fortunate, 
no question, they thought it, that the detection of Ba- 
bington's conspiracy enabled them with truth, or a sem- 
blance of truth, to impute a participation in that crime 
to the most dangerous enemy whom, for their mistress, 
their religion, or themselves, they had to apprehend. 
Mary had now consumed the best years of her life in 
custody, and, though still the perpetual object 
ary ' of the queen's vigilance, had perhaps gradually 
become somewhat less formidable to the protestant in- 
terest. Whether she would have ascended the throne if 
Elizabeth had died during the latter years of her impri- 
sonment must appear very doubtful when we consider 
the increasing strength of the puritans, the antipathy of 
the nation to Spain, the prevailing opinion of her consent 
to Darnley's murder, and the obvious expedient of treat- 
ing her son, now advancing to manhood, as the represen- 
tative of her claim. The new projects imputed to her 
friends, even against the queen's life, exasperated the 
hatred of the protestants against Maiy. An association 
was formed in 1584, the members of which bound them- 

severe imprisonment and other ill-treat- However, if any of my readers should 
ment Strype, iii. 412, and Append. 151. incline to suspect that there was more 
Rishton and Ribadeneira bear testimony disposition among this part of the com- 
that the persecution had rendered the munity to throw off their allegiance to 
laity more zealous and sincere. DeSchis- ,the queen altogether than I have ad- 
mate, 1, iii. 320, and 1, iv. 53. mitted, he may possibly be in the right ; 
Yet to all this we may oppose their and I shall not impugn his opinion, pro- 
good conduct in the year of the Spanish vided he concurs in attributing the whole, 
Armada, and in general during the queen's or nearly the whole, of this disaffection 
reign ; which proves that the loyalty of to her unjust aggressions on the liberty 
the main body was more firm than their of conscience, 
leaders wished, or their enemies believed. 



Eliz.— Catholics. VOLUNTARY ASSOCIATION OF 1584. 157 

selves by oath " to withstand and pursue, as well by 
force of arms as by all other means of revenge, all man- 
ner of persons, of whatsoever state they shall be, and 
their abettors, that shall attempt any act, or counsel or 
consent to anything, that shall tend to the harm of her 
majesty's royal person ; and never to desist from all 
manner of forcible pursuit against such persons, to the 
utter extermination of them, their counsellors, aiders, 
and abettors. And if any such wicked attempt against 
her most royal person shall be taken in hand or procured, 
whereby any that have, may, or shall pretend title to 
come to this crown by the untimely death of her majesty 
so wickedly procured (which God of his mercy forbid !), 
that the same may be avenged, we do not only bind our- 
selves both jointly and severally never to allow, accept, 
or favour any such pretended successor, by whom or for 
whom any such detestable act shall be attempted or 
committed, as unworthy of all government in any Chris- 
tian realm or civil state, but do also further vow and 
promise, as we are most bound, and that in the presence 
of the eternal and everlasting God, to prosecute such person 
or persons to death with our joint and particular forces, and 
to act the utmost revenge upon them that by any means 
we or any of us can devise and do, or cause to be devised 
and done, for their titter overthrow and extirpation." ° 

The pledge given by this voluntary association received 
the sanction of parliament in an act " for the security 
of the queen's person and continuance of the realm in 
peace." This statute enacts, that if any invasion or 
rebellion should be made by or for any person pretend- 
ing title to the crown after her majesty's decease, or if 
anything be confessed or imagined tending to the hurt 
of her person,*with the privity of any such person, a" 
number* of peers, privy councillors, and judges, to be 
commissioned by the queen, should examine and give 
judgment on such offences, and all circumstances relating 
thereto ; after which judgment all persons against whom 
it should be published should be disabled for ever to 
make any such claim/ I omit some further provisions to 
the same effect for the sake of brevity. But we may 
remark that this statute differs from the associators' en- 

• State Trials, i. 1162. f 27 Eliz. c. i. 



158 EXECUTION OF MARY. Chap. HI. 

gagement in omitting the outrageous threat of pursuing 
to death any person, whether privy or not to the design, 
on whose behalf an attempt against the queen's life should 
be made. The main intention of the statute was to pro- 
cure, in the event of any rebellious movements, what the 
queen's councillors had long ardently desired to obtain 
from her, an absolute exclusion of Mary from the suc- 
cession. But if the scheme of assassination devised by 
some of her desperate partisans had taken effect, how- 
ever questionable might be her concern in it, I have 
little doubt that the rage of the nation would, with or 
without some process of law, have instantly avenged it 
in her blood. This was, in the language of parliament, 
their great cause ; an expression which, though it may 
have an ultimate reference to the general interest of 
religion, is never applied, so far as I remember, but to 
the punishment of Mary, which they had demanded in 
1572, and now clamoured for in 1586. The addresses 
of both houses to the queen to carry the sentence passed 
by the commissioners into effect, her evasive answers and 
feigned reluctance, as well as the strange scenes of 
hypocrisy which she acted afterwards, are well-known 
matters of history upon which it is unnecessary to dwell. 
No one will be found to excuse the hollow affectation of 
Elizabeth ; but the famous sentence that brought Mary- 
Execution t° the scaffold, though it has certainly left in 
of Mary, popular opinion a darker stain on the queen's 
memory than any other transaction of her life, if not 
capable of complete vindication has at least encountered 
a disproportioned censure. 

It is of course essential to any kind of apology for 
Remarks Elizabeth in this matter that Mary should have 
upon it. been assenting to a conspiracy against her life. 
For it could be no real crime to endeavour at her own 
deliverance ; nor, under the circumstances of so long 
and so unjust a detention, would even a conspiracy 
against the aggressor's power afford a moral justification 
for her death. But though the proceedings against her 
are by no means exempt from the shameful breach of 
legal rules almost universal in trials for high treason 
during that reign (the witnesses not having been exa- 
mined in open court), yet the depositions of her two 
secretaries, joined to the confessions of Babington and 



Eliz.— Catholics. REMARKS. 159 

other conspirators, form a body of evidence, not indeed 
irresistibly convincing, but far stronger than we find in 
many instances where condemnation has ensued. And 
Hume has alleged sufficient reasons for believing its 
truth, derived from the great probability of her con- 
curring in any scheme against her oppressor, from the 
certainty of her long correspondence with the conspirators 
(who, I may add, had not made any difficulty of hinting 
to her their designs against the queen's life g ), and from 
the deep guilt that the falsehood of the charge must 
inevitably attach to sir Francis Walsingham. h Those at 
least who cannot acquit the queen of Scots of her hus- 
band's murder, will hardly imagine that she would 
scruple to concur in a crime so much more capable of 
extenuation, and so much more essential to her interests. 
But as the proofs are not perhaps complete, we must 
hypothetically assume her guilt, in order to set this 
famous problem in the casuistry of public law upon its 
proper footing. 

It has been said so often that few perhaps wait to 
reflect whether it has been said with reason that Mary, 

8 In Murden's State Papers we have Vol. iii. Append, lix. — 1845.] 
abundant evidence of Mary's acquaintance h It may probably be answered to this, 

with the plots going forward in 1585 and that if the letter signed by Walsingham 

1586 against Elizabeth's government, if as well as Davison to sir Amias Paulet, 

not with those for her assassination. But urging him " to find out some way to 

Thomas Morgan, one of the most active shorten the life of the Scots queen," be 

conspirators, writes to her, 9th July, genuine, which cannot perhaps be justly 

1586,— "There be some good members questioned (though it is so in the Biog. 

that attend opportunity to do the queen Brit, art. Walsixgham, note 0), it will 

of England a piece of service, which 1 be difficult to give him credit for any 

trust will quiet many things, if it shall scrupulousness with respect to Mary, 

please God to lay his assistance to the But, without entirely justifying this 

cause, for the which I pray daily." p. 530. letter, it is proper to remark, what the 

In her answer to this letter she does not Marian party choose to overlook, that it 

advert to this hint, but mentions Ba- was written after the sentence, during the 

bington as in correspondence with her. queen's odious scenes of grimace, when 

At her trial she denied all communication some might argue, though erroneously, 

with him. [In a letter from Persons to that, a legal trial having passed, the 

a Spanish nobleman, in 1597, it is said formal method of putting the prisoner to 

that Mary had reproved the duke of death might, in so peculiar a case, be 

Guise and archbishop of Glasgow for dispensed with. This was Elizabeth's 

omitting to supply a sum of money to a own wish, in order to save her reputation, 

young English gentleman who had pro- and enable her to throw the obloquy on 

raised to murder Elizabeth. This, how- her servants; which, by Paulet's prudence 

ever, rests only on Persons's authority, and honour in refusing to obey her by 

Dodd's Church History of Catholics, by privately murdering his prisoner, she was 

Tierney : the editor gives the letter from reduced to do in a very bungling and 

a manuscript in his own possession, scandalous manner. 



160 AMENABILITY TO CRIMINAL PROCESS. Chap. III. 

as an independent sovereign, was not amenable to any 
English jurisdiction. This, however, does not appear 
unquestionable. By one of those principles of law which 
may be called natural, as forming the basis of a just and 
rational jurisprudence, every independent government is 
supreme within its own territory. Strangers, voluntarily 
resident within a state, owe a temporary allegiance to its 
sovereign, and are amenable to the jurisdiction of its 
tribunals ; and this principle, which is perfectly con- 
formable to natural law, has been extended by positive 
usage even to those who are detained in it by force. 
Instances have occurred very recently in England when 
prisoners of war have suffered death for criminal oiFences ; 
and, if some have doubted the propriety of carrying such 
sentences into effect, where a penalty of unusual severity 
has been inflicted by our municipal law, few, I believe, 
would dispute the fitness of punishing a prisoner of war 
for wilful murder in such a manner as the general prac- 
tice of civil societies and the prevailing sentiments of 
mankind agree to point out. It is certainly true that an 
exception to this rule, incorporated with the positive 
law of nations, and established no doubt before the age 
of Elizabeth, has rendered the ambassadors of sovereign 
princes exempt, in all ordinary cases at least, from cri- 
minal process. Whether, however, an ambassador may 
not be brought to punishment for such a flagrant abuse 
of the confidence which is implied by receiving him, as 
a conspiracy against the life itself of the prince at whose 
court he resides, has been doubted by those writers who 
are most inclined to respect the privileges with which 
courtesy and convenience have invested him. 1 A sove- 
reign, during a temporary residence in the territories 
of another, must of course possess as extensive an immu- 

i Questions were put to civilians by his public authority, and another sub- 

the • queen's order in 1570 concerning stituted in his stead, the agent of such 

the extent of Lesley bishop of Ross's a prince cannot challenge the privileges 

privilege as Mary's ambassador. Murden of an ambassador ; since none but abso- 

Papere, p. 18. Somers Tracts, i. 186. lute princes, and such as enjoy a royal 

They answered, first, that an ambassador prerogative, can constitute ambassadors, 

that raises rebellion against the prince to These questions are so far curious, that 

whom he is sent, by the law of nations they show the jus gentium to have been 

and the civil law of the Romans, has already reckoned a matter of science, in 

forfeited the privileges of an ambassador, which a particular class of lawyers was 

and is liable to punishment ; secondly, conversant, 
that, if a prince be lawfully deposed from 



Eliz.— Catholics. INVIOLABILITY OF SOVEREIGNS. 161 

nity as his representative ; but that he might, in such 
circumstances, frame plots for the prince's assassination 
with impunity, seems to take for granted some principle 
that I do not understand. 

But whatever be the privilege of inviolability attached 
to sovereigns, it must, on every rational ground, be 
confined to those who enjoy and exercise dominion in 
some independent territory. An abdicated or dethroned 
monarch may preserve his title by the courtesy of other 
states, but cannot rank with sovereigns in the tribunals 
where public law is administered. I should be rather 
surprised to hear any one assert that the parliament of 
Paris was incompetent to try Christina for the murder 
of Monaldeschi. And, though we must admit that 
Mary's resignation of her crown was compulsory, and 
retracted on the first occasion ; yet, after a twenty years' 
loss of possession, when not one of her former subjects 
avowed allegiance to her, when the king of Scotland 
had been so long acknowledged by England and by all 
Europe, is it possible to consider her as more than a 
titular queen, divested of every substantial right to 
which a sovereign tribunal could have regard? She 
was styled accordingly, in the indictment, " Mary, 
daughter and heir of James the Fifth, late king of 
Scots, otherwise called Mary queen of Scots, dowager 
of France." We read even that some lawyers would 
have had her tried by a jury of the county of Stafford, 
rather than by the special commission ; which Elizabeth 
noticed as a strange indignity. The commission, how- 
ever, was perfectly legal under the recent statute. 1 ' 

But while we can hardly pronounce Mary's execution 
to have been so wholly iniquitous and unwarrantable as 
it has been represented, it may be admitted that a more 
generous nature than that of Elizabeth would not have 
exacted the law's full penalty. The queen of Scots' 
detention in England was in violation of all natural, 
public, and municipal law ; and if reasons of state policy 
or precedents from the custom of princes are allowed to 
extenuate this injustice, it is to be asked whether such 
reasons and such precedents might not palliate the 
crime of assassination imputed to her. Some might 

k Strype, 360, 362. Civilians were consulted about the legality of trying Mary. 
Idem, Append. 138. 

VOL. I. M 



162 CONTINUED PERSECUTION. , Chap. III. 

perhaps allege, as was so frequently urged at the time, 
that, if her life could be taken with justice, it could not 
be spared in prudence ; and that Elizabeth's higher duty 
to preserve her people from the risks of civil commotion 
must silence every feeling that could plead for mercy. 
Of this necessity different judgments may perhaps be 
formed. It is evident that Mary's death extinguished 
the best hope of popery in England : but the relative 
force of the two religions was greatly changed since 
Norfolk's conspiracy ; and it appears to me that an act 
of parliament explicitly cutting her off from the crown, 
and at the same time entailing it on her son, would have 
afforded a very reasonable prospect of securing the 
succession against all serious disturbance. But this 
neither suited the inclination of Elizabeth nor of some 
among those who surrounded her. 

As the catholics endured without any open murmuring 

the execution of her on whom their fond hopes 
pereecutlon had so long rested, so for the remainder of the 
of t P oman queen's reign they by no means appear, when 

considered as a body, to have furnished any 
specious pretexts for severity. In that memorable year, 
when the dark cloud gathered around our coasts, when 
Europe stood by in fearful suspense to l behold what 
should be the result of that great cast in the game of 
human politics, what the craft of Eome, the power of 
Philip, the genius of Farnese, could achieve against the 
island-queen with her Drakes and Cecils, — in that agony 
of the protestant faith and English name, they stood 
the trial of their spirits without swerving from their 
allegiance. It was then that the catholics in every 
county repaired to the standard of the lord-lieutenant, 
imploring that they might not be suspected of bartering 
the national independence for their religion itself. It 
was then that the venerable lord Montague brought a 
troop of horse to the queen at Tilbury, commanded by 
himself, his son, and grandson.™ It would have been 

m Butler's English Catholics, i. 259; tributions of money, and for all other 

Hume. This is strongly confirmed by a warlike actions, there was no difference 

letter printed not long after, and repub- between the catholic and the heretic, 

lished in the Harleian Miscellany, vol. i. But in this case [of the Armada], to with- 

p. 142, with the name of one Leigh, a stand the threatened conquest, yea, to 

seminary priest, but probably the work defend the person of the queen, there ap- 

of some protestant. He says, " for con- peared such a sympathy, concourse, and 



Eliz.— Catholics. NUMBER OF CATHOLIC MARTYRS. 163 

a sign of gratitude if the laws depriving them of the 
free exercise of their religion had been, if not repealed, 
yet suffered to sleep, after these proofs of loyalty. But 
the execution of priests and of other catholics became on 
the contrary more frequent, and the fines for recusancy 
were exacted as rigorously as before." A statute was 
enacted, restraining popish recusants, a distinctive name 
now first imposed by law, to particular places of resi- 
dence, and subjecting them to other vexatious provisions." 
All persons were forbidden by proclamation to harbour 
any of whose conformity they were not assured. 1 " Some 
indulgence was doubtless shown during all Elizabeth's 
reign to particular persons, and it was not unusual to 
release priests from confinement; but such precarious 
and irregular connivance gave more scandal to the 
puritans than comfort to the opposite party. 

The catholic martyrs under Elizabeth amount to no 
inconsiderable number. Dodd reckons them 
at 191 ; Milner has raised the list to 204. observa- 
Fifteen of these, according to him, suffered for tions - 
denying the queen's supremacy, 126 for exercising their 
ministry, and the rest for being reconciled to the 
Romish church. Many others died of hardships in 
prison, and many were deprived of their property. q 

consent of all sorts of persons, without 667. Birch's Memoirs of Elizabeth, 

respect of religion, as they all appeared Lingard, &c» One hundred and ten 

to be ready to fight against all strangers, catholics suffered death between 1588 

as it were with one heart and one body." and 1603. Lingard, 513. 

Notwithstanding this, I am far from ° 33 Eliz. c 2. 

thinking that it would have been safe p Camden, 566. Strype, iv. 56. This 

to place the catholics, generally speaking, was the declaration of October, 1591, 

in command. Sir William Stanley's recent which Andreas Philopater answered, 

treachery in giving up Deventer to the Bibadeneira also inveighs against it. 

Spaniards made it unreasonable for them According to them, its publication was 

to complain of exclusion from trust Nor delayed till after the death of Hatton, 

do I know that they did so. But trust when the persecuting part of the queen's 

and toleration are two different things, council gained the ascendancy. 

And even with respect to the former, I q Butler, 178. In Coke's famous speech 

believe it far better to leave the matter in opening the case of the Powder-plot, 

in the hands of the executive govern- he says that not more than thirty priests 

ment, which will not readily suffer itself and five receivers had been executed 

to be betrayed, than to proscribe, as we in the whole of the queen's reign, and 

have done, whole bodies by a legislative for religion not any one. State Trials, 

exclusion. Whenever, indeed, the govern- ii. 179. 

ment itself is not to be trusted, there Dr. Lingard says of those who were 

arises a new condition of the problem. executed between 1588 and the queen's 

n StryP e » v °l s - u '. and iv. passim, death, "the butchery, with a few exccp- 

Life of Whitgift, 401, 505. Murden, tions, was performed on the victim while 

M 2 



164 CONDEMNATIONS OF POPISH PRIESTS. Chap. III. 

There seems nevertheless to be good reason for doubt- 
ing whether any one who was executed might not have 
saved his life by explicitly denying the pope's power to 
depose the queen. It was constantly maintained by 
her ministers that no one had been executed for his 
religion. This would be an odious and hypocritical 
subterfuge if it rested on the letter of these statutes, 
which adjudge the mere manifestation of a belief in the 
Roman catholic religion, under certain circumstances, 
to be an act of treason. But both lord Burleigh, in his 
Execution of Justice, and Walsingham, in a letter 
published by Burnet/ positively assert the contrary ; 
and I am not aware that their assertion has been 
disproved. This certainly furnishes a distinction be- 
tween the persecution under Elizabeth (which, unjust 
as it was in its operation, yet, as far as it extended 
to capital inflictions, had in view the security of the 
government) and that which the protestants had sus- 
tained in her sister's reign, springing from mere bigotry 
and vindictive rancour, and not even shielding itself at 
the time with those shallow pretexts of policy which it 
has of late been attempted to set up in its extenuation. 
But that which renders these condemnations of popish 
priests so iniquitous is, that the belief in, or rather the 
refusal to disclaim, a speculative tenet, dangerous in- 
deed, and incompatible with loyalty, but not coupled 
with any overt act, was construed into treason ; nor can 
any one affect to justify these sentences who is not 
prepared to maintain that a refusal of the oath of 
abjuration, while the pretensions of the house of Stuart 
subsisted, might lawfully or justly have incurred the ' 
same penalty.* 

he was in full possession of his senses." able opinion should be hanged, " and the 

Vol. viii. p. 356. I should be glad to manner of drawing and quartering for- 

think that the few exceptions were the borne." Strype, iii. 620. This seems to 

other way. Much would depend on the imply that it had been usually practised 

humanity of the sheriff, which one might on the living. And lord Bacon, in his 

hope to be stronger in an English gen- observations on a libel written against 

tlenianthan his zeal against popery. But lord Burleigh in 1592, does not deny the 

I cannot help acknowledging that there " bowellings " of catholics ; but makes a 

is reason to believe the disgusting cruel- sort of apology for it, as " less cruel 

ties of the legal sentence to have been than the wheel or forcipation, or even 

frequently inflicted. In an anonymous simple burning." Bacon's Works, voLi. 

memorial among lord Burleigh's papers, p. 534. 

written about 1586, it is recommended r Burnet, ii. 418. 

that priests persisting in their treason- * "Though no papists were in this 



Eliz.— Catholics. ORDER OF JESUITS. 165 

An apology was always deduced for these measures, 
whether of restriction or punishment, adopted against 
all adherents to the Roman church, from the restless 
activity of that new militia which the Holy See had 
lately organised. The mendicant orders established in 
the thirteenth century had lent former popes a powerful 
aid towards subjecting both the laity and the secular 
priesthood, by their superior learning and ability, their 
emulous zeal, their systematic concert, their implicit 
obedience. But, in all these requisites for good and 
faithful janissaries of the church, they were far excelled 
by the new order of Ignatius Loyola. Eome, I believe, 
found in their services what has stayed her fall. They 
contributed in a very material degree to check the tide 
of the Reformation. Subtle alike and intrepid, pliant 
in their direction, unshaken in their aim, the sworn, 
implacable, unscrupulous enemies of protestant govern- 
ments, the Jesuits were a legitimate object of jealousy 
and restraint. As every member of that society enters 
into an engagement of absolute, unhesitating obedience 
to its superior, no one could justly complain that he 
was presumed capable at least of committing any crimes 

reign put to death purely on account of as truly punished for their religion as if 
their religion, as numberless protestants they had been convicted of heresy ? A 
had been in the woful days of queen man is punished for religion when he 
Mary, yet many were executed for trea- incurs a penalty for its profession or ex- 
son." Churton's Life of Nowell, p. 147. ercise to which he was not liable on any 
Mr. Southey, whose abandonment of the other account. 

oppressed side I sincerely regret, holds This is applicable to the great majority 
the same language ; and a later writer, of capital convictions on this score under 
Mr. Townsend, in his Accusations of Elizabeth. The persons convicted could 
History against the Church of Rome, not be traitors in any fair sense of the 
has laboured to defend the capital, as word, because they were not charged 
well as other punishments, of catholics with anything properly denominated 
under Elizabeth, on the same pretence of treason. It. certainly appears that Cam- 
their treason. pian and some other priests about the 
Treason, by the law of England, and same time were indicted on the statute of 
according to the common use of language, Edward III. for compassing the queen's 
is the crime of rebellion or conspiracy death, or intending to depose her. But 
against the government If a statute is the only evidence, so far as we know or 
made, by which the celebration of certain have reason to suspect, that could be 
religious rites is subjected to the same brought against them, was their own ad- 
penalties as rebellion or conspiracy, mission, at least by refusing to abjure it, 
would any man, free from prejudice, of the pope's power to depose heretical 
and not designing to impose upon the princes. I suppose it is unnecessary to 
uninformed, speak of persons convicted prove that, without some overt act to 
on such a statute as guilty of treason, show a design of acting upon this 
without expressing in what sense he principle, it could not fall within the 
uses the words, or deny that they were statute. 



166 ENGLISH CATHOLICS. Chap. III. 

that the policy of his monarch might enjoin. But if 
the Jesuits by their abilities and busy spirit of intrigue 
promoted the interests of Kome, they raised up enemies 
by the same means to themselves within the bosom of 
the church; and became little less obnoxious to the 
secular clergy, and to a great proportion of the laity, 
than to the protestants whom they were commissioned 
to oppose. Their intermeddling character was shown 
in the very prisons occupied by catholic recusants, 
where a schism broke out between the two parties, and 
the secular priests loudly complained of their usurping 
associates.' This was manifestly connected with the 
great problem of allegiance to the queen, which the one 
side being always ready to pay, did not relish the sharp 
usage it endured on account of the other's disaffection. 
The council indeed gave some signs of attending to this 
distinction, by a proclamation issued in 1602, ordering 
all priests to depart from the kingdom, unless they 
should come in and acknowledge their allegiance, with 
whom the queen would take further order." Thirteen 
priests came forward on this, with a declaration of 
allegiance as full as could be devised. Some of the 
more violent papists blamed them for this ; and the 
Louvain divines concurred in the censure." There 
were now two parties among the English catholics ; and 
those who, goaded by the sense of long persecution, 
and inflamed by obstinate bigotiy, regarded every here- 
tical government as unlawful or unworthy of obedience, 
used every machination to deter the rest from giving 
any test of their loyalty. These were the more busy, 
but by much the less numerous class ; and their in- 
fluence was mainly derived from the laws of severity, 
which they had braved or endured with fortitude. It 
is equally candid and reasonable to believe that, if a 
fair and legal toleration, or even a general connivance 

' Watson's Quodlibets. True Relation priests, and the causes of all the discord 

of the Faction begun at Wisbech, 1601. in the English nation." P. 74. I have 

These tractscontain rather an uninterest- seen several other pamphlets of the time 

ing account of the squabbles in Wisbech relating to this difference. Some account 

castle among the prisoners, but cast heavy of it may be found in Camden, 648, and 

reproaches on the Jesuits, as the " fire- Strype, i\\ 194, as well as in the catholic 

brands of all sedition, seeking by rightor historians, Dodd and Lingard. 

wrong simply or absolutely the monarchy u Rymer, xv. 473, 488. 

of all England, enemies to all secular * Butler's Engl. Catholics, p. 261. 



Eliz.— Catholics. LENITY OF SIR C. HATTON. 167 

at tlio exercise of their worship, had heen conceded in 
the first part of Elizabeth's reign, she would have spared 
herself those perpetual terrors of rebellion which oc- 
cupied all her later years. Eome would not indeed 
have been appeased, and some desperate fanatic might 
have sought her life ; but the English catholics collec- 
tively would have repaid her protection by an attach- 
ment which even her rigour seems not wholly to have 
prevented. 

It is not to be imagined that an entire unanimity 
prevailed in the councils of this reign as to the best 
mode of dealing with the adherents of Eome. Those 
temporary connivances or remissions of punishment 
which, though to our present view they hardly lighten 
the shadows of this persecution, excited loud complaints 
from bigoted men, were owing to the queen's personal 
humour, or the influence of some advisers more liberal 
than the rest. Elizabeth herself seems always to have 
inclined rather to indulgence than extreme severity. 
Sir Christopher Hatton, for some years her chief favour- 
ite, incurred odium for his lenity towards papists, and 
was, in their own opinion, secretly inclined to them/ 
Whitgift found enough to do with an opposite party. 
And that too noble and high-minded spirit, so ill fitted 
for a servile and dissembling court, the earl of Essex, 
was the consistent friend of religious liberty, whether 
the catholic or the puritan were to enjoy it. But those 
councillors, on the other hand, who favoured the more 
precise reformers, and looked coldly on the established 
church, never failed to demonstrate their protestantism 
by excessive harshness towards the old religion's ad- 
herents. That bold bad man, whose favour is the great 
reproach of Elizabeth's reign, the earl of Leicester, and 
the sagacious, disinterested, inexorable Walsingham, 
were deemed the chief advisers of sanguinary punish- 
ments. But, after their deaths, the catholics were 
mortified to discover that lord Burleigh, from whom 
they had hoped for more moderation, persisted in the 

y Ribadeneira says that Hatton "ani- his death in 1591. De Schismate Anglic, 

mo Catholicus, nihil periude quam inno- c 9. This must have been the procla- 

centemillorumsanguinemadeocrudeliter mation of 29th Nov. 1591, forbidding all 

pcrfundi dolebat." He prevented Cecil persons to harbour any one of whose 

from promulgating a more atrocious edict conformity they should not be well as- 

than any other, which was published after 6ured. 



168 RESTRAINTS AND PENALTIES Chap. III. 

same severities ; contrary, I think, to the principles he 
had himself laid down in the paper from which I have 
above made some extracts.* 

The restraints and penalties by which civil govern- 
ments have at various times thought it expedient to 
limit the religious liberties of their subjects may be 
arranged in something like the following scale. The 
first and slightest degree is the requisition of a test of 
conformity to the established religion, as the condition 
of exercising offices of civil trust. The next step is to 
restrain the free promulgation of opinions, especially 
through the press. All prohibitions of the open exercise 
of religious worship appear to form a third and more 
severe class of restrictive laws. They become yet 
more rigorous when they afford no indulgence to the 
most private and secret acts of devotion or expressions 
of opinion. Finally, the last stage of persecution is to 
enforce by legal penalties a conformity to the established 
church, or an abjuration of heterodox tenets. 

The first degree in this classification, or the exclusion 
of dissidents from trust and power, though it be always 
incumbent on those who maintain it to prove its necessity, 
may, under certain rare circumstances, be conducive to 
the political well-being of a state ; and can then only be 
reckoned an encroachment on the principles of toleration 
when it ceases to produce a public benefit sufficient to 
compensate for the privation it occasions to its objects. 
Such was the English test act during the interval between 
1672 and 1688. But, in my judgment, the instances 
which the history of mankind affords, where even these 
restrictions have been really consonant to the soundest 
policy, are by no means numerous. Cases may also 
be imagined where the free discussion of controverted 
doctrines might, for a time at least, be subjected to 
some limitation for the sake of public tranquillity. I 
can scarcely conceive the necessity of restraining an 
open exercise of religious rites in any case, except that 
of glaring immorality. In no possible case can it be 
justifiable for the temporal power to intermeddle with 
the private devotions or doctrines of any man,- But least 
of all can it carry its inquisition into the heart's re- 

* Birch, i. 84. 



Eliz.— Catholics. UNDER ELIZABETH. 169 

cessess, and bend the reluctant conscience to an insincere 
profession of truth, or extort from it an acknowledgment 
of error, for the purpose of inflicting punishment. The 
statutes of Elizabeth's reign comprehend every one of 
these progressive degrees of restraint and persecution. 
And it is much to be regretted that any writers worthy 
of respect should, either through undue prejudice against 
an adverse religion, or through timid acquiescence in 
whatever has been enacted, have offered for this odious 
code the false pretext of political necessity. That neces- 
sity, I am persuaded, can never be made out: the 
statutes were, in many instances, absolutely unjust ; in 
others, not demanded by circumstances; in almost all, 
prompted by religious bigotry, by excessive appre- 
hension, or by the arbitrary spirit with which our 
government was administered under Elizabeth. 



170 ORIGIN OF DIFFERENCES Chap. IV. 



CHAPTEE IV. 

ON THE LAWS OF ELIZABETH'S REIGN RESPECTING PROTESTANT 
NONCONFORMISTS. 



Origin of the Differences among the English Protestants — Religious Inclinations of 
the Queen — Unwillingness of many to comply with the established Ceremonies — 
Conformity enforced by the Archbishop — Against the Disposition of others— A 
more determined Opposition, about 1570, led by Cartwright — Dangerous Nature 
of his Tenets — Puritans supported in the Commons — and in some measure by the 
Council— Prophesyings— Archbishops Grindal and Whitgift— Conduct of the latter 
in enforcing Conformity— High Commission Court^Lord Burleigh averse to 
Severity— Puritan Libels— Attempt to set up Presbyterian System— House of 
Commons averse to Episcopal Authority — Independents liable to severe Laws — 
Hooker's Ecclesiastical Polity — Its Character— Spoliation of Church Revenues- 
General Remarks— Letter of Walsingham in Defence of the Queen's Government. 

The two statutes, enacted in the first year of Elizabeth, 
commonly called the acts of supremacy and 
ans ' uniformity, are the main links of the Anglican 
church with the temporal constitution, and establish the 
subordination and dependency of the former ; the first 
abrogating all jurisdiction and legislative power of eccle- 
siastical rulers, except under the authority of the crown ; 
and the second prohibiting all changes of rites and dis- 
cipline without the approbation of parliament. It was 
the constant policy of this queen to maintain her eccle- 
siastical prerogative and the laws she had enacted. But 
in following up this principle she found herself involved 
in many troubles, and had to contend with a religious 
party quite opposite to the Eomish, less dangerous in- 
deed and inimical to her government, but full as vexa- 
tious and determined. 

I have in another place slightly mentioned the differ- 
Ori in f ences ^ na ^ De gan to spring up Under Edward VI. 
the dif- between the moderate reformers who established 
amonglne *k e new Anglican church, and those who accused 
English them of proceeding with too much forbearance 
protestante 'in casting off superstitions and abuses. These 
diversities of opinion were not without some relation to 



Eliz.— Puritans. AMONG ENGLISH PROTESTANTS. 171 

those which distinguished the two great families of pro- 
testantism in Europe. Luther, intent on his own system 
of dogmatic theology, had shown much indifference about 
retrenching exterior ceremonies, and had even favoured, 
especially in the first years of his preaching, that spe- 
cious worship which some ardent reformers were eager 
to reduce to simplicity. 11 Crucifixes and images, tapers 
and priestly vestments, even for a time the elevation of 
the host and the Latin mass-book, continued in the 
Lutheran churches ; while the disciples of Zuingle and 
Calvin were carefully eradicating them as popish idolatry 
and superstition. Cranmer and Ridley, the founders 
of the English Keformation, justly deeming themselves 
independent of any foreign master, adopted a middle 
course between the Lutheran and Calvinistic ritual. 
The general tendency however of protestants, even in 
the reign of Edward VI. , was towards the simpler forms ; 
whether through the influence of those foreign divines 
who co-operated in our Reformation, or because it was 
natural in the heat of religious animosity to recede as far 
as possible, especially in such exterior distinctions, from 
the opposite denomination. The death of Edward seems 
to have prevented a further approach to the scheme of 
Geneva in our ceremonies, and perhaps in our church- 
government. During the persecution of Mary's reign 
the most eminent protestant clergymen took refuge in 
various cities of Germany and Switzerland. They were 
received by the Calvinists with hospitality and fraternal 
kindness ; while the Lutheran divines, a narrow-minded 
intolerant faction, both neglected and insulted them. b 
Divisions soon arose among themselves about the use of 
the English service, in which a pretty considerable party 
was disposed to make alterations. The chief scene of 
these disturbances was Frankfort, where Knox, the 
famous reformer of Scotland, headed the innovators; 
while Cox, an eminent divine, much concerned in the 
establishment of Edward VI., and afterwards bishop of 
Ely, stood up for the original liturgy. Cox succeeded 
(not quite fairly, if we may rely on the only narrative 
we possess) in driving his opponents from the city; 
but these disagreements were by no means healed 

a Sleidan, Hist, de la Reformation, par Courayer, ii. 74. 
b Strype's Cranmer, 354. 



172 THE QUEEN'S RELIGIOUS INCLINATIONS. Chap. IV. 

when the accession of Elizabeth recalled both parties 
to their own country, neither of them very likely to 
display more mutual charity in their prosperous hour 
than they had been able to exercise in a common per- 
secution. 

The first mortification these exiles endured on their 
return was to find a more dilatory advance towards 
public reformation of religion, and more of what they 
deemed lukewarmness, than their sanguine zeal had 
anticipated. Most part of this delay was owing to the 
greater prudence of the queen's councillors, who felt the 
pulse of the nation before they ventured on such essential 
changes. But there was yet another obstacle, on which 
the reformers had not reckoned. Elizabeth, 
inclinations though resolute against submitting to the papal 
of the supremacy, was not so averse to all the tenets 

abjured by protestants, and loved also a more 
splendid worship than had prevailed in her brother's 
reign ; while many of those returned from the Continent 
were intent on copying a still simpler model. She re- 
proved a divine who preached against the real presence, 
and is even said to have used prayers to the Virgin. d 
But her great struggle with the reformers was about 
images, and particularly the crucifix, which she retained, 
with lighted tapers before it, in her chapel ; though in 
the injunctions to the ecclesiastical visitors of 1559 they 

c These transactions have been per- Smalcaldic league of the German princes, 

petuated by a tract, entitled Discourse of whose bigotry would admit none but 

the Troubles at Frankfort, first published members of the Augsburg Confession. 

in 1575, and reprinted in the well-known Jewell's letters to Peter Martyr, in the 

collection entitled the Phcenix. It I is appendix to Burnet's third volume, and 

fairly and temperately written, though lately published more accurately, with 

with an avowed bias towards the puritan many of other reformers, by the Parker 

party. Whatever we read in any his- Society [1845], throw considerable light 

torian on the subject is derived from this on the first two years of Elizabeth's 

authority; but the refraction is of course reign; and show that famous prelate to 

very different through the pages of Collier have been what afterwards would have 

and of Neal. been called a precisian or puritan. He 

d Strype's Annals, ii. 1. There was even approved a scruple Elizabeth enter- 

a Lutheran party at the beginning of her tained about her title of head of the 

reign, to which the queen may be said church, as appertaining only to Christ, 

to have inclined, not altogether from But the unreasonableness of the discon- 

religion, but from policy. Id. i. 53. Her tented party, and the natural tendency 

situation was very hazardous; and, in of a man who has Joined the side of 

order to connect herself with sincere power to deal severely with those he has 

allies, she had thoughts of joining the left, made him afterwards their enemy. 



Eliz.— Puritans. MARRIAGE OF THE CLERGY. 173 

arc directed to have them taken away from churches/ 
This concession she must have made very reluctantly, 
for we find proofs the next year of her inclination to 
restore them ; and the question of their lawfulness was 
debated, as Jewell writes word to Peter Martyr, by 
himself and Grindal on one side, against Parker and 
Cox, who had been persuaded to argue in their favour/ 
But the strenuous opposition of men so distinguished as 
Jewell, Sandys, and Grindal, of whom the first declared 
his intention of resigning his bishopric in case this return 
towards superstition should be made, compelled Eliza- 
beth to relinquish her project/ The crucifix was even 
for a time removed from her own chapel, but replaced 
about 1570/ 

There was, however, one other subject of dispute be- 
tween the old and new religions upon which her majesty 
could not be brought to adopt the protestant side of the 
question. This was the marriage of the clergy, to which 
she expressed so great an aversion, that she would never 
consent to repeal the statute of her sister's reign against 
it. 1 Accordingly the bishops and clergy, though they 
married by connivance, or rather by an ungracious per- 
mission, 11 saw with very just dissatisfaction their children 

e Roods and relics accordingly were expected the queen to make such a retro- 
broken to pieces and burned throughout grade movement in religion as would 
the kingdom, of which Collier makes loud compel them all to disobey her. Life of 
complaint. This, Strype says, gave much Parker, Appendix, 29 ; a very remarkable 
offence to the catholics ; and it was not letter. 

the most obvious method of inducing h Strype's Parker, 310. The arch- 

them to conform. bishop seems to disapprove this as inex- 

f Burnet, iii. Appendix, 290. Strype's pedient, but rather coldly; he was far 

Parker, 46. from sharing the usual opinions on this 

6 Quantum auguror, non scribam ad subject A puritan pamphleteer took the 

te posthac episcopus. Eo enim jam res liberty to name the queen's chapel as 

pervenit, ut aut cruces argentese et stan- ■ the pattern and precedent of all super- 

neas, quas nos ubique confregimus, resti- stition." Strype's Annals, i. 471. 

tuendae sint, aut episcopatus relinquendi. i Burnet, ii. 395. 

Burnet, 294. I conceive that by cruces v One of the injunctions to the visitors 

we are to understand crucifixes, not f 1559, reciting the offence and slander 

mere crosses ; though I do not find the to the church that had arisen by lack of 

word, even in Du Cange, used in the for- discreet and sober behaviour in many 

mer sense. Sandys writes that he had ministers, both in choosing of their wives 

nearly been deprived for expressing him- and in living with them, directs that no 

self warmly against images. Id. 296. priest or deacon shall marry without the 

Other proofs of the text may be found in allowance of the bishops, and two justices 

the same collection, as well as in Strype's of the peace dwelling near the woman's 

Annals, and his Life of Parker. Even abode, nor without the consent of her 

Parker seems, on one occasion, to have parents or kinsfolk, or, for want of these, 



174 



WORSHIP AT ZURICH AND GENEVA. Chap. IV. 



treated by the law as the offspring of concubinage.™ This 
continued, in legal strictness, till the first year of James, 
when the statute of Mary was explicitly repealed ; though 
I cannot help suspecting that clerical marriages had been 
tacitly recognised, even in courts of justice, long before 
that time. Yet it appears less probable to derive Eliza- 
beth's prejudice in this respect from any deference to the 
Roman discipline, than from that strange dislike to the 
most lawful union between the sexes which formed one 
of the singularities of her character. 

Such a reluctance as the queen displayed to return in 
every point even to the system established under Edward 
was no slight disappointment to those who thought that 
too little had been effected by it. They had beheld at 
Zurich and Geneva the simplest and, as they conceived, 
the purest form of worship. They were persuaded that 
the vestments still worn by the clergy, as in the days of 



of her master or mistress, on pain of not 
being permitted to exercise the ministry 
or hold any benefice ; and that the mar- 
riages of bishops should be approved by 
the metropolitan, and also by com- 
missioners appointed by the queen. So- 
mers Tracts, i. 65. Burnet, ii. 398. It 
is reasonable to suppose that when a host 
of low-bred and illiterate priests were at 
once released from the obligation to celi- 
bacy, many of them would abuse their 
liberty improvidently, or even scandal- 
ously ; and this probably had increased 
Elizabeth's prejudice against clerical 
matrimony- But I do not suppose that 
this injunction was ever much regarded. 
Some time afterwards (Aug. 1561) she 
put forth another extraordinary injunc- 
tion, that no member of a college or 
cathedral should have his wife living 
within its precincts, under pain of forfeit- 
ing all his preferments. Cecil sent this 
to Parker, telling him at the same time 
that it was with great difficulty he had 
prevented the queen from altogether for- 
bidding the marriage of priests. Life of 
P. 107. And the archbishop himself 
says, in the letter above mentioned, " I 
was in a horror to hear such words to 
come from her mild nature and Chris- 
tianly learned conscience as she spake 
concerning God's holy ordinance and in- 
stitution of matrimony." 
m Sandys writes to Parker, April, 1559, 



"The queen's majesty will wink at it, 
but not stablish it by law, which is no- 
thing else but to bastard our children." 
And decisive proofs are brought by Strype 
that the marriages of the clergy were not 
held legal in the first part, at least, of 
the queen's reign. Elizabeth herself, 
after having been sumptuously enter- 
tained by the archbishop at Lambeth, 
took leave of Mrs. Parker with the follow- 
ing courtesy : " Madam, (the style of a 
married lady) I may not call you ; mis- 
tress (the appellation at that time of an 
unmarried woman) I am loth to call you ; 
but however I thank you for your good 
cheer." This lady is styled, in deeds 
made while her husband was archbishop, 
Parker alias Harleston, which was her 
maiden name. And she dying before her 
husband, her brother is called her heir- 
at-law, though she left children. But the 
archbishop procured letters of legitima- 
tion, in order to render them capable of 
inheritance. Life of Parker, p. 511. 
Others did the same. Annals, i. 8. Yet 
such letters were, I conceive, beyond the 
queen's power to grant, and could not 
have obtained any regard in a court of 
law. 

In the diocese of Bangor it was usual 
for the clergy, some years after Eliza- 
beth's accession, to pay the bishop for a 
licence to keep a concubine. Strype's 
Parker, 203. 



Eliz.— Puritans. CLERICAL VESTMENTS. 175 

popery, though in themselves indifferent, led to erro- 
neous notions among the people, and kept alive a recol- 
lection of former superstitions, which would render their 
return to them more easy in the event of another political 
revolution." They disliked some other ceremonies for 
the same reason. These objections were by no means 
confined, as is perpetually insinuated, to a few discon- 
tented persons. Except archbishop Parker, who had 
remained in England during the late reign, and Cox, 
bishop of Ely, who had taken a strong part at Frankfort 
against innovation, all the most eminent churchmen, 
such as Jewell, Grindal, Sandys, Nowell, were in favour 
of leaving off the surplice and what were called the 
popish ceremonies. Whether their objections are to be 
deemed narrow and frivolous or otherwise, it is incon- 
sistent with veracity to dissemble that the queen alone 
was the cause of retaining those observances to which 
the great separation from the Anglican establishment is 
ascribed. Had her influence been withdrawn, surplices 
and square caps would have lost their steadiest friend ; 
and several other little accommodations to the prevalent 
dispositions of protestants would have taken place. Of 
this it seems impossible to doubt, when we read the 
proceedings of the convocation in 1562, when a proposi- 
tion to abolish most of the usages deemed objectionable 
was lost only by a vote, the numbers being 59 to 58. p 

In thus restraining the ardent zeal of reformation,' 
Elizabeth may not have been guided merely by her own 
prejudices, without far higher motives of prudence and 
even of equity. It is difficult to pronounce in what pro- 

n Burnet, iii. 305. Grindal, when first named to the see of 

° Jewell's letters to Bullinger, in Bur- London, had his scruples about wearing 

net, are full of proofs of his dissatisfac- the episcopal habits removed by Peter 

tion ; and those who feel any doubts Martyr. Strype's Grindal, 29. 
may easily satisfy themselves from the P It was proposed on this occasion to 

same collection, and from Strype as to abolish all saints' days, to omit the cross 

the others. The current opinion, that in baptism, to leave kneeling at the com- 

these scruples were imbibed during the munion to the ordinary's discretion, to 

banishment of our reformers, must be take away organs, and one or two more 

received with great allowance. The dis- of the ceremonies then chiefly in dispute. 

like to some parts of the Anglican ritual Burnet, iii. 303, and Append. 319. Strype, 

had begun at home; it had broken out i. 297, 299. Nowell voted in the ml- 

at Frankfort; it is displayed in all the nority. It can hardly be going too far to 

early documents of Elizabeth's reign by suppose that some of the majority were 

the English divines, far more warmly attached to the old religion, 
than by their Swiss correspondents. 



176 PROPORTION OF CONFLICTING RELIGIONS. Chap. IV. 

portion the two conflicting religions were blended on 
her coming to the throne. The reformed occupied most 
large towns, and were no doubt a more active and power- 
ful body than their opponents. Nor did the ecclesiastical 
visitors of 1559 complain of any resistance, or even un- 
willingness, among the people. q Still the Eomish party 



1 Jewell, one of these visitors, writes 
afterwards to Martyr, "Invenimus ubi- 
que animos multitudiuis satis propensos 
ad religionem ; ibi etiam, ubi omnia pu- 
tabantur fore difflcillima. .... Si quid 
erat obstinate malitiae, id totum erat in 
presbyteris, illis prsesertira, qui aliquando 
stetissent a nostra sententia." Burnet, Hi. 
Append. 289. The common people in 
London and elsewhere, Strype says, took 
an active part in demolishing images; 
the pleasure of destruction, I suppose, 
mingling with their abhorrence of idol- 
atry. And during the conferences held 
in Westminster Abbey, Jan. 1559, be- 
tween the catholic and protestant divines, 
the populace, who had been admitted as 
spectators, testified such disapprobation 
of the former, that they made it a pre- 
text for breaking off the argument There 
was indeed such a tendency to anticipate 
the government in reformation as neces- 
sitated a proclamation, Dec. 28, 1558, 
silencing preachers on both sides. 

Mr. Butler says, from several circum- 
stances it is evident that a great majority 
of the nation then inclined to the Roman 
catholic religion. Mem. of English Catho- 
lics, i. 146. But his proofs of this are 
extremely weak. The attachment he 
supposes to have existed in the laity to- 
wards their pastors may well be doubted ; 
it could not be founded on the natural 
grounds of esteem ; and if Rishton, the 
continuator of Sanders de Schismate, 
whom he quotes, says that one third of 
the nation was protestant, we may surely 
double the calculation of so determined a 
papist As to the influence which Mr. B. 
alleges the court to have employed in 
elections for Elizabeth's first parliament, 
the argument would equally prove that 
the majority was protestant under Mary, 
since she had recourse to the same means. 
The whole tenor of historical documents 
in Elizabeth's reign proves that the catho- 
lics soon became a minority, and still 
more among the common people than the 



gentry. The north of England, where 
their strength lay, was in every respect 
the least important part of the kingdom. 
Even according to Dr. Lingard, who thinks 
fit to claim half the nation as catholic in 
the middle of this reign, the number of 
recusants certified to the council under 
23 Eliz. c. 1, amounted only to fifty thou- 
sand; and, if we can trust the authority 
of other lists, they were much fewer be- 
fore the accession of James. This writer, 
I may observe in passing, has, through 
haste and thoughtlessness, misstated a 
passage he cites from Murden's State 
Papers, p. 605, and confounded the persons * 
suspected for religion in the city of Lon- 
don, about the time of the Armada, with 
the whole number of men fit for arms ; 
thus making the former amount to seven- 
teen thousand and eighty-three. 

Mr. Butler has token up so paradox- 
ical a notion on this subject, that he 
literally maintains the catholics to have 
been at least one half of the people at the 
epoch of the Gunpowder-plot Vol. i. 
p. 295. We should be glad to know at 
what time he supposes the grand apos- 
tacy to have been consummated. Cardinal 
Bentivoglio gives a very different ac- 
count ; reckoning the real catholics, such 
as did not make profession of heresy, at 
only a thirtieth part of the whole; 
though he supposes that four-fifths might 
become such, from secret inclination or 
general indifference, if it were once esta- 
blished. Opere di Bentivoglio, p. 83, 
edit. Paris, 1645. But I presume neither 
Mr. Butler nor Dr. Lingard would own 
these adiaphorisU. 

The latter writer, on the other hand, 
reckons the Hugonots of France, soon 
after 1560, at only one hundredth part of 
the nation, quoting for this Castelnau, an 
useful memoir-writer, but no authority 
on a matter of calculation. The stern 
spirit of Coligni, atrox animus Catonis, 
rising above all misfortune, and uncon- 
querable except by the darkest treachery. 



Eliz.— Puritans. DIFFICULTIES OF A COMPROMISE. 177 

was extremely numerous: it comprehended the far 
greater portion of the beneficed clergy, and all those 
who, having no turn for controversy, clung with pious 
reverence- to the rites and worship of their earliest asso- 
ciations. It might be thought perhaps not very repug- 
nant to wisdom or to charity that such persons should 
be won over to the reformed faith by retaining a few 
indifferent usages, which gratified their eyes, and took 
off the impression, so unpleasant to simple minds, of 
religious innovation. It might be urged that, should 
even somewhat more of superstition remain a while 
than rational men would approve, the mischief would 
be far less than to drive the people back into the arms 
of popery, or to expose them to the natural consequences 
of destroying at once all old landmarks of reverence, — 
a dangerous fanaticism, or a careless irreligion. I know 
not in what degree these considerations had weight with 
Elizabeth ; but they were such as it well became her to 
entertain. 

AVe live, however, too far from the period of her 
accession to pass an unqualified decision on the course 
of policy which it was best for the queen to pursue. 
The difficulties of effecting a compromise between two 
intolerant and exclusive sects were perhaps insuperable. 
In maintaining or altering a religious establishment, it 
may be reckoned the general duty of governments to 
respect the wishes of the majority. But it is also a rule 
of human policy to favour the more efficient and deter- 
mined, which may not always be the more numerous, 
party. I am far from being convinced that it would not 
have been practicable, by receding a little from that 
uniformity which governors delight to prescribe, to have 
palliated in a great measure, if not put an end for a time 
to, the discontent that so soon endangered the new 
establishment.. The frivolous usages, to which so many 
frivolous objections were raised, such as the tippet and 
surplice, the sign of the cross in baptism, the ring in 
matrimony, the posture of kneeling at the communion, 



is sufficiently admirable without reducing in the beginning of the next century, 

his r>arty to so miserable a fraction. The when proscription and massacre, luke- 

Calvinists at this time are reckoned by warmness and self-interest, had thinned 

some at one fourth, but more frequently their ranks, they are estimated bv Bcnti- 

at one tenth, of the French nation. Even voglio (ubi supra) at one fifteenth. 
VOL. I. N 



178 DEVIATIONS FROM CEREMONIES. Chap. IV. 

might have "been left to private discretion, not possibly 
without some inconvenience, but with less, as I con- 
ceive, than resulted from rendering their observance in- 
dispensable. Nor should we allow ourselves to be 
turned aside by the common reply, that no concessions 
of this kind would have ultimately prevented the dis- 
union of the church upon more essential differences than 
these litigated ceremonies ; since the science of policy, 
like that of medicine, must content itself with devising 
remedies for immediate danger, and can at best only 
retard the progress of that intrinsic decay which seems 
to be the law of all things human, and through which 
every institution of man, like his earthly frame, must 
one day crumble into ruin. 

The repugnance felt by a large part of the protestant 

clergy to the ceremonies with which Elizabeth 

ness of many would not consent to dispense, showed itself 

with^the 7 ^ n ^regular transgressions of the uniformity 

established prescribed by statute. Some continued to wear 

ceremonies. ^ habita> others laid them agide . the com . 

municants received the sacrament sitting, or standing, 
or kneeling, according to the minister's taste ; some 
baptized in the font, others in a basin ; some with the 
sign of the cross, others without it. The people in 
London and other towns, siding chiefty with the male- 
contents, insulted such of the clergy as observed the 
prescribed order. q Many of the bishops readily connived 
at deviations from ceremonies which they disapproved. 
Some, who felt little objection to their use, were against 
imposing them as necessary/ And this opinion, which 
led to very momentous inferences, began so much to 
prevail, that we soon find the objections to conformity 
more grounded on the unlawfulness of compulsory regu- 
lations in the church prescribed by the civil power, 
than on any special impropriety in the usages them- 
selves. But this principle, which perhaps the scrupulous 
party did not yet very fully avow, was altogether in- 
compatible with the supremacy vested in the queen, of 
which fairest flower of her prerogative she was abund- 

"1 Strype's Parker, j 152, 153. Collier, Wells, for having made a man do penance 

508. In the Lansdowne Collection, vol. for adultery in a square cap. 

viii. 47, is a letter from Parker, April, r Strype's Parker, 157, 173. 
1565, complaining of Turner, dean of 



t 



Eliz.— Puritans. INCREASE OF PURITAN MALECONTENTS. 179 

antly tenacious. One thing was evident, that the puritan 
malecontents were growing every day more numerous, 
-;> more determined, and more likely to win over the 
generality of those who sincerely favoured the protestant 
cause. There were but two lines to be taken ; either to 
relax and modify the regulations which gave offence, or 
to enforce a more punctual observation of them. It 
seems to me far more probable that the former course 
would have prevented a great deal of that mischief 
which the second manifestly aggravated. For in this 
early stage the advocates of a simpler ritual had by no 
means assumed the shape of an embodied faction, which 
concessions, it must be owned, are not apt to satisfy, 
but numbered the most learned and distinguished por- 
tion of the hierarchy. Parker stood nearly alone on the 
other side, but alone more than an equipoise in the 
balance, through his high station, his judgment in 
matters of policy, and his knowledge of the queen's dis- 
position. He had possibly reason to apprehend that 
Elizabeth, irritated by the prevalent humour for altera- 
tion, might burst entirely away from the protestant 
side, or stretch her supremacy to reduce the church into 
a slavish subjection to her caprice." This might induce 
a man of his sagacity, who took a far wider view of civil 
affairs than his brethren, to exert himself according to 
her peremptory command for universal conformity. But 
it is not easy to reconcile the whole of his conduct to 
this supposition ; and in the copious memorials of Strype 
we find the archbishop rather exciting the queen to 
rigorous measures against the puritans than standing in 
need of her admonition.' 

The unsettled state of exterior religion which has 

8 This apprehension of Elizabeth's tak- the queen to proceed. Her wavering 

ing a disgust to protestantism is intimated conduct, partly owing to caprice, partly 

in a letter of bishop Cox, Strype's Parker, to insincerity, was naturally vexatious 

229. to a man of his firm and ardent temper. 

* Parker sometimes declares himself Possibly he might dissemble a little in 

willing to see some indulgence as to the w-riting to Cecil, who was against driving 

habits and other matters ; but the queen's the puritans to extremities. But, on the 

commands being peremptory, he had review of his whole behaviour, he must be 

thought it his duty to obey them, though reckoned, and always has been reckoned, 

forewarning her that the puritan minis- the most severe disciplinarian of Eliza- 

ters would not give way : 225, 227. This, beth's first hierarchy, though more vio* 

however, is not consistent with other lent men came afterwards, 
passages, where he appears to importune 

24 2 



180 ENFORCEMENT OF CONFORMITY. Chap. IV. 

been mentioned lasted till 1565. In the beginning of 
Conformity that year a determination was taken by the 
the°arch- by °i ueen > or rather perhaps the archbishop, to put 
Wshop . a stop to all irregularities in the public service. 
df*posiUonT""He set forth a book called Advertisements, 
of others, containing orders and regulations for the dis- 
cipline of the clergy. -f- This modest title was taken in 
consequence of the queen's withholding her sanction of 
its appearance, through Leicester's influence." The pri- 
mate's next step was to summon before the ecclesiastical 
commission Sampson, dean of Christchurch, and Hum- 
phrey, president, of Magdalen college, Oxford, men of 
signal nonconformity, but at the same time of such 
eminent reputation that, when the law took its course 
against them, no other offender could hope for indul- 
gence. On refusing to wear the customary habits, 
Sampson was deprived of his deanery; but the other 
seems to have been tolerated." This instance of severity, 
as commonly happens, rather irritated than intimidated 
the puritan clergy, aware of their numbers, their popu- 
larity, and their powerful friends, but above all sustained 
by their own sincerity and earnestness. Parker had 
taken his resolution to proceed in the vigorous course 
he had begun. He obtained from the queen a procla- 
mation, peremptorily requiring a conformity in the use 
of the clerical vestments and other matters of discipline. 
The London ministers, summoned before himself and 
their bishop Grindal, who did not very willingly co- 
operate with his metropolitan, were called upon for a 
promise to comply with the legal ceremonies, which 
thirty-seven out of ninety-eight refused to make. They 
were in consequence suspended from their ministry, and 
their livings put in sequestration. But these unfor- 
tunately, as was the case in all this reign, were the most 
conspicuous both for their general character and for 
their talent in preaching/ 

Whatever deviations from uniformity existed within 
the pale of the Anglican church, no attempt had hitherto 

u Strype's Annals, 416. Life of Parker, Parker, 184. Sampson had refused a 

159. Some years after these Advertise- bishopric on account of these ceremonies, 

ments obtained the queen's sanction, and Burnet, iii. 292. 

got the name of Articles and Ordinances. y Life of Parker, 214. Strype says, p. 

Id. 160. 223,that the suspended ministers preached 

x Strype's Annals, 416, 430. Life of again after a little time by connivance. 



Eliz. - Puritans. SEPARATE CONVENTICLES. 181 

been made to form separate assemblies ; nor could it be 
deemed necessaiy while so much indulgence had been 
conceded to the scrupulous clergy. But they were now 
reduced to determine whether the imposition of those 
rites they disliked would justify, or render necessary, 
an abandonment of their ministiy. The bishops of that 
school had so far overcome their repugnance, as not only 
to observe the ceremonies of the church, but, in some 
instances, to employ compulsion towards others. 2 A 
more unexceptionable, because more disinterested, judg- 
ment was pronounced by some of the Swiss reformers, to 
whom our own paid great respect — Beza, Gualter, and 
Bullinger; who, while they regretted the continuance 
of a few superfluous rites, and still more the severity 
used towards good men, dissuaded their friends from 
deserting their vocation on that account. Several of 
the most respectable opponents of the ceremonies were 
equally adverse to any open schism." But the ani- 
mosities springing from heated zeal, and the smart of 
what seemed oppression, would not suffer the English 
puritans generally to acquiesce in such temperate coun- 
sels. They began to form separate conventicles in 
London, not ostentatiously indeed, but of course without 
the possibility i)f eluding notice. It was doubtless 
worthy of much consideration whether an established 
church-government could wink at the systematic disre- 
gard of its discipline by those who were subject to its 
jurisdiction and partook of its revenues. And yet there 
were many important considerations, derived from the 
posture of religion and of the state, which might induce 
cool-headed men to doubt the expediency of too much 
straitening the reins. But there are few, I trust, who 



1 Jewell is said to have become strict from their own, as to the necessity of 

in enforcing the use of the surplice. An- baptism. In Strype's Annals, 501, we 

nals, 421. have the form of an oath taken by all 

B Strype's Annals, i. 423, ii. 316; Life midwives to exercise their calling with- 

of Parker, 243, 348. Burnet, iii. 310, out sorcery or superstition, and to bap- 

325, 337. Bishops Grindal and Horn tize with the proper words. It was 

wrote to Zurich, saying plainly it was abolished by James I. 

not their fault that the habits were not Beza was more dissatisfied than the 

laid aside, with the cross in baptism, the Helvetic divines with the state of the 

use of organs, baptism by women, &c, English church — Annals, i. 452 ; Collier 

p. 314. This last usage was much in- 503 — but dissuaded the puritans from 

veighed against by the Calvinists, because separation, and advised them rather to 

it involved a theological tenet differing comply with the ceremonies. Id. 511. 



182 AFFAIR AT PLUMMER'S HALL. Chap. IV. 

can hesitate to admit that the puritan clergy, after being 
excluded from their benefices, might still claim from a 
just government a peaceful toleration of their particular 
worship. This it was vain to expect from the queen's 
arbitrary spirit, the imperious humour of Parker, and 
that total disregard of the rights of conscience which 
was common to all parties in the sixteenth century. 
The first instance of actual punishment inflicted on pro- 
testant dissenters was in June, 1567, when a company \ 
of more than one hundred were seized during their 
religious exercises at Plummer's Hall, which they had j 
hired on pretence of a wedding, and fourteen or fifteen ' 
of them were sent to prison. b They behaved on their 
examination with a rudeness, as well as self-sufficiency, 
that had already begun to characterise the puritan 
faction. But this cannot excuse the fatal error of mo- 
lesting men for the exercise of their own religion. 

These coercive proceedings of the archbishop were 
feebly seconded, or directly thwarted, by most leading 
men both in church and state. Grindal and Sandys, 
successively bishops of London and archbishops of York, 
were naturally reckoned at this time somewhat favour- 
able to the nonconforming ministers, whose scruples 
they had partaken. Parkhurstand Pilkington, bishops of 
Norwich and Durham, were openly on their side. They 
had still more effectual support in the queen's council. 
The earl of Leicester, who possessed more power than 
any one to sway her wavering and capricious temper, 
the earls of Bedford, Huntingdon, and Warwick, re- 
garded as the steadiest protestants among the aristocracy, 
the wise and grave lord keeper Bacon, the sagacious 
Walsingham, the experienced Sadler, the zealous Knollys, 
considered these objects of Parker's severity either as 
demanding a purer worship than had been established 
in the church, or at least as worthy by their virtues 
and services of more indulgent treatment.* 1 Cecil him- 
self, though on intimate terms with the archbishop, and 
concurring generally in his measures, was not far re- 
moved from the latter way of thinking, if his natural 

b Strype's Life of Parker, 242. Life d Id. 226. The church had but two or 

of Grindal, 114. three friends, Strype says, in the council 

c Burnet, iii. 316. Strype's Parker, about 1572, of whom Cecil was the chief. 

155, et alibi. Id. 388. 



Eliz.— Puritans. APPOINTMENT OF LAYMEN. 



183 



caution and extreme dread at this juncture of losing the 
queen's favour had permitted him more unequivocally 
to express it. Those whose judgment did not incline 
them towards the puritan notions respected the scruples 
of men in whom the reformed religion could so implicitly 
confide. They had regard also to the condition of the 
church. The far greater part of its benefices were sup- 
plied by conformists of very doubtful sincerity, who 
would resume their mass-books with more alacrity than 
they had cast them aside. 8 Such a deficiency of pro- 
testant clergy had been experienced at the queen's 
accession, that for several years it was a common practice 
to appoint laymen, usually mechanics, to read the service 
in vacant churches/ These were not always wholly 
illiterate ; or if they were, it was no more than might be 
said of the popish clergy, the vast majority of whom 
were destitute of all useful knowledge, and could read 
little Latin. g Of the two universities, Oxford had become 



e Burnet says, on the authority of the 
visitors' reports, that, " out of 9400 bene- 
ficed clergymen, not more than about 
200 refused to conform. This caused for 
some years just apprehensions of the 
danger into which religion was brought 
by their retaining their affections to the 
old superstition; so that," he proceeds, 
" if queen Elizabeth had not lived so 
long as she did, till all that generation 
was dead and a new set of men better 
educated and principled were grown up 
and put in their rooms ; and if a prince 
of another religion had succeeded before ! 
that time, they had probably turned about 
again to the old superstition as nimbly 
as they had done before in queen Mary's 
days." Vol. ii. p. 401. It would be easy 
to multiply testimonies out of Strype to 
the papist inclinations of a great part of 
the clergy in the first part of this reign. 
They are said to have been sunk in 
superstition and looseness of living. An- 
nals, i. 166. 

fStrype's Annals, 138, 111. Collier, 
436, 465. This seems to show that more 
churches were empty by the desertion of 
popish incumbents than the foregoing 
note would lead us to suppose. 1 believe 
that many went off to foreign parts from 
time to time who had complied in 1559, 
and others were put out of their livings. 
The Roman catholic writers make out 



a longer list than Burnet's calculation 
allows. 

It appears from an account sent in to 
the privy council by Parkhurst, bishop 
of Norwich, in 1562, that in his diocese 
more than one third of the benefices were 
vacant Annals, i. 323. But in Ely, 
out of 152 cures, only 52 were served in 
1560. L. of Parker, 72. 

6 Parker wrote in 1561 to the bishops 
of his province, enjoining them to send 
him certificates of the names and quali- 
ties of all their clergy ; one column, in 
the form of certificate, was for learning : 
" And this," Strype says, " was com- 
monly set down — Latinfe aliqua verba 
intelligit, Latine utcunque intelligit, 
Latine pauca intelligit," &c. Sometimes, 
however, we find doctus. L. of Parker, 
95. But if the clergy could not read the 
language in which their very prayers 
were composed, what other learning or 
knowledge could they have? Certainly 
none ; and even those who had gone far 
enough to study the school logic and 
divinity do not deserve a much higher 
place than the wholly uninstructed. The 
Greek tongue was never generally taught 
in the universities or public schools till 
the Reformation, and perhaps not so soon. 

Since this note was written, a letter 
of Gibson has been published in Pepys' 
Memoirs, vol. ii. p. 154, mentioning a 



184 



STATE OF THE TWO UNIVERSITIES. Chai>. IV. 



so strongly attached to theKomish side during the late 
reign, that, after the desertion or expulsion of the most 
zealous of that party had almost emptied several colleges, 
it still for many years abounded with adherents to the 
old religion. 11 But at Cambridge, which had been equally 
popish at the queen's accession, the opposite faction soon 
acquired the ascendant. The younger students, im- 
bibing ardently the new creed of ecclesiastical liberty, 
and excited by puritan sermons, began to throw oif their 
surplices, and to commit other breaches of discipline, 
from which it might be inferred that the generation to 



catalogue he had found of the clergy in 
the archdeaconry of Middlesex, a.d. 1563, 
with their qualifications annexed. Three 
only are described as docti Latine et 
Greece ; twelve are called docti simply ; 
nine Latine docti ; thirty-one Latine 
mediocriter intelligentes ; forty-two La- 
tine perperam, utcunque aliquid, pauca 
verba, &c, intelligentes ; seventeen are 
non docti or indocti. If this was the 
case in London, what can we think of 
more remote parts ? 

h In the struggle made for popery at 
the queen's accession, the lower house of 
convocation sent up to the bishops five 
articles of faith, all strongly Roman 
catholic. These had previously been 
transmitted to the two universities, and 
returned with the hands of the greater 
part of the doctors to the first four. The 
fifth they scrupled, as trenching too much 
on the queen's temporal power. Burnet, 
ii. 38S, iii. 269. 

Strype says the universities were so 
addicted to popery, that for some years 
few educated in them were ordained. 
Life of Grindal, p. 50. And Wood's 
Antiquities of the University of Oxford 
contains many proofs of its attachment to 
the old religion. In Exeter College, as 
late -as 1578, there were not above four 
protestants out of eighty, "all the rest 
secret or open Roman affectionaries." 
These chiefly came from the west, " where 
popery greatly prevailed, and the gentry 
were bred up in that religion." Strype's 
Annals, ii. 539. But afterwards Wood 
complains, " through the influence of 
Humphrey and Reynolds (the latter of 
whom became divinity lecturer on secre- 
tary Walsingham's foundation in 1586), 



the disposition of the times, and the long 
continuance of the earl of Leicester, the 
principal patron of the puritanical fac- 
tion, in the place of chancellor of Oxford, 
the face of the university was so much 
altered that there was little to be seen in 
it of the church of England, according to 
the principles and positions upon which 
it was first reformed." Hist, of Oxford, 
vol. ii. p. 228. Previously, however, to 
this change towards puritanism, the uni- 
versity had not been Anglican, but popish ; 
which Wood liked much better than the 
first, and nearly as well as the second. 

A letter from the university of Oxford 
to Elizabeth on her accession (Heme's 
edition of Roper's Life of More, p. 173) 
shows the accommodating character of 
these academies. They extol Mary as 
an excellent queen, but are consoled by 
the thought of her excellent successor. 
One sentence is curious : " Cum patri, 
fratri, sorori.nihil fuerit republic^ carius, 
religixme optatius, vera glorift dulcius ; 
cum in hac familia Ikb laudes floruerint 
vehementer confidimus, &c, qua ejusdem 
stirpis sis, easdem cupidissime prosecu- 
turam." It was a singular train of com- 
plaisance to praise Henry's, Edward's, 
and Mary's religious sentiments in the 
same breath; but the queen might at 
least learn this from it, that, whether she 
fixed on one of their creeds, or devisi <1 a 
new one for herself, she was sure of the 
acquiescence of this ancient and learned 
body. A preceding letter to cardinal 
Pole, in which the times of Henry and 
Edward are treated more cavalierly, 
seems by the style, which is very elegant, 
to have been the production of the same 
pen. 



Eliz.— Puritans. THOMAS CARTWRIGHT. 185 

come would not be less apt for innovation than the 
present.' 

The first period in the history of puritanism includes 
the time from the queen's accession to 1570, 
during which the retention of superstitious determined 
ceremonies in the church had been the sole a^ 1 ^' 
avowed ground of complaint. But when these led by 
obnoxious rites came to be enforced with artwn s it 
unsparing rigour, and even those who voluntarily re- 
nounced the temporal advantages of the establishment 
were hunted from their private conventicles, they began 
to consider the national system of ecclesiastical regimen 
as itself in fault, and to transfer to the institution of 
episcopacy that dislike which they felt for some of the 
prelates. The ostensible founder of this new school 
(though probably its tenets were by no means new to 
many of the sect) was Thomas Cartwright, the Lady. 
Margaret's professor of divinity at Cambridge. He began 
about 1570 to inculcate the unlawfulness of any form 
of church-government, except what the apostles had 
instituted, namely, the presbyterian. A deserved re- 
putation for virtue, learning, and acuteness, an ardent 
zeal, an inflexible self-confidence, a vigorous, rude, and 
arrogant style, marked him as the formidable leader of a 
religious faction. k In 1572 he published his celebrated 
Admonition to the Parliament, calling on that assembly 
to reform the various abuses subsisting in the _ 
church. In this treatise such a hardy spirit nature of 
of innovation was displa} T ed, and schemes of mstenets - 
ecclesiastical policy so novel and extraordinary were 

' The fellows and scholars of St. John's nals, i. 441. Life of Parker, 194. Cam- 
College, to the number of three hundred, bridge had, however, her catholics, as 
threw off their hoods and surplices, in Oxford had her puritans, of whom Dr. 
1565, without any opposition from their Caius, founder of the college that bears 
master, till Cecil, as chancellor of the his name, was among the most remark- 
university, took up the matter, and in- able. Id. 200. The chancellors of Ox- 
sisted on their conformity to the esta- ford and Cambridge, Leicester and Cecil, 
Wished regulations. This gave much dis- kept a very strict hand over them, espe- 
satisfaction to the university; not only daily the latter, who seems to have acted 
the more intemperate party, but many as paramount visitor over every college, 
heads of colleges and grave men, among making them reverse any act which he 
whom we are rather surprised to find the disapproved. ■ Strype, passim, 
name of Whitgift, iuterceding with their k Strype's Annals, i. 583. Life 
chancellor for some mitigation as to these of Parker, 312, 347. Life of Whitgift, 
unpalatable observances. Strype's An- 27. 



186 ECCLESIASTICAL INDEPENDENCE. Chap. IV. 

developed, that it made a most important epoch in the 
contest, and rendered its termination far more improbable. 
The honr for liberal concessions had been suffered to 
pass away ; the archbishop's intolerant temper had taught 
men to question the authority that oppressed them, till 
the battle was no longer to be fought for a tippet and a 
surplice, but for the whole ecclesiastical hierarchy, inter- 
woven as it was with the temporal constitution of 
England. 

It had been the first, measure adopted in throwing off 
the yoke of Eome to invest the sovereign with an 
absolute control over the Anglican church ; so that no 
part of its coercive discipline could be exercised but 
by his authority, nor any laws enacted for its govern- 
ance without his sanction. This supremacy, indeed, 
both Henry VIII. and Edward VI. had carried so far, 
that the bishops were reduced almost to the rank of 
temporal officers taking out commissions to rule their 
dioceses during the king's pleasure ; and Cranmer had 
prostrated at the feet of Henry those spiritual functions 
which have usually been reckoned inherent in the order 
of clergy. Elizabeth took some pains to soften, and 
almost explain away, her supremacy, in order to con- 
ciliate the catholics ; while, by means of the High 
Commission court, established by statute in the first 
year of her reign, she was practically asserting it with 
no little despotism. But the avowed opponents of this 
prerogative were hitherto chiefly those who looked to 
Eome for another head of their church. The disciples 
of Cartwright now learned to claim an ecclesiastical 
independence, as unconstrained as any that the Bomish 
priesthood in the darkest ages had usurped. " No civil 
magistrate in councils or assemblies for church matters," 
he says in his Admonition, " can either be chief- 
moderator, over-ruler, judge, or determiner ; nor has he 
such authority as that, without his consent, it should 
not be lawful for ecclesiastical persons to make any 
church" orders or ceremonies. Church matters ought 
ordinarily to be handled by church officers. The 
principal direction of them is by God's ordinance com- 
mitted to the ministers of the church and to the eccle- 
siastical governors. As these meddle not with the 
making civil laws, so the civil magistrate ought not to 



Eliz.— Puritans. INFATUATED ARROGANCE. 187 

ordain ceremonies, or determine controversies in the 
church, as long as the}' do not intrench upon his 
temporal authority. 'Tis the prince's province to protect 
and defend the councils of his clergy, to keep the peace, 
to see their decrees executed, and to punish the con- 
temners of them ; but to exercise no spiritual juris- 
diction. " m " It must be remembered," he says in 
another place, " that civil magistrates must govern the 
church according to the rules of God, prescribed in his 
word ; and that, as they are nurses, so they be servants 
unto the church ; and as they rule in the church, so they 
must remember to submit themselves unto the church, 
to submit their sceptres, to throw down their crowns 
before the church, yea, as the prophet speaketh, to lick 
the dust off the feet of the church." 11 It is difficult to 
believe that I am transcribing the words of a protestant 
writer; so much does this passage call to mind the tones of 
infatuated arrogance which had been heard from the lips 
of Gregory VII. and of those who trod in his footsteps." 
The strength of the protestant party had been derived, 
both in Germany and in England, far less from their 
superiority in argument, however decisive this might 
be, than from that desire which all classes, and especially 
the higher, had long experienced to emancipate them- 
selves from the thraldom of ecclesiastical jurisdiction. 
For it is ever found that the generality of mankind do not 



m Cartwright's Admonition, quoted in master; he had himself become a sort 

Real's Hist, of Puritans, i. 88. of prophet-king at Geneva. And Collier 

Madox's Vindication of Church of quotes passages from Knox's Second 

England against Neal, p. 122. This Blast inconsistent with any government, 

■writer quotes several very extravagant except one slavishly subservient to the 

passages from Cartwright, which go to church. P. 444. The non-juring his- 

prove irresistibly that he would have torian holds out the band of fellowship 

made no compromise short of the over- to the puritans he abhors, when they 

throw of the established church (p. ill, preach up ecclesiastical independence. 

&c.) " As to you, dear brethren," he said Collier liked the royal supremacy as little 

in a puritan tract of 1570, "whom God as Cartwright; and in giving an account 

hath called into the brunt of the battle, of Bancroft's attack on the nonconfor- 

the Lord keep you constant, that ye yield mists for denying it, enters upon a long 

neither to toleration, neither to any other discussion in favour of an absolute eman- 

subtle persuasions of dispensations and cipation from the control' of laymen. P. 

licences, which were to fortify their 610. He does not even approve the de- 

Romish practices; but, as you fight the termination of the judges in Cawdrey's 

Lord's fight, be valiant." Madox, p. case (5 Coke's Reports), though against 

287. the nonconformists, as proceeding on a 

° These principles had already been wrong principle of setting up the state 

broached by those who called Calvin above the church. P. 634. 



188 SCOPE OF CARTWRIGHT'S DECLARATION. Chap. IV. 

so much as give a hearing to novel systems in religion, 
till they have imbibed, from some cause or other, a secret 
distaste to that in which they have been educated. It 
was therefore rather alarming to such as had an acquaint- 
ance with ecclesiastical history, and knew the encroach- 
ments formerly made by the hierarchy throughout Europe, 
encroachments perfectly distinguishable from those of the 
Eoman see, to perceive the same pretensions urged, and 
the same ambition and arrogance at work, which had 
imposed a yoke on the necks of their fathers. With what- 
ever plausibility it might be maintained that a connexion 
with temporal magistrates could only corrupt the purity 
and shackle the liberties of a Christian church, this 
argument was not for them to urge who called on those 
magistrates to do the church's bidding, to enforce its 
decrees, to punish its refractory members ; and while 
they disdained to accept the prince's co-operation as 
their ally, claimed his service as their minister. The 
protestant dissenters since the revolution, who have 
almost unanimously, and, I doubt not, sincerely, de- 
clared their averseness to any religious establishment, 
especially as accompanied with coercive power, even 
in favour of their own sect, are by no means chargeable 
with these errors of the early puritans. But the scope 
of Cartwright's declaration was not to obtain a toleration 
for dissent; not even, by abolishing the whole eccle- 
siastical polity, to place the different professions of 
religion on an equal footing; but to substitute his 
own model of government, the one, exclusive, unappeal- 
able standard of obedience, with all the endowments, 
so far as applicable to its frame, of the present church, 
and with all the support to its discipline that the civil 
power could afford. p 

We are not however to conclude that every one, or 

P The school of Cartwright were as to remain for ever, and not to be eon- 
little disposed as the episcopalians to see verted to any private use. The lay, on 
the laity fatten on church property, the contrary, think it enough for the 
Bancroft, in his famous sermon preached clergy to fare as the apostles did. Cart- 
at Paul's Cross in 1588 (p. 24), divides wright did not spare those who longed 
the puritans into the clergy factious and to pull down bishoprics for the sake of 
the lay factious. The former, he says, plundering them, and charged those who 
contend and lay it down in their snppli- held impropriations with sin. Bancroft 
cation to parliament in 1585, that things takes delight in quoting his bitterphrases 
once dedicated to a sacred use ought so from the Ecclesiastical Discipline. 



Eliz.— Puritans. STATE OF PARTIES. 189 

even the majority, of those who might be counted on 
the puritan side in Elizabeth's reign, would have sub- 
scribed to these extravagant sentences of Cartwright, or 
desired to take away the legal supremacy of the crown. q 
That party acquired strength by the prevailing hatred 
and dread of popery, and by the disgust which the 
bishops had been unfortunate enough to excite. If the 
language which I have quoted from the puritans breathed 
a spirit of ecclesiastical usurpation that might one day 
become dangerous, many were of opinion that a spirit 
not less mischievous in the present hierarchy, under the 
mask of the queen's authority, was actually manifesting 
itself in deeds of oppression. The upper ranks among 
the laity, setting aside courtiers, and such as took little 
interest in the dispute, were chiefly divided between 
those attached to the ancient church and those who 
wished for further alterations in the new. I conceive 
the church of England party, that is the party adverse 
to any species of ecclesiastical change, to have been the 
least numerous of the three during this reign ; still 
excepting, as I have said, the neutrals, who commonly 
make a numerical majority, and are counted along with 
the dominant religion/ But by the act of the fifth of 

1 The old friends and protectors of gion than is the protestant, upon a certain 
our reformers at ^Zurich, Bullinger and general persuasion that his profession 
Gualter, however they had favoured the is the more perfect, especially in great 
principles of the first nonconformists, towns, where preachers have made more 
write in strong disapprobation of the imprwssion in the artificers and burghers 
innovators of 151 4. Strype's Annals, ii. than in the country people. And among 
316. And Fox, the martyrologist, a re- the protestants themselves, all those that 
fuser to conform, speaks, in a remarkable were less interested in ecclesiastical liv- 
letter quoted by Fuller in his Church ings, or other preferments depending on 
History, p. 107, of factiosa ilia Purita- the state, are more affected commonly to 
norum capita, saying that he is totus ab the puritans, or easily are to be induced 
iis alienus, and unwilling perbacchari in to pass that way for the same reason." 
episcopos. The same is true of Bernard Doleman's Conference about the next 
Gilpin, who disliked some of the cere- Succession to the Crown of England, p. 
monies, and had subscribed the articles 242. And again : " The puritan party at 
with a reservation, " so far as agreeable home, in England, is thought to be most 
to the word of God ;" but was wholly vigorous of any other, that is to say, most 
opposed to the new reform of church ardent, quick, bold, resolute, and to have 
discipline. Carleton's Life of Gilpin, and a great part of the best captains and sol- 
Wordsworth's Ecclesiastical Biography, diers on their side, which is a point of no 
vol. iv. Neal has not reported the matter small moment." P. 244. I do not quote 
faithfully. these passages out of trust in father Per- 

r "The puritan," says Persons the sons, but because they coincide with much 
Jesuit, in 1594, " is more generally besides that has occurred to me in read- 
favoured throughout the realm with all ing, and especially with the parliamentary 
those which are not of the Roman reli- proceedings of this reign. The following 



190 PLURALITIES. Chap. IV. 

Elizabeth, Eoman catholics were excluded from the 
house of commons ; or, if some that way affected might 
occasionally creep into it, yet the terror of penal laws 
impending over their heads would make them extremely 
cautious of betraying their sentiments. This contributed, 
with the prevalent tone of public opinion, to throw such 
a weight into the puritanical scale in the commons, as it 
required all the queen's energy to counterbalance. 

In the parliament that met in April, 1571, a few days 
only after the commencement of the session, 
supported Mr. Strickland, " a grave and ancient man of 
in the great zeal," as the reporter styles him, began 
ommons , ~^ q a ttack by a long but apparently temperate 
speech on the abuses of the church, tending only to 
the retrenchment of a few superstitions, as they were 
thought, in the liturgy, and to some reforms in the 
disposition of benefices. He proceeded to bring in a 
bill for the reformation of the common prayer, which 
was read a first time. Abuses in respect to benefices 
appear to have been a copious theme of scandal. The 
power of dispensation, which had occasioned so much 
clamour in former ages, instead of being abolished or 
even reduced into bounds at the Reformation, had been 
transferred entire from the pope to the king and arch- 
bishop. And, after the council of Trent had effected 
such considerable reforms in the catholic discipline, it 
seemed a sort of reproach to the protestant church of 
England that she retained all the dispensations, the 
exemptions, the pluralities, which had been deemed the 
peculiar corruptions of the worst times of popery. 9 



observation will confirm (what may the discontented were a small faction, 
startle some readers) that the puritans, who by some unaccountable means, 
or at least those who rather favoured in despite of the government and the 
them, had a majority among the protest- nation, formed a majority of all par- 
ant gentry in the queen's days. It is liaments under Elizabeth and her two 
agreed on all hands, and is quite mani- successors. 

fest, that they predominated in the house 8 Burnet, iii. 335. Pluralities are still 
of commons. But that house was com- the great abuse of the church of England; 
posed, as it has ever been, of the principal and the rules on this head are so corn- 
landed proprietors, and as much repre- plicated and unreasonable that scarce any 
sented the general wish of the community one can remember them. It would be 
when it demanded a further reform in difficult to prove that, with a view to 
religious matters as on any other subject, the interestsof religion amongthe people, 
One would imagine, by the manner in or of the clergy themselves, taken as a 
which some express themselves, that body, any pluralities of benefices with 



Eliz.— Puritans. ARTICLES OF THE CHURCH. 191 

In the reign of Edward VI., as I have already- 
mentioned, the canon law being naturally obnoxious 
from its origin and character, a commission was appointed 
to draw up a code of ecclesiastical laws. This was 
accordingly compiled, but never obtained the sanction 
of parliament: and though some attempts were made, 
and especially in the commons at this very time, to 
bring it again before the legislature, our ecclesiastical 
tribunals have been always compelled to borrow a 
great part of their principles from the canon law : one 
important consequence of which may be mentioned by 
way of illustration ; that they are incompetent to grant a 
divorce from the bond of marriage in cases of adultery, 
as had been provided in the refoimation of ecclesiastical 
laws compiled under Edward VI. A disorderly state of 
the church, arising partly from the want of any fixed 
rules of discipline, partly from the negligence of some 
bishops and simony of others, but above all from 
the rude state of manners and general ignorance of 
the clergy, is the common theme of complaint in 
this period, and aggravated the increasing disaffection 
towards the prelacy. A bill was brought into the 
commons to take away the granting of licences and 
dispensations by the archbishop of Canterbury. But 
the queen's interference put a stop to this measure.' 

The house of commons gave, in this session, a more 
forcible proof of its temper in ecclesiastical concerns. 
The articles of the English church, originally drawn up 
under Edward VI., after having undergone some altera- 
tion, were finally reduced to their present form by the 
convocation of 1562. But it seems to have been thought 
necessary that they should have the sanction of parlia- 
ment, in order to make them binding on the clergy. 
Of these articles the far greater portion relate to matters 
of faith, concerning which no difference of opinion had 
as yet appeared. Some few, however, declare the law- 
fulness of the established form of consecrating bishops 
and priests, the supremacy of the crown, and the power 
of the church to order rites and ceremonies. These 

cnre of souls ought to remain, except of is none at all. [1827.] The case is now 

small contiguous parishes. But with a far from the same. — 1845. 

view to the interests of some hundred « D'Ewes, p. 156. Parliament Hist i. 

well-connected ecclesiastics, the difficulty 733, &c 



192 MR. WENTWORTH. Chap. IV. 

involved the main questions at issue ; and the puritan 
opposition was strong enough to withhold the approbation 
of the legislature from this part of the national symbol. 
The act of 13 Eliz. c. 12, accordingly enacts that every 
priest or minister shall subscribe to all the articles of 
religion which only concern the confession of the true 
Christian faith, and the doctrine of the sacraments, com- 
prised in a book entitled ' Articles whereupon it was 
agreed,' &c. That the word only was inserted for the 
sake of excluding the articles which established church 
authority and the actual discipline, is evident from a 
remarkable conversation which Mr. Wentworth, the most 
distinguished asserter of civil liberty in this reign, relates 
himself in a subsequent session (that of 1575) to have 
held on the subject with archbishop Parker. " I was," 
he says, " among others, the last parliament, sent for 
unto the archbishop of Canterbury, for the articles of 
religion that then passed this house. He asked us, 
' Why we did put out of the book the articles for 
the homilies, consecration of bishops, and such like?' 
' Surely, sir,' said I, ' because we were so occupied in 
other matters that we had no time to examine them how 
tbey agreed with the word of God.' ' What ! ' said he, 
• surely you mistake the matter ; you will refer your- 
selves wholly to us therein ! ' ' No ; by the faith I bear 
to God,' said I, ' we will pass nothing before we under- 
stand what it is ; for that were but to make you popes : 
make you popes who list,' said I, ' for we will make you 
none.' And sure, Mr. Speaker, the speech seemed to 
me to be a pope-like speech, and I fear least our bishops 
do attribute this of the pope's canons unto themselves ; 
Papa non potest errare." u The intrepid assertion of the 
right of private judgment on one side, and the pretension 
to something like infallibility on the other, which have 
been for more than two centuries since so incessantly 



u D'Ewes, p. 239. Pari. Hist 790. Lenfant makes a very just observation on 

Strype'sLife of Parker, 394. this: "Si la gravite" de l'histoire le per- 

In a debate between cardinal Carvajal mettoit, on diroit avec le comique, Cest 

and Rockisane, the famous Calixtin arch- tout comme ici. 11 y a long terns que le 

bishop of Prague, at the council of Basle, premier de ces mots est le langage de ce 

the former said he would reduce the qu'on appelle VEglise, et que le second 

whole argument to two syllables — Crede. est le lanpage de ce qu'on appelle 

The latter replied he would do the same, Vherisie." Concile de Basle, p. 193. 
and confine himself to two others — Proba. 



Eliz.— Puritans. FIRST CLAUSE OF TWENTIETH ARTICLE. 193 

repeated, are here curiously brought into contrast. As 
to the reservation itself, obliquely insinuated rather than 
expressed in this statute, it proved of little practical 
importance, the bishops having always exacted a sub- 
scription to the whole thirty-nine articles." 

It was not to be expected that the haughty spirit of 
Parker, which had refused to spare the honest scruples 



x Several ministers were deprived, in 
1572, for refusing to subscribe the articles. 
Strype, ii. 186. Unless these were papists, 
which indeed is possible, their objection 
must have been to the articles touching 
discipline ; for the puritans liked the 
rest very well. [The famous dispute 
about the first clause of the 20th article, 
which was idly alleged by the puritans 
to have been interpolated by Laud, is 
settled conclusively enough in Cardwell's 
Synodalia.vol. i. p. 38, 53.— The questions 
are, 1, Whether this clause was formally 
accepted by convocation ; and, 2, Whether 
it was confirmed by parliament It is 
not found in the manuscript, being a 
rough draft of the articles bequeathed by 
Parker to Corpus Christi College, Cam- 
bridge, signed by all the convocation of 
1562; which, notwithstanding the inter- 
lineations, must be taken as a final docu- 
ment, so far as their intentions prevailed. 
Nor is it found in the first English edition, 
that of 1563. It is found, however, in a 
Latin edition of the same year, of which 
one copy exists in the Bodleian Library, 
which belonged to Selden, and is said to 
have been obtained by him from Laud's 
library; though I am not aware how 
this is proved. To this copy is appended 
a parchment, with the signatures of the 
lower house of convocation in 1571, " but 
not in such a manner," says Dr. G, " as 
to prove that it originally belonged to the 
book." This would of course destroy its 
importance in evidence; but I must 
freely avow that ^my own impression on 
inspection was different, though it is very 
possible that I was deceived. It seems 
certainly strange that the lower house of 
convocation should have thus attested a 
single copy of a printed book. 

The supposition of Dr. Lamb, dean of 
Bristol, which Dr. Cardwell seems to 
adopt, is that the queen, by her own 
authority, caused this clause to be in- 
serted after the dissolution of the convo- 
VOL. I. 



cation, and, probably, to be entered on 
the register of that assembly, to which 
Laud refers in his speech in the Star- 
chamber, 1637, but which was burned in 
the Fire of London. We may conjecture 
that Parker had urged .the adoption of 
it upon the convocation without success, 
and had therefore recourse to the supre- 
macy of his sovereign. But, according 
to any principles which have been recog- 
nised in the church of England, the arbi- 
trary nature of that ecclesiastical supre- 
macy, so as to enact laws without consent 
either of convocation or of parliament, 
cannot be admitted ; and this famous 
clause may be said to have wanted legal 
authority as a constitution of the church. 

But there seems no doubt that it 
wanted still more the confirmation of the 
temporal legislature. The statute esta- 
blishing the articles (13 Eliz. c. 12) refers 
to " a book imprinted, intituled Articles, 
whereupon it was agreed by the arch- 
bishops and bishops of both provinces, 
&c," following the title of the English 
edition of 1563, the only one which then 
existed, besides the Latin of the same 
year. And from this we may infer that 
the commons either knew of no such 
clause, or did not mean to confirm it- 
which is consonant to the temper they 
showed on this subject, as may be seen 
in the text. 

In a great majority of editions subse- 
quent to 1571 the clause was inserted; 
and it had doubtless obtained universal 
reception long before Laud. The act of 
uniformity, 13 & 14 Car. 2, c. 4, merely 
refers to 13 Eliz., and leaves the legal 
operation as before. 

It is only to be added that the clause 
contains little that need alarm any one, 
being in one part no more than the 34th 
article, and in the other being suffi- 
ciently secured from misinterpretation by 
the context, as well as by other articles. 
—1845.] 





194 CONDUCT OF WALSIXGHAM. Chap. IV. 

of Sampson and Coverdale, would abate of its rigour 
towards the daring paradoxes of Cartwright. His dis- 
ciples, in truth, from dissatisfied subjects of the church, 
were become her downright rebels, with whom it was 
hardly practicable to make any compromise that would 
avoid a schism, except by sacrificing the splendour and 
jurisdiction of an established hierarchy. The archbishop 
continued, therefore, to harass the puritan ministers, 
suppressing their books, silencing them in churches, 
prosecuting them in private meetings/ Sandys and 
Grindal, the moderate reformers of our spiritual aristo- 
cracy, not only withdrew their countenance from a party 
who aimed at improvement by subversion, but fell, 
according to the unhappy temper of their age, into 
courses of undue severity. Not merely the preachers, 
to whom, as regular ministers, the rules of canonical 
obedience might apply, but plain citizens, for listening 
to their sermons, were dragged before the high com- 
mission, and imprisoned upon any refusal to conform. 2 
Strange that these prelates should not have remembered 
their own magnanimous readiness to encounter suffering 
for conscience sake in the days of Mary, or should 
have fondly arrogated to their particular church that 
elastic force of resolution which disdains to acknowledge 
tyrannous power within the sanctuary of the soul, and 
belongs to the martyrs of every opinion without attesting 
the truth of any ! 

The puritans meanwhile had not lost all their friends 
in the council, though it had become more 
measure by difficult to protect them. One powerful reason 
the council, ^undoubtedly operated on Walsingham and other 
ministers of Elizabeth's court against crushing their 
party ; namely, the precariousness of the queen's life, 
and the unsettled prospects of succession. They had 
already seen in the duke of Norfolk's conspiracy that 
more than half the superior nobility had committed 
themselves to support the title of the queen of Scots. 

y Neal, 187. Sttype's Parker, 325. the privy council gave over, they would 

Parker wrote to Lord Burleigh (June, hinder her majesty's government more 

1573), exciting the council to proceed than they were aware, and much abate 

against some of those men who had been the estimation of their own authorities," 

called before the star-chamber. " He &c. Id. p. 421. Cartwright's Admoni- 

knew them," he said, " to be cowards" — tion was now prohibited to be sold. Ibid, 

a very great mistake — " and if they of z Neal, 210. 



Eliz.— Puritans. INTOLERANCE OF THE BISHOPS. 195 

That title was sacred to all who professed the catholic 
religion, and respectable to a large proportion of the 
rest. But deeming, as they did, that queen a convicted 
adulteress and murderer, the determined enemy of their 
faith, and conscious that she could never forgive those 
who had counselled her detention and sought her death, 
it would have been unworthy of their prudence and 
magnanimity to have gone as sheep to the slaughter, 
and risked the destruction of protestantism under a 
second Mary, if the intrigues of ambitious men, the 
pusillanimity of the multitude, and the specious pretext 
of hereditary right, should favour her claims on a 
demise of the crown. They would have failed perhaps 
in attempting to resist them; but upon resistance I 
make no question that they had resolved. In so awful 
a crisis, to what could they better look than to the 
stern, intrepid, uncompromising spirit of puritanism ; 
congenial to that of the Scottish' reformers, by whose 
aid the lords of the congregation had overthrown the 
ancient religion in despite of the regent Mary of Guise ? 
Of conforming churchmen, in general, they might well 
be doubtful, after the oscillations of the three preceding 
reigns ; but every abhorrer of ceremonies, every rejecter 
of prelatical authority, might be trusted as protestant to 
the heart's core, whose sword would be as ready as his 
tongue to withstand idolatry. Nor had the puritans 
admitted, even in theory, those extravagant notions of 
passive obedience which the church of England had 
thought fit to mingle with her homilies. While the 
victory was yet so uncertain, while contingencies so 
incalculable might renew the struggle, all politic friends 
of the Reformation would be anxious not to strengthen 
the enemy by disunion in their own camp. Thus sir 
Francis Walsingham, who had been against enforcing 
the obnoxious habits, used his influence with the 
scrupulous not to separate from the church on account 
of them ; and again, when the schism had already ensued, 
thwarted, as far as his credit in the council extended, 
that harsh intolerance of the bishops which aggravated 
its mischiefs. 11 

We should reason in as confined a manner as the 



Strype's Annals, i. 433. 

o2 



196 OBJECT OF ELIZABETH'S MINISTERS. Chap. IV. 

puritans themselves, by looking only at the captious 
frivolousness of their scruples, and treating their sect 
either as wholly contemptible or as absolutely mis- 
chievous. We do injustice to these wise councillors of 
the maiden queen when we condemn (I do not mean on 
the maxims only of toleration, but of civil prudence) 
their unwillingness to crush the nonconforming clergy 
by an undeviating rigour. It may justly be said that, 
in a religious sense, it was a greater good to possess a 
well-instructed pious clergy, able to contend against 
popery, than it was an evil to let some prejudices against 
mere ceremonies gain a head. The old religion was by 
no means, for at least the first half of Elizabeth's reign, 
gone out of the minds of the people. The lurking 
priests had great advantages from the attractive nature 
of their faith, and some, no doubt, from its persecution. 
A middle system, like the Anglican, though it was 
more likely to produce exterior conformity, and for that 
reason was, I think, judiciously introduced at the out- 
set, did not afford such a security against relapse, nor 
draw over the heart so thoroughly, as one which ad- 
mitted of no compromise. Thus the sign of the cross in 
baptism, one of the principal topics of objection, may 
well seem in itself a very innocent and decorous cere- 
mony. But if the perpetual use of that sign is one of 
the most striking superstitions in the church of Eome, 
it might be urged, in behalf of the puritans, that the 
people were less likely to treat it with contempt when 
they saw its continuance, even in one instance, so strictly 
insisted upon. I do not pretend to say that this rea- 
soning is right, but that it is at least plausible, and that 
we must go back and place ourselves, as far as we can, 
in those times before we determine upon the whole of 
this controversy in its manifold bearings. The great 
object of Elizabeth's ministers, it must be kept in mind, 
was the preservation of the protestant religion, to which 
all ceremonies of the church, and even its form of dis- 
cipline, were subordinate. An indifferent passiveness 
among the people, a humble trust in authority, how- 
ever desirable in the eyes of churchmen, was not the 
temper which would have kept out the right heir from 
the throne, or quelled the generous ardour of the catholic 
gentry on the queen's decease. 1 



Euz.— Puritans. PROPHESYINGS. 197 

A matter very much- connected with the present 
subject will illustrate the different schemes of Prophosy- 
ecclesiastical policy pursued by the two parties tog 8 - 
that divided Elizabeth's council. The clergy in several 
dioceses set up, with encouragement from their su- 
periors, a certain religious exercise, called prophesyings. 
They met at appointed times to expound and discuss 
together particular texts of Scripture, under the presi- 
dency of a moderator appointed by the bishop, who 
finished by repeating the substance of their debate, with 
his own determination upon it. These discussions were 
in public, and it was contended that this sifting of the 
grounds of their faith and habitual argumentation would 
both tend to edify the people, very little acquainted as 
yet with their religion, and supply in some degree the 
deficiencies of learning among the pastors themselves. 
These deficiencies were indeed glaring, and it is not 
unlikely that the prophesyings might have had a salu- 
tary effect if it had been possible to exclude the pre- 
vailing spirit of the age. It must, however, be evident 
to any one who had experience of mankind, that the 
precise clergy, armed not only with popular topics, but 
with an intrinsic superiority of learning and ability to 
support them, would wield these assemblies at their 
pleasure, whatever might, be the regulations devised for 
their control. The queen entirely disliked them, and 
directed Parker to put them down. He wrote accord- 
ingly to Parkhurst, bishop of Norwich, for that purpose. 
The bishop was unwilling to comply ; and some privy- 
councillors interfered by a letter, enjoining him not to 
hinder those exercises so long as nothing contrary to 
the church was taught therein. This letter was signed 
by sir Thomas Smith, sir Walter Mildmay, bishop 
Sandys, and sir Francis Knollys. It was, in effect, to 
reverse what the archbishop had done. Parker, how- 
ever, who was not easily daunted, wrote again to Park- 
hurst, that, understanding he had received instructions 
in opposition to the queen's orders and his own, he 
desired to be informed what they were. This seems to 
have checked the councillors, for we find that the pro- 
phesyings were now put down. b 

b Strype's Annals, ii. 219, 322 ; Life of Parker, 461. 



198 PROPHESYINGS. Chap. IV. 

Though many will ho of opinion that Parker took a 
statesmanlike view of the interests of the church of 
England in discouraging these exercises, they were 
generally regarded as so conducive to instruction that 
he seems to have stood almost alone in his opposition to 
them. Sandys' name appears to the ahove-mentioned 
letter of the council to Parkhurst. Cox, also, was in- 
clined to favour the prophesyings ; and Grindal, 
who in 1575 succeeded Parker in the see of 
Canterbury, bore the whole brunt of the queen's dis- 
pleasure rather than obey her commands on this subject. 
He conceived that, by establishing strict rules with 
respect to the direction of those assemblies, the abuses, 
which had already appeared, of disorderly debate and 
attacks on the discipline of the church, might be got lid 
of without entirely abolishing the exercise. The queen 
would hear of no middle course, and insisted both that 
the prophesyings should be discontinued and that fewer 
licences for preaching should be granted. For no parish 
priest could, without a licence, preach any discourse 
except the regular homilies ; and this was one of the 
points of contention with the puritans. Grindal steadily 

c [In one of the canons enacted by con- Romish schoolmen or modern sciolists, 

vocation in 1571, and on which rather an It is to be remembered that the exegeti- 

undue stress has been laid in late contro- cal part of divinity was not in the state 

versies, we find a restraint laid on the in which it is at present. Most of the 

teaching of the clergy in their sermons, writers to whom a modern preacher has 

who were enjoined to preach nothing but recourse were unborn. But that the con- 

what was agreeable to scripture, and had temporary reformers were not held in low 

been collected out of scripture by the estimation as guides in scriptural interpre- 

catholic fathers and ancient bishops. Im- tation, appears by the injunction given 

primis videbunt concionatores, ne quid some years afterwards that every clergy- 

unquam doceant pro concione, quod a man should provide himself with a copy 

populo religiose teneri et credi velint, of Bullinger's decades. The authority 

nisi quod consentaneum sit doctrinie given in the above canon to the fathers 

veteris aut novi testamenti, quodque ex was certainly but a presumptive one ; 

ilia ipsa doctrina Cathollci patres et ve- and, such as it was, it was given to each 

tens episcopi collegerint This appears individually, not to the whole body, on 

to have been directed, in the first place, any notion of what has been called catholic 

against those who made use of scholastic consent : since how was a poor English 

authorities and the doctors of the last preacher to ascertain this? The real 

four or five ages, to whom the church question as to the authority of the fathers 

of Rome was fond of appealing; and, in our church is not whether they are 

secondly, against those who, with little not copiously quoted, but whether our 

learning or judgment, set up their own theologians surrendered their own opi- 

interpretations of scripture. Against both nion, or that of their side, in deference to 

these it seemed wise to guard, by direct- such authority when it made against 

ing preachers to the early fathers, whose them. — 1845.] . ^ 

authority was at least better than that of ,. 



Elk.— Puritans. ARCHBISHOP WHITGIFT. 190 

refused to comply with this injunction, and was in con- 
sequence sequestered from the exercise of his jurisdic- 
tion for the space of about five years, till, on his making 
a kind of submission, the sequestration was taken off not 
long before his death. The queen, by circular letters to 
the bishops, commanded them to put an end to the pro- 
phesyings, which were never afterwards renewed.* 1 

Whitgift, bishop of Worcester, a person of a very 
opposite disposition, was promoted, in 1583, to 
the primacy on Grindal's decease. He had 
distinguished himself some years before by an answer 
to Cartwright's Admonition, written with much ability, 
but not falling short of the work it undertook to con- 
fute in rudeness and asperity. 8 It is seldom good policy 
to confer such eminent stations in the church on the 
gladiators of theological controversy, who, from vanity 
and resentment, as well as the course of their studies, 
will always be prone to exaggerate the importance of 
the disputes wherein they have been engaged, and to 
turn whatever authority the laws or the influence of 
their place may give them against their adversaries. 
This was fully illustrated by the conduct of archbishop 
Whitgift, whose elevation the wisest of Elizabeth's 
counsellors had ample reason to regret. In a „. . . 

l o Jiis conduct 

few months after his promotion he gave an in enforcing 
earnest of the rigour he had determined to conformit y- 
adopt by promulgating articles for the observance of 
discipline. One of these prohibited all preaching, read- 
ing, or catechising in private houses, whereto any not 
of the same family should resort, " seeing the same was 
never permitted as lawful under any Christian magis- 
trate." But that which excited the loudest complaints 

d Strype's Life of Grindal, 219," 230, did not disdain to reflect on Cartwright 

272. The archbishop's letter to the queen, for his poverty, the consequence of a 

declaring his unwillingness to obey her scrupulous adherence to his principles, 

requisition, is in a far bolder strain than But the controversial writers of every side 

the prelates were wont to use in this in the sixteenth century display a want 

reign, and perhaps contributed to the of decency and humanity which even our 

severity she showed towards him. Grin- anonymous libellers have hardly matched, 

dal was a very honest, conscientious man, Whitgift was not of much learning, if it 

but too little of a courtier or statesman be true, as the editors of the Biographia 

for the place he filled. He was on the Britannica intimate, that he had no ac- 

point of resigning the archbishopric when quaintance with the Greek language, 

he died ; there had at one time been some This must seem strange to those who 

thoughts of depriving him. have an exaggerated notion of the scho- 

e Strype's Wliitgift, 27, et alibi. He larship of that age. 



200 SUBSCRIPTION. Chap. IV. 

was the subscription to three points, the queen's supre- 
macy, the lawfulness of the common prayer and ordina- 
tion service, and the truth of the whole thirty-nine 
articles, exacted from every minister of the church/ 
These indeed were so far from novelties that it might 
seem rather supererogatory to demand them (if in fact 
the law required subscription to all the articles) ; yet it 
is highly probable that many had hitherto eluded the 
legal subscriptions, and that others had conceived their 
scruples after having conformed to the prescribed order. 
The archbishop's peremptory requisition passed, perhaps 
justly, for an illegal stretch of power. 8 It encountered 
the resistance of men pertinaciously attached to their 
own tenets, and ready to suffer the privations of poverty 
rather than yield a simulated obedience. To suffer, 
however, in silence has at no time been a virtue with 
our protestant dissenters. The kingdom resounded with 
the clamour of those who were suspended or deprived 
of their benefices and of their numerous abettors. 11 They 
appealed from the archbishop to the privy council. The 
gently of Kent and other counties strongly interposed in 
their behalf. They had powerful friends at court, espe- 
cially Knollys, who wrote a warm letter to the arch- 
bishop. 1 But, secure of the queen's support, who was 
now chiefly under the influence of Sir Christopher 
Hatton, a decided enemy to the puritans, Whitgift 

f Strype's Whitgift, 115. not preach, but only read the service, was 

8 Neal, 266. Birch's Memoirs of Eliza- to the others nearly as four to one — the 

beth, vol. i. p. 42, 47, &c preachers being a majority only in Lon- 

ii According to a paper in the appen- don. Id. p. 320. 

dix to Strype's Life of Whitgift, p. 60, This may be deemed by some an in- 

the number of conformable ministers in stance of Neal's prejudice. But that 

eleven dioceses, not including those of historian is not so ill-informed as they 

London and Norwich, the strongholds suppose; and the fact is highly probable, 

of puritanism, was 786 ; that of non- Let it be remembered that there existed 

compilers, 49. But Neal says that 233 few books of divinity in English ; that all 

ministers were suspended in only six books were, comparatively to the value of 

counties, 64 of whom in Norfolk, 60 in money, far dearer than at present ; that 

Suffolk, 38 in Essex: p. 268. The puritans the majority of the clergy were nearly 

formed so much the more learned and illiterate, and many of them addicted to 

diligent part of the clergy, that a great drunkenness and low vices ; above all, 

scarcity of preachers was experienced that they had no means of supplying their 

throughout this reign, in consequence of deficiencies by preaching the discourses 

silencing so many of the former. Thus of others; and we shall see little cause 

in Cornwall, about the year ]578, out for doubting Neal's statement, though 

of 140 clergymen, not one was capable founded on a puritan document, 

of preaching. Neal, p. 245. And, in i Life of Whitgift, 137, et alibi; An- 

general, the number of those who could nals, iii. 183. 



Eliz.— Puritans. HIGH COMMISSION COURT. 201 

relented not a jot of his resolution, and went far greater 
lengths than Parker had ever ventured, or perhaps had 
desired, to proceed. 

The act of supremacy, while it restored all ecclesias- 
tical jurisdiction to the crown, empowered the queen to 
execute it by commissioners appointed under Hi hcom . 
the great seal, in such manner and for such mission 
time as she should direct, whose power should court ' 
extend to visit, correct, and amend all heresies, schisms, 
abuses, and offences whatever, which fall under the 
cognizance and are subject to the correction of spiritual 
authority. Several temporary commissions had sat under 
this act with continually augmented powers before that 
appointed in 1583, wherein the jurisdiction of this 
anomalous court almost reached its zenith. It consisted 
of forty-four commissioners, twelve of whom were 
bishops, many more privy-councillors, and the rest 
either clergymen or civilians. This commission, after 
reciting the acts of supremacy, uniformity, and two 
others, directs them to inquire from time to time, as 
well by the oaths of twelve good and lawful men as by 
witnesses and all other means they can devise, of all 
offences, contempts, or misdemeanors done and com- 
mitted contrary to the tenor of the said several acts and 
statutes ; and also to inquire of all heretical opinions, 
seditious books, contempts, conspiracies, false rumours 
or talks, slanderous words and sayings, &c, contrary to 
the aforesaid laws. Power is given to any three com- 
missioners, of whom one must be a bishop, to punish all 
persons absent from church, according to the act of uni- 
formity, or to visit and reform heresies and schisms 
according to law ; to deprive all beneficed persons 
holding any doctrine contrary to the thirty-nine articles ; 
to punish incests, adulteries, and all offences of the 
kind ; to examine all suspected persons on their oaths, 
and to punish all who should refuse to appear or to 
obey their orders by spiritual censure, or by discre- 
tionary fine or imprisonment; to alter and amend the 
statutes of colleges, cathedrals, schools, and other foun- 
dations, and to tender the oath of supremacy according 
to the act of parliament. 11 

k Neal, 274 ; Strype's Annals, iii. 180. seems to have been a commission granted 
The germ of the high commission court by Mary (Feb. 1557) to certain bishops 



202 DISSATISFACTION OF LORD BURLEIGH. Chap. IV. 

Master of such tremendous machinery, the archbishop 
proceeded to call into action one of its powers, contained 
for the first time in the present^commission, by ten- , 
dering what was technically styled the oath ex officio to 
such of the clergy as were surmised to harbour a spirit 
of puritanical disaffection. This procedure, which was 
wholly founded on the canon law, consisted in a series 
of interrogations, so comprehensive as to embrace the 
whole scope of clerical uniformity, yet so precise and 
minute as to leave no room for evasion, to which the 
suspected party was bound to answer upon oath. m Si i 
repugnant was this to the rules of our English law and 
to the principles of natural equity, that no species jof 

ecclesiastical tyranny seems to have excited 
Lord Bur- so much indignation. Lord Burleigh, who, 
tosererity? though at first rather friendly to AVhitgift, was 

soon disgusted by his intolerant and arbitrary 
behaviour, wrote in strong terms of remonstrance against 
these articles of examination, as "so curiously penned, 
so full of branches and circumstances, as he thought the 
inquisitors of Spain used not so many questions to com- 
prehend and to trap their preys." The primate replied 
by alleging reasons in behalf of the mode of examina- 
tion, but very frivolous, and such as a man determined 
to persevere in an unwarrantable course of action may 
commonly find." They had little effect on the calm and 
sagacious mind of the treasurer, who continued to ex- 
press his dissatisfaction, both individually and as one of 
the privy council. But the extensive jurisdiction inl- 
and others to inquire after all heresies, having annexed a much smaller penalty, 
punish persons misbehaving at church, But it was held by the judges in the case 
and such as refused to come thither, of Cawdrey (5 Coke's Reports) that the 
either by means of presentments by wit- act did not take away the ecclesiastical 
ness, or any other politic way they could jurisdiction and supremacy which had 
devise ; with full power to proceed as ever appertained to the crown, and by 
their discretions and consciences should virtue of which it might erect courts 
direct them ; and to use all such means with as full spiritual jurisdiction as the 
as they could invent for the searching of archbishops and bishops exercised, 
the premises, to call witnesses, and force m Strype's Whitgift, 135 ; and Appen- 
them to make oath of such things as might dix, 49. 

discover what they sought after. Burnet, n Strype's Whitgift, 157, 160. 
ii. 347. But the primary model was the ° Id. 163, 166, et alibi; Birch's Memoirs, 
inquisition itself. i. 62. There was said to be a scheme on 

It was questioned whether the power foot, about 1590, to make all persons in 
of deprivation for not reading the com- office subscribe a declaration that epis- 
mon prayer, granted to the high commis- copacy was lawful by the word of God, 
sioners, were legal — the act of uniformity which Burleigh prevented. 



Eliz.— Puritans. AYLMLR. 203 

providently granted to the ecclesiastical commissioners, 
and which the queen was not at all likely to recall, 
placed Whitgift beyond the control of the temporal 
administration. 

The archbishop, however, did not stand alone in 
this impracticable endeavour to overcome the stubborn 
sectaries by dint of hard usage. Several other bishops 
were engaged in the same uncharitable course, p but 
especially Aylmer of London, who has left a worse 
name in this respect than any prelate of 'Elizabeth's 
reign. q The violence of Aylmer's temper was not re- 
deemed by many virtues ; it is impossible to exonerate 
his character from the imputations of covetousness and 
of plundering the revenues of his see : faults very pre- 
valent among the bishops of that period. The privy 
council wrote sometimes to expostulate with Aylmer in 
a tone which could hardly have been employed towards 
a man in his station who had not forfeited the general 
esteem. Thus, upon occasion of one Benison, whom he 
had imprisoned without cause, we find a letter signed 
by Burleigh, Leicester, Walsingham, and even Hatton, 
besides several others, urging the bishop to give the 
man a sum of money, since he would recover damages 
at law, which might hurt his lordship's credit. Aylmer, 
however, who was of a stout disposition, especially when 
his purse was interested, objected strongly to this sug- 
gestion, offering rather to confer on Benison a small 
living, or to let him take his action at law. The result 
does not appear, but probably the bishop did not yield/ 
He had worse success in an information laid against him 
for felling his woods, which ended not only in an injunc- 
tion but a sharp reprimand from Cecil in the star- 
chamber." 

What lord Burleigh thought of these proceedings may 
be seen in the memorial to the queen on matters of 

l 1 Xeal, 325, 385. he literally proposed to sell his bishopric 

1 Id. 290; Strype's Life of Aylmer, to Bancroft. Id. 169. The other, bow- 

p. 59, &c. His biographer is here, as in ever, waited for his death, and had above 

all his writings, too partial to condemn, 4000Z. awarded to him ; but the crafty 

but too honest to conceal. old man having laid out his money in 

r Neal, 294. land, this sum was never paid. Bancroft 

• Strype's Aylmer, 71. When he grew tried to get an act of parliament in order 

old, and reflected that a large sum of to render the real estate liable, but 

money would be due from his family for without success. P. 194. 

dilapidations of the palace at Fulham, &c, 



204 HARSH TREATMENT OF BURLEIGH. Chap. IV. 

religion and state, from which I have, in the last chapter, 
made an extract to show the tolerance of his disposition 
with respect to catholics. Protesting that he was not in 
the least addicted to the preciser sort of preachers, he 
declares himself "hold to think that the hishops, in 
these dangerous times, take a very ill and unadvised 
course in driving them from their cures ;" first, because 
it must discredit the reputation of her majesty's power, 
when foreign princes should perceive that even among 
her protestant subjects, in whom consisted all her force, 
strength, and power, there was so great a heart-burning 
and division ; and secondly, " because," he says, " though 
they were over-squeamish and nice in their opinions, 
and more scrupulous than they need, yet, with their 
careful catechising and diligent preaching, they bring 
forth that fruit which your most excellent majesty is to 
desire and wish, namely, the lessening and diminishing 
the papistical numbers." ' But this great minister's 
knowledge of the queen's temper, and excessive anxiety 
to retain her favour, made him sometimes fearful to act 
according to his own judgment. " It is well known," 
lord Bacon says of him, in a treatise published in 1591, 
" that, as to her majesty, there was never a counsellor 
of his lordship's long continuance that was so appliable 
to her majesty's princely resolutions, endeavouring al- 
ways after faithful propositions and remonstrances, and 
these in the best words and the most graceful manner, to 
rest upon such conclusions as her majesty in her own 
wisdom determineth, and them to execute to the best ; 
so far hath he been from contestation, or drawing her 
majesty into any of his own courses." u Statesmen who 
betray this unfortunate infirmity of clinging too fondly 
to power become the slaves of the princes they serve. 
Burleigh used to complain of the harshness with which 
the queen treated him. x And though, more lucky than 
most of his class, he kept the white staff of treasurer 
down to his death, he was reduced in his latter years to 
court a rising favourite more submissively than became 
his own dignity/ From such, a disposition we could 

t Somers Tracts, i. 166'. in these memoirs ; but most of the letters 

u Bacon's Works, i. 532. they contain are from the two Bacons, 

* Birch's Memoirs, ii. 146. then engaged in the Essex faction, though 

1 Id. ib. Burleigh does not shine much nephews of the treasurer. 



Eliz.— Puritans. PURITAN LIBELS. 205 

not expect any decided resistance to those measures of 
severity towards the puritans which fell in so entirely 
with Elizabeth's temper. 

There is no middle course, in dealing with religious 
sectaries, between the persecution that exterminates and 
the toleration that satisfies. They were wise in their 
generation, the Loaisas and Valdes of Spain, who kindled 
the fires of the inquisition, and quenched the rising 
spirit of protestantism in the blood of a Seso and a 
Cazalla. But, sustained by the favouring voice of his 
associates, and still more by that firm persuasion which 
bigots never know how to appreciate in their adver- 
saries, a puritan minister set at nought the vexatious 
and arrogant tribunal before which he was summoned. 
Exasperated, not overawed, the sectaries threw off what 
little respect they had hitherto paid to the hierarchy. 
They had learned, in the earlier controversies of the 
Reformation, the use, or, more truly, the abuse, of that 
powerful lever of human bosoms, the press. He who in 
Saxony had sounded the first trumpet-peal against the 
battlements of Eome had often turned aside from his 
graver labours to excite the rude passions of the popu- 
lace by low ribaldry and exaggerated invective ; nor 
had the English reformers ever scrupled to win prose- 
lytes by the same arts. What had been accounted holy 
zeal in the mitred Bale and martyred Latimer, might 
plead some apology from example in the aggrieved 
puritan. Pamphlets, chiefly anonymous, were Puritan 
rapidly circulated throughout the kingdom, Ubels - 
inveighing against the prelacy. Of these libels the 
most famous went under the name of Martin Mar-prelate, 
a vizored knight of those lists, behind whose shield a 
host of sturdy puritans were supposed to fight. These 
were printed at a moveable press, shifted to different 
parts of the country as the pursuit grew hot, and con- 
tained little serious argument, but the unwarrantable 
invectives of angry men, who stuck at no calumny to 
blacken their enemies. 2 If these insults upon authority 

* The first of Martin Mar-prelate's prison the authors and printers. Strype's 

libels were published in 1588. In the Whitgift, 288. These pamphlets are 

month of November of that year the scarce; but a few extracts from them may 

archbishop is directed by a letter from be found in Strype and other authors, 

the council to search for and commit to The abusive language of the puritan 



206 PENRT— UDAL. Chap. IV. 

are apt sometimes to shock us even now, when long 
usage has rendered such licentiousness of seditious and 
profligate libellers almost our daily food, what must they 
have seemed in the reign of Elizabeth, when the press 
had no acknowledged liberty, and while the accustomed 
tone in addressing those in power was little better than 
servile adulation ? 

I A law had been enacted some years before, levelled 
at the books dispersed by the seminary priests, which 
rendered the publication of seditious libels against the 
queen's government a capital felony.* .This act, by one 
of those strained constructions which the judges were 
commonly ready to put upon any political crime, was 
brought to bear on some of these puritanical writings. 
The authors of Martin Mar-prelate could not be traced 
with certainty ; but strong suspicions having fallen on 
one Penry, a young Welshman, he was tried some time 
after for another pamphlet, containing sharp reflections 
on the queen herself, and received sentence of death, 
which it was thought proper to carry into execution.* 
Udal, a puritan minister, fell into the grasp of the same 
statute for an alleged libel on the bishops, which had 
surely a very indirect reference to the queen's adminis- 
tration. His trial, like most other political trials of the 
age, disgraces the name of English justice. It consisted 
mainly in a pitiful attempt by the court to entrap him 
into a confession that the imputed libel was of his 
writing, as to which their proof was deficient. Though 
he avoided this snare, the jury did not fail to obey 
the directions they received to convict him. So far 
from being concerned in Martin's writings, Udal pro- 
fessed his disapprobation of them, and his ignorance of 
the author. This sentence appeared too iniquitous to be 
executed even in the eyes of Whitgift, who interceded 
for his life ; but he died of the effects of confinement. 

pamphleteers had begun several years Appendix, 176. It is a striking contrast 

before. Strype's Annals, ii. 193. See to the coarse abuse for which he suffered, 

the trial of sir Richard Knightley of The authors of Martin Mar-prelate were 

Northamptonshire, for dispersing puri- never fully discovered ; but Penry seems 

tanical libels. State Trials, i. 1£63. not to deny his concern in it. 
\ a 23 Eliz. c. 2. c State Trials, 1271. It may be re- 

* b Penry's protestation at his death is in marked, on this as on other occasions, 

a style of the most affecting and simple that Udal's trial is evidently published 

eloquence. Life of Whitgift, 409 ; and by himself ; and a defendant, especially 



Eliz.— Puritans. ATTEMPT AT PRESBYTERIAN SYSTEM. 207 

If the libellous pen of Martin Mar-prelate was a thorn 
to the rulers of the church, they had still more cause to • 
take alarm at an overt measure of revolution which the 
discontented party began to effect about the year 1590. 
They set up, by common agreement, their own platform 
of government by synods and classes ; the former being 
a sort of general assemblies, the latter held in Attempt to 
particular shires or dioceses, agreeably to the set up a 
presbyterian model established in Scotland. In teirfan" 
these meetings debates were had, and deter- system, 
ruinations usually made, sufficiently unfavourable to the 
established system. The ministers composing them 
subscribed to the puritan book of discipline. These 
associations had been formed in several counties, but 
chiefly in those of Northampton and Warwick, under the 
direction of Cartwright, the legislator of their republic, 
who possessed, by the earl of Leicester's patronage, the 
mastership of a hospital in the latter town. d It would 
be unjust to censure the archbishop for interfering to 
protect the discipline of his church against these inno- 
vators, had but the means adopted for that purpose been 
more consonant to equity. Cartwright with several of 
his sect were summoned before the ecclesiastical com- 
mission ; where, refusing to inculpate themselves by 
taking the oath ex officio, they were committed to the 
Fleet. This punishment not satisfying the rigid church- 
in a political proceeding, is apt to give a can be deemed a material correction of 
partial colour to his own case. Life of facts. 

Whitgift, 314; Annals of Reformation, Neal's History of the Puritans is almost 
iv. 21 ; Fuller's Church History, 122 ; wholly compiled, as far as this reign is 
Neal, 340. This writer says — " Among the concerned, from Strype, and from a manu- 
divines who suffered death for the libels script written by some puritan about the 
above mentioned, was the rev. Mr. Udal." time. It was answered by Madox, after- 
This is no doubt a splenetic mode of wards bishop of Worcester, in a Vindica- 
speaking. But Warburton, in his short tion of the Church of England, published 
notes on Neal's history, treats it as a anonymously in 1733. Neal replied with 
wilful and audacious attempt to impose tolerable success; but Madox's book is 
on the reader — as if the ensuing pages still an useful corrective. Both however 
did not let him into all the circumstances, were, like most controversialists, preju- 
I will here observe that Warburton, in diced men, loving the interests of their 
his self-conceit, has paid a much higher respective factions better than truth, and 
compliment to Neal than he intended, not very scrupulous about. misrepresent- 
speaking of his own comments as a " full ing an adversary. But Neal had got rid 
confutation (I quote from memory) of of the intolerant spirit of the puritans, 
that historian's false facts and misrepre- while Madox labours to justify every act 
sentations." But when we look at these, of Whitgift and Parker, 
we find a good deal of wit and some d Life of Whitgift, 328. 
pointed remarks, but hardly anything that 



208 PREDILECTION FOR MOSAIC POLITY. Chap. IV. 

men, and the authority of the ecclesiastical commission 
being incompetent to inflict any heavier judgment, it 
was thought fit the next year to remove the proceedings 
into the court of star-chamber. The judges, on being 
consulted, gave it as their opinion, that, since far less 
crimes had been punished by condemnation to the gal- 
leys or perpetual banishment, the latter would be fittest 
for their offence. But several of the council had more 
tender regards to sincere though intractable men ; and 
in the end they were admitted to bail upon a promise to 
be quiet, after answering some interrogatories respecting 
the queen's supremacy and other points, with civility 
and an evident wish to avoid offence. 6 It may be ob- 
served that Cartwright explicitly declared his disappro- 
bation of the libels under the name of Martin Mar- 
prelate/ Every political party, however honourable 
may be its objects and character, is liable to be dis- 
graced by the association of such unscrupulous zealots. 
But though it is an uncandid sophism to charge the 
leaders with the excesses they profess to disapprove in 
their followers, it must be confessed that few chiefs of 
faction have had the virtue to condemn with sufficient 
energy the misrepresentations which are intended for 
their benefit. 

It was imputed to the puritan faction with more or 
less of truth, that, not content with the subversion of 
episcopacy and of the whole ecclesiastical polity esta- 
blished in the kingdom, they maintained principles that 
would essentially affect its civil institutions. Their 
denial, indeed, of the queen's supremacy, carried to such 
lengths as I have shown above, might justly be consi- 
dered as a derogation of her temporal sovereignty. 
Many of them asserted the obligation of the judicial 
law of Moses, at least in criminal cases ; and deduced 
from this the duty of putting idolaters (that is, papists), 
adulterers, witches, and demoniacs, sabbath-breakers, 
and several other classes of offenders, to death. g They 
claimed to their ecclesiastical assemblies the right of 
determining " all matters wherein breach of charity may 

• e Id. 336, 360, 366; Append. 142, was not uncommon among the reformers. 

159. Collier quotes passages from Martin Hucer 

f III.; Append. 135 ; Annals, iv. 52. as strong as could well be found in the 

8 This predilection for the Mosaic polity puritan writings. P. 303. 



Eliz.— Puritans. CIVIL GOVERNMENT. 209 

be, and all matters of doctrine and manners, so far as 
appertaineth to conscience." They took away the tem- 
poral right of patronage to churches, leaving the choice 
of ministers to general suffrage. 1 ' There are even pas- 
sages in Cartwright's Admonition which intimate that 
the commonwealth ought to be fashioned after the model 
of the church.' But these it would not be candid to press 
against the more explicit declarations of all the puritans 
in favour of a limited monarchy, though they grounded 
its legitimacy on the republican principles of popular 
consent. 11 And with respect to the former opinions, they 
appear to have been by no means common to the whole 
puritan body; some of the deprived and imprisoned 
ministers even acknowledging the queen's supremacy in 
as full a manner as the law conferred it on her, and as 
she professed to claim it. m 

The pretensions advanced by the school of Cartwright 
did not seem the less dangerous to those who cast their 
eyes upon what was passing in Scotland, where they re- 
ceived a practical illustration. In that kingdom a form 
of polity very nearly conforming to the puritanical plat- 
form had become established at the reformation in 1 560 ; 
except that the office of bishop or superintendent still 
continued, but with no paramount, far less arbitrary 
dominion, and subject even to the provincial synod, 

h Life of Whitgift, p. 61, 333, and on their adversaries. Sir Francis Knollys 

Append. 138 ; Annals, iv. 140. As I have strongly opposed the claims of episcopacy 

not seen the original works in which these as a divine institution, which had been 

tenets are said to be promulgated, I can- covertly insinuated by Bancroft, on the 

not vouch for the fairness of the repre- ground of its incompatibility with the 

sentation made by hostile pens, though I prerogative, and urged lord Burleigh to 

conceive it to be not very far from the make the bishops acknowledge they had 

truth. no superiority over the clergy, except by 

i Ibid; Madox's Vindication of the Ch. statute, as the only means to save her 

of Eng. against Neal, p. 212; Strype's majesty from the extreme danger into 

Annals, iv. 142. which she was brought by the machina- 

, k The large views of civil government tions of the pope and king of Spain, 

entertained by the puritans were some- Life of Whitgift, p. 350, 361, 389. He 

times imputed to them as a crime by their wrote afterwards to lord Burleigh in 

more courtly adversaries, who reproached 1591, that, if he might not speak his 

them with the writings of Buchanan and mind freely against the power of the 

Languet. Life of Whitgift, 258 ; Annals, bishops, and prove it unlawful, by the 

iv. 142. laws of this realm, and not by the canon 

m See a declaration to this effect, at law, he hoped to be allowed to become a 

which no one could cavil, in Strype's private man. This bold letter he desires 

Annals, iv. 85. The puritans, or at least to have shown to the queen. Catalogue 

some of their friends, retaliated this of Lansdowne MSS., British Museum, 

charge of denying the queen's supremacy lxviii. 84. 

VOL. I. P 



210 AVERSION TO EPISCOPAL AUTHORITY. Chap. IV. 

much more to the general assembly of the Scottish 
church. Even this very limited episcopacy was abo- 
lished in 1592. The presbyterian clergy, individually 
and collectively, displayed the intrepid, haughty, and 
untractable spirit of the English puritans. Though 
Elizabeth had from policy abetted the Scottish clergy in 
their attacks upon the civil administration, this con- 
nexion itself had probably given her such an insight 
into their temper as well as their influence that she 
must have shuddered at the thought of seeing a repub- 
lican assembly substituted for those faithful satraps her 
bishops, so ready to do her bidding, and so patient under 
the hard usage she sometimes bestowed on them. 

These prelates did not, however, obtain so much sup- 
Hou e of P 01 ^ f rom the house of commons as' from their 
! commons sovereign. In that assembly a determined 
epfsropai band of puritans frequently carried the victory 
authority, against the courtiers. Every session exhibited 
proofs of their dissatisfaction with the state of the church. 
The crown's influence would have been too weak with- 
out stretches of its prerogative. The commons in 1575 
received a message forbidding them to meddle with 
religious concerns. For five years afterwards the queen 
did not convoke parliament, of which her dislike to their 
puritanical temper might in all probability be the chief 
reason. But, when they met again in 1 580, the same 
topic of ecclesiastical grievances, which had by no means 
abated during the interval, was revived. The commons 
appointed a committee, formed only of the principal 
officers of the crown who sat in the house, to confer 
with some of the bishops, according to the irregular and 
imperfect course of parliamentary proceedings in that 
age, " touching the griefs of this house for some things 
very requisite to be reformed in the church, as the great 
number of unlearned and unable ministers, the great 
abuse of excommunications for every matter of small 
moment, the commutation of penances, and the great 
multitude of dispensations and pluralities, and other 
things very hurtful to the church." n The committee 
reported that they found some of the bishops desirous of 
a remedy for the abuses they confessed, and of joining 

n D'Ewes, 302 ; Strype's Whitgift, 92, Append. 32. 



Eliz.— Puritans. PROCEEDINGS OF LOWER HOUSE. 211 

in a petition for that purpose to her majesty ; which had 
accordingly been done, and a gracious answer, promising 
all convenient reformation, but laying the blame of 
remissness upon some prelates, had been received. This 
the house took with great thankfulness. It was exactly 
the course which pleased Elizabeth, who had no regard 
for her bishops, and a real anxiety that her ecclesiastical 
as well as temporal government should be well adminis- 
tered, provided her subjects would intrust the sole care 
of it to herself, or limit their interference to modest 
petitioning. 

A new parliament having been assembled, soon after 
Whitgift on his elevation to the primacy had begun to 
enforce an universal conformity, the lower house drew 
up a petition in sixteen articles, to which they requested 
the lords' concurrence, complaining of the oath ex officio, 
the subscription to the three new articles, the abuses of 
excommunication, licences for non-residence, and other 
ecclesiastical grievances. The lords replied coolly that 
they conceived many of those articles which the com- 
mons had proposed to be unnecessary, and that others 
of them were already provided for ; and that the uni- 
formity of the common prayer, the use of which the 
commons had requested to leave in certain respects to 
the minister's discretion, had been established by par- 
liament. The two archbishops, Whitgift and Sandys, 
made a more particular answer to each article of the 
petition, in the name of their brethren. But, in order 
to show some willingness towards reformation, they pro- 
posed themselves, in convocation, a few regulations for 
redress of abuses, none of which, however, on this occa- 
sion, though they received the royal assent, were sub- 
mitted to the legislature ; p the queen in fact maintaining 
an insuperable jealousy of all intermeddling on the part 
of parliament with her exclusive supremacy over the 
church. Excluded by Elizabeth's jealousy from enter- 
taining these religious innovations, which would pro- 
bably have met with no unfavourable reception from 
a free parliament, the commons vented their ill-will 
towards the dominant hierarchy in complaints of eccle- 
siastical grievances, and measures to redress them ; as 

° D'Ewes.339, et post; Strype's Whitgift, 176, &c; Append. 10. 
P Strype's Annals, iii. 228. 

p2 



212 OPPOSITION TO OATH EX OFFICIO. Chap. IV. 

to which, even with the low notions of parliamentary 
right prevailing at court, it was impossible to deny their 
competence. Several bills were introduced this session 
of 1584-5 into the lower house, which, though they had 
little chance of receiving the queen's assent, manifest 
the sense of that assembly, and in all likelihood of their 
constituents. One of these imported that bishops should 
be sworn in one of the courts of justice to do nothing in 
their office contrary to the common law. Another went 
to restrain pluralities, as to which the prelates would 
very reluctantly admit of any limitation. q A bill of the 
same nature passed the commons in 1589, though not 
without some opposition. The clergy took so great 
alarm at this measure that the convocation addressed 
the queen in vehement language against it ; and the 
archbishop throwing all the weight of his advice and 
authority into the same scale, the bill expired in the 
upper house/ A similar proposition in the session of 
1601 seems to have miscarried in the commons. 8 In the 
next chapter will be found other instances of the com- 
mons' reforming temper in ecclesiastical concerns, and 
the queen's determined assertion of her supremacy. 

The oath ex officio, binding the taker to answer all 
questions that should be put to him, inasmuch as it 
contravened the generous maxim of English law, that 
no one is obliged to criminate himself, provoked very 
just animadversion. Morice, attorney of the court of 
wards, not only attacked its legality with arguments of 
no slight force, but introduced a bill to take it away. 
This was on the whole well received by the house ; and 
sir Francis Knollys, the stanch enemy of episcopacy, 
though in high office, spoke in its favour. But the 
queen put a stop to the proceeding, and Morice lay 
some time in prison for his boldness. The civilians, of 
whom several sat in the lower house, defended a mode 
of procedure that had been borrowed from their own 
jurisprudence. This revived the ancient animosity 
between them and the common lawyers. The latter had 
always manifested a great jealousy of the spiritual juris- 
diction, and had early learned to restrain its exorbi- 
tances by writs of prohibition from the temporal courts. 

1 Strype's Annals, iii. 186, 192. Com- r Strype's Whitgift, 279; Annals, i. 543. 
pare Append. 35. * Pari. Hist. 921. 



E Liz.— Puritans. LAWS TO ENFORCE CONFORMITY. 213 

Whitgift, as tenacious of power as the most ambitious of 
his predecessors, murmured like them at this subordi- 
nation, for such it evidently was, to a lay tribunal.' But 
the judges, who found as much gratification in exerting 
their power as the bishops, paid little regard to the 
remonstrances of the latter. We find the law reports of 
this and the succeeding reign full of cases of prohibi- 
tions. Nor did other abuses imputed to these obnoxious 
judicatures fail to provoke censure, such as the unrea- 
sonable fees of their officers, and the usage of granting 
licences and commuting penances for money." The 
ecclesiastical courts indeed have generally been reckoned 
more dilatory, vexatious, and expensive than those of 
the common law. But in the present age that part of 
their jurisdiction which, though coercive, is professedly 
spiritual, and wherein the greatest abuses have been 
alleged to exist, has gone very much into disuse. In 
matrimonial and testamentary causes their course of pro- 
ceeding may not be open to any censure, so far as the 
essential administration of justice is concerned ; though 
in the latter of these a most inconvenient division of 
jurisdictions, following not only the unequal boundaries 
of episcopal dioceses, but the various peculiars or exempt 
districts which the church of England has continued to 
retain, is productive of a good deal of trouble and need- 
less expense. [1827.] 

Notwithstanding the tendency towards puritanism 
which the house of commons generally displayed, 
the court succeeded in procuring an act which dentThabie 
eventually pressed with very great severity |» severe 
upon that class. This passed in 1593, and 
enacted the penalty of imprisonment against any person 
above the age of sixteen who should forbear for the 

t Strype's Whitgift, 521, 537 ; App. 130. u Strype's Whitgift and D'Ewes, pas- 
The archbishop could not disguise his sim. In a convocation held during Grin- 
dislike to the lawyers. "The temporal dal's sequestration (1580), proposals for 
lawyer," he says in a letter to Cecil, reforming certain abuses in the spiritual 
" whose learning is no learning anywhere courts were considered ; but nothing was 
but here at home, being born to nothing, done in it Strype's Grindal, p. 259, and 
doth by his labour and travel in that Append, p. 97. And in 1594 a commis- 
barbarous knowledge purchase to himself sion to inquire into abuses in the spiritual 
and his heirs for ever a thousand pounds courts was issued ; but whether this 
per annum, and oftentimes much more, were intended bona fide or not, it pro- 
whereof there are at this day many ex- duced no reformation. Strype's Whit- 
amples." P. 215. gift, 419. 



214 ORIGIN OF INDEPENDENTS. Chap. IV. 

space of a mouth to repair to some church, until he 
should make such open submission and declaration of 
conformity as the act appoints. Those who refused to 
submit to these conditions were to abjure the realm, and 
if they should return without the queen's licence to 
suffer death as felons/ As this, on the one hand, like 
so many former statutes, helped to crush the unfortunate 
adherents to the Eomish faith, so too did it bear an 
obvious application to such protestant sectaries as had 
professedly separated from the Anglican church. But it 
is here worthy of remark, that the puritan ministers 
throughout this reign disclaimed the imputation of 
schism, and acknowledged the lawfulness of continuing 
in the estahlished church, while they demanded a further 
reformation of her discipline/ The real separatists, who 
were also a numerous body, were denominated Brown- 
ists or Barrowists, from the names of their founders, 
afterwards lost in the more general appellation of Inde- 
pendents. These went far beyond the puritans in their 
aversion to the legal ministry, and were deemed in con- 
sequence still more proper subjects for persecution. 
Multitudes of them fled to Holland from the rigour of 
the bishops in enforcing this statute/ But two of this 
persuasion, Barrow and Greenwood, experienced a still 
severer fate. They were indicted on that perilous law 
of the 23rd of the queen, mentioned in the last chapter, 
for spreading seditious writings, and executed at Bury. 
They died, Neal tells us, with such expressions of piety 

x 35 Eh'z. c. 1 ; Pari. Hist 863. necessity of an uniformity of public wor- 
7 Neal asserts in his summary of the ship, and of calling in the sword of the 
controversy, as it stood in this refgn, that magistrate for the support and defence of 
the puritans did not object to the office the several principles, which they made 
of bishop, provided he was only the head an ill use of in their turns, as they could, 
of the presbyters, and acted in conjunction grasp the power into their hands. The 
with them. P. 398. But this was in standard of uniformity, according to the 
effect to demand everything. For if the bishops, was the queen's supremacy and 
office could be so far lowered in eminence, the laws of the land ; according to the 
there were many waiting to clip the tern- puritans, the decrees of provincial and 
poral revenues and dignity in proportion, national synods, allowed and enforced by 
In another passage Neal states clearly, the civil magistrate ; but neither party 
if not quite fairly, the main points of were for admitting that liberty of con- 
difference between the church and non- science and freedom of profession which 
conforming parties under Elizabeth, is every man's right, as far as is con- 
P. lit. He concludes with the follow- sistent with the peace of the government 
ing remark, which is very true. " Both he lives under." 
parties agreed too well in asserting the 2 Neal, 253, 386. 



Eliz.— Puritans. HOOKER'S ECCLESIASTICAL POLITY. 215 

and loyalty that Elizabeth regretted the consent she had 
given to their deaths.* 

But while these scenes of pride and persecution on one 
hand, and of sectarian insolence on the other, were de- 
forming the bosom of the English church, she found a 
defender of her institutions in one who mingled in these 
vulgar controversies like a knight of romance among 
caitiff brawlers, with arms of finer temper and worthy 
to be proved in a nobler field. Eichard Hooker, master 
of the Temple, published the first four books Hookers 
of his Ecclesiastical Polity in 1594; the fifth, tcciesiasti- 
three years afterwards ; and, dying in 1600, left itscharac-. 
behind three which did not see the light till ter - 
1647. This eminent work may justly be reckoned to 
mark an era in our literature ; for if passages of much 
good sense and even of a vigorous eloquence are scattered 
in several earlier writers in prose, yet none of these, 
except perhaps Latimer and Ascham, and sir Philip 
Sidney in his Arcadia, can be said to have acquired 
enough reputation to be generally known even by name, 
much less are read in the present day ; and it is, indeed, 
not a little remarkable that England until near the end of 
the sixteenth century had given few proofs in literature 
of that intellectual power which was about to develop 
itself with such unmatchable energy in Shakspeare and 
Bacon. We cannot, indeed, place Hooker (but whom 
dare we to place ?) by the side of these master-spirits ; 
yet he has abundant claims to be counted among the 
luminaries of English literature. He not only opened 
the mine, but explored the depths, of our native elo- 
quence. So stately and graceful is the march of his 
periods, so various the fall of his musical cadences upon 
the ear, so rich in images, so condensed in sentences, so 
grave and noble his diction, so little is there of vul- 
garity in his racy idiom, of pedantry in his learned 



B Strype's Whitgift, 414; Neal, 373. civil cases. Strype's Annals, iii. 186. 
Several years before, in 1583, two men This was according to the invariable 
called anabaptists, Thacker and Copping, practice of Tudor times : an oppressive 
were hanged at the same place on the and sanguinary statute was first made ; 
same statute for denying the queen's and next, as occasion might serve, a con- 
ecclesiastical supremacy; the proof of struction was put on it contrary to all 
which was their dispersion of Brown's common sense, in order to take away 
tracts, wherein that was only owned in men's lives. 



216 HOOKER. Chap. IV. 

phrase, that I know not whether any later writer has 
more admirably displayed the capacities of "our language, 
or produced passages more worthy of comparison with 
the splendid monuments of antiquity. If we compare 
the first hook of the Ecclesiastical Polity with what bears, 
perhaps, most resemblance to it of anything extant, the 
treatise of Cicero de Legibus, it will appear somewhat, 
perhaps, inferior, through the imperfection of our lan- 
guage, which, with all its force and dignity, does not 
equal the Latin in either of these qualities, and certainly 
more tedious and diffuse in some of its reasonings, but 
by no means less high-toned in sentiment, or less bright 
in fancy, and far more comprehensive and profound in 
the foundations of its philosophy. 

The advocates of a presbyterian church had always 
thought it sufficient to prove that it was conformable to 
the apostolical scheme as deduced merely from the Scrip- 
tures. A pious reverence for the sacred writings, which 
they made almost their exclusive study, had degenerated 
into very narrow views on the great themes of natural 
religion and the moral law, as deducible from reason and 
sentiment. These, as most of the various families of 
their descendants continue to do, they greatly slighted, 
or even treated as the mere chimeras of heathen phi- 
losophy. If they looked to the Mosaic law as the stan- 
dard of criminal jurisprudence, if they sought precedents 
from Scripture for all matters of temporal policy, much 
more would they deem the practice of the Apostles an 
unerring and immutable rule for the discipline of the 
Christian church b To encounter these adversaries, 
Hooker took a far more original course than the ordinary 
controvertists, who fought their battles with conflicting 
interpretations of Scriptural texts or passages from the 
fathers. He inquired into the nature and foundation of 
law itself, as the mle of operation to all created beings, 
yielding thereto obedience by unconscious necessity, or 

b "The discipline of Christ's church," unlawful and counterfeit." Whitgift, in 

said Cartwright, " that is necessary for his answer to Cartwright's Admonition, 

all times, is delivered by Christ, and set rested the controversy in the main, as 

down in the Holy Scriptures. Therefore Hooker did, on the iudifferency of church 

the true and lawful discipline is to be discipline and ceremony. It was not till 

fetched from thence, and from thence afterwards that the defenders of the esta- 

alone. And that which resteth upon any Wished order found out that one claim of 

other foundation ought to be esteemed divine right was best met by another. 



Eliz.— Puritans. HOOKER. 217 

sensitive appetite, or reasonable choice ; reviewing espe- 
cially those laws that regulate human agency, as they 
arise out of moral relations, common to our species, or 
the institutions of political societies, or the intercom- 
munity of independent nations ; and having thoroughly 
established the fundamental distinction between laws 
natural and positive, eternal and temporary, immutable 
and variable, he came with all this strength of moral 
philosophy to discriminate by the same criterion the 
various rules and precepts contained in the Scriptures. 
It was a kind of maxim among the puritans that Scrip- 
ture was so much the exclusive rule of human actions 
that whatever, in matters at least concerning religion, 
could not be found to have its authority, was unlawful. 
Hooker devoted the whole second book of his work to 
the refutation of this principle. He proceeded after- 
wards to attack its application more particularly to the 
episcopal scheme of church government, and to the 
various ceremonies or usages which those sectaries 
treated as either absolutely superstitious, or at least as 
impositions without authority. It was maintained by 
this great writer, not only that ritual observances are 
variable according to the discretion of ecclesiastical 
riders, but that no certain form of polity is set down in 
Scripture as generally indispensable for a Christian 
church. Far, however, from conceding to his antago- 
nists the fact which they assumed, he contended for 
episcopacy as an apostolical institution, and always pre- 
ferable, when circumstances would allow its preserva- 
tion, to the more democratical model of the Calvinistic 
congregations. " If we did seek," he says, " to maintain 
that which most advantageth our own cause, the very 
best way for us and the strongest against them were to 
hold, even as they do, that in Scripture there must needs 
be found some particular form of church polity which 
God hath instituted, and which for that very cause be- 
longeth to all churches at all times. But with any 
such partial eye to respect ourselves, and by cunning to 
make those things seem the truest which are the fittest 
to serve our purpose, is a thing which we neither like 
nor mean to follow." 

The richness of Hooker's eloquence is chiefly dis- 
played in his first book; beyond which, perhaps, few 



218 HOOKER. Chap. IV. 

who want a taste for ecclesiastical reading are likely to 
proceed. The second and third, however, though less 
brilliant, are not inferior in force and comprehensiveness 
of reasoning. The eighth and last returns to the subject 
of civil government, and expands, with remarkable 
liberality, the principles he had laid down as to its 
nature in the first book. Those that intervene are 
mostly confined to a more minute discussion of the ques- 
tions mooted between the church and puritans ; and in 
these, as far as I have looked into them, though Hooker's 
argument is always vigorous and logical, and he seems 
to be exempt from that abusive insolence to which 
polemical writers were then even more prone than at 
present, yet he has not altogether the terseness or 
lucidity which long habits of literary warfare, and, per- 
haps, a natural turn of mind, have given to some expert 
dialecticians. In respect of language, the three post- 
humous books, partly from having never received the 
author's last touches, and partly, perhaps, from his 
weariness of the labour, are beyond comparison less ele- 
gantly written than the preceding. 

The better parts of the Ecclesiastical Polity bear a 
resemblance to the philosophical writings of antiquity, 
in their defects as well as their excellences. Hooker is 
often too vague in the use of general terms, too incon- 
siderate in the admission of principles, too apt to acqui- 
esce in the scholastic pseudo-philosophy, and, indeed, in 
all received tenets ; he is comprehensive rather than 
sagacious, and more fitted to sift the truth from the 
stores of accumulated learning than to seize it by an 
original impulse of his own mind ; somewhat also im- 
peded, like many other great men of that and the suc- 
ceeding century, by too much acquaintance with books, 
and too much deference for their authors. It may be 
justly objected to some passages that they elevate eccle- 
siastical authority, even in matters of belief, with an 
exaggeration not easily reconciled to the protestant 
right of private judgment, and even of dangerous con- 
sequence in those times ; as when he inclines to give a 
decisive voice in theological controversies to general 
councils ; not, indeed, on the principles of the church 
of Rome, but on stich as must end in the same con- 
clusion, the high probability that the aggregate judgment 



Eliz.— Puritans. PRINCIPLES OF CIVIL GOVERNMENT. 219 

of many grave and learned men should be well founded.' 
Nor would it be difficult to point out several other sub- 
jects, such as religious toleration, as to which he did not 
emancipate himself from the trammels of prejudice. 
But, whatever may be the imperfections of his Ecclesi- 
astical Polity, they are far more than compensated by its 
eloquence and its reasoning, and above all by that deep 
pervading sense of the relation between man and his Cre- 
ator, as the groundwork of all eternal law, which ren- 
dered the first book of this work a rampart, on the one 
hand, against the puritan school who shunned the light 
of nature as a deceitful meteor ; and, on the other, against 
that immoral philosophy which, displayed in the dark 
precepts of Machiavel, or lurking in the desultory sallies 
of Montaigne, and not always rejected by writers of 
more apparent seriousness, threatened to destroy the 
sense of intrinsic distinctions in the quality of actions, 
and to convert the maxims of state-craft and dissembling 
policy into the rule of life and manners. 

Nothing, perhaps, is more striking to a reader of the 
Ecclesiastical Polity than the constant and even excessive 
predilection of Hooker for those liberal principles of civil 
government which are sometimes so just and always so 
attractive. Upon these subjects his theoiy absolutely co- 
incides with that of Locke. The origin of government, 
both in right and in fact, he explicitly derives /from a 
primary contract ; " without which consent there were 
no reason that one should take upon him to be lord or 
judge over another ; because, although there be, accord- 



c "If the natural strength of men's wit sound? For the controversy is of the 

may by experience and study attain unto weight of such men's judgment," kc. 

such ripeness in the knowledge of things But Hooker's mistake was to exaggerate 

human, that men in this respect may the weight of such men's judgment, and 

presume to btrlld somewhat upon their not to allow enough for their passions 

judgment, what reason have we to think and infirmities, the imperfection of their 

but that, even in matters divine, the like knowledge, their connivance with power, 

wits, furnished with necessary helps, ex- their attachment to names and persons, 

ercised in Scripture with like diligence, and all the other drawbacks to ecclesias- 

and assisted with the grace of Almighty tical authority. 

God, may grow unto so much perfection It is well known that the preface to the 

of knowledge, that men shall have just Ecclesiastical Polity was one of the two 

cause, when anything pertinent unto faith books to which James II. ascribed his 

and religion is doubted of, the more will- return into the fold of Rome ; and it is 

ingly to incline their minds towards that not difficult to perceive by what course 

which the sentence of so grave, wise, and of reasoning on the positions it contains 

learned in that faculty shall judge most this was effected. 



220 INTERPOLATIONS IN THE LATTER BOOKS. Chap. IV. 

ing to the opinion of some very great and judicious men, 
a kind of natural right in the noble, wise, and virtuous, 
to govern them which are of servile disposition, never- 
theless, for manifestation of this their right, and men's 
more peaceable contentment on both sides, the assent of 
them who are to be governed seemeth necessary." " The 
lawful power," he obseives elsewhere, " of making laws 
to command whole politic societies of men, belongeth so 
properly unto the same entire societies, that for any 
prince or potentate of what kind soever upon earth to 
exercise the same of himself, and not either by express 
commission immediately and personally received from 
God, or else by authority received at first from their 
consent upon whose persons they impose laws, it is no 
better than mere tyranny. Laws they are not, therefore, 
which public approbation hath not made so. But appro- 
bation not only they give, who personally declare their 
assent by voice, sign, or act ; but also when others do it 
in their names, by right originally, at the least, derived 
from them. As in parliaments, councils, and the like 
assemblies, although we be not personally ourselves pre- 
sent, notwithstanding our assent is by reason of other 
agents there in our behalf. And what we do by others, 
no reason but that it should stand as our deed, no less 
effectually to bind us than if ourselves had done it in 
person." And in another place still more peremptorily : 
"Of this thing no man doubteth, namely, that in all 
societies, companies, and corporations, what severally 
each shall be bound unto, it must be with all their 
assents ratified. Against all equity it were that a man 
should suffer detriment at the hands of men for not ob- 
serving that which he never did either by himself or 
others mediately or immediately agree unto." 

These notions respecting the basis of political society, 
so far unlike what prevailed among the next generation 
of churchmen, are chiefly developed and dwelt upon in 
Hooker's concluding book, the eighth ; and gave rise to 
a rumour, very sedulously propagated soon after the time 
of its publication, and still sometimes repeated, that the 
posthumous portion of his work had been interpolated or 
altered by the puritans. d \ For this surmise, however, I 

d In the Life of Hooker, prefixed to! the of Dr. Barnard, chaplain to Usher, that he 
edition I use, fol. 1671, 1 find an assertion had seen a manuscriptof the last books of 



Eliz.— Puritans. VINDICATION OF QUEEN'S SUPREMACY. 221 

am persuaded that there is no foundation. The three 
latter books are doubtless imperfect, and it is possible 
that verbal changes may have been made by their tran- 
scribers or editors; but the testimony that has been 
brought forward to throw a doubt over their authenticity 
consists in those vague and self-contradictory stories 
which gossiping compilers of literary anecdote can easily 
accumulate; while the intrinsic evidence arising from 
the work itself, on which in this branch of criticism I am 
apt chiefly to rely, seems altogther to repel eveiy sus- 
picion. For not only the principles of civil government, 
presented in a more expanded form by Hooker in the 
eighth book, are precisely what he laid down in the 
first ; but there is a peculiar chain of consecutive reason- 
ing running through it, wherein it would be difficult to 
point out any passages that could be rejected without 
dismembering the context. It was his business in this 
part of the Ecclesiastical Polity to vindicate the queen's 
supremacy over the church; and this he has done by 
identifying the church with the commonwealth ; no one, 
according to him, being a member of the one who was 
not also a member of the other. But as the constitution 
of the Christian church, so far as the laity partook in 
its government, by choice of pastors or otherwise, was 
undeniably democratical, he laboured to show, through 

Hooker, containing many things omitted their authenticity is from internal evi- 

in the printed volume. One passage is dence. [But it has been proved by Mr. 

quoted, and seems in Hooker's style. But Keble, the last editor of the Ecclesiastical 

the question is rather with respect to Polity, that the sixth book, as we now 

interpolations than omissions. And of the possess it, though written by Hooker, 

former I see no evidence or likelihood, did not belong to this work, and conse- 

If it be true, as is alleged, that different quently that the real sixth book has been 

manuscripts of the three last books did lost. — 1841.] 

not agree, if even these disagreements A late writer has produced a somewhat 

were the result of fraud, why should we ridiculous proof of the carelessness with 

conclude that they were corrupted by the which all editions of the Ecclesiastical 

puritans rather than the church? In Polity have been printed— a sentence 

Zouch's edition of Walton's Life of having slipped into the textof the seventh 

Hooker the reader will find a long and book, which makes nonsense, and which 

Ill-digested note on this subject, the result he very probably conjectures to have been 

of which has been to convince me that a marginal memorandum of the author for 

there is no reason to believe any other his own use on revising the manuscript, 

than verbal changes to have been made in M'Crie's Life of Melvil, vol. i. p. 471. 

the loose draught which the author left, [But it seems on the whole a, more plau- 

but that, whatever changes were made, sible conjecture that the memorandum 

it does not appear that the manuscript was by one of those who, after Hooker's 

was ever in the hands of the puritans, death, had the manuscript to revise. — 

The strongest probability, however, of 1841.] 



222 DOCTRINES OF LIMITED MONARCHY. Chap. IV. 

the medium of the original compact of civil society, that 
the sovereign had received this, as well as all other 
powers, at the hands of the people. " Laws being made 
among us," he affirms, " are not by any of us so taken or 
interpreted as if they did receive their force from power 
which the prince doth communicate unto the parliament, 
or unto any other court under him, but from power 
which the whole body of the realm being naturally pos- 
sessed with hath by free and deliberate assent derived 
unto him that ruleth over them so far forth as hath been 
declared ; so that our laws made concerning religion do 
take originally their essence from the power of the whole 
realm and church of England." 

In this system of Hooker and Locke, for it will be ob- 
vious to the reader that their principles were the same, 
there is much, if I am not mistaken, to disapprove. That 
no man can be justly bound by laws which his own 
assent has not ratified appears to me a position incom- 
patible with the existence of society in its literal sense, 
or illusory in the sophistical interpretations by which 
it is usual to evade its meaning. It will be more satis- 
factory and important to remark the views which this 
great writer entertained of our own constitution, to 
which he frequently and fearlessly appeals, as the stand- 
ing illustration of a government restrained by law. " I 
cannot choose," he says, " but commend highly their 
wisdom, by whom the foundation of the commonwealth 
hath been laid ; wherein, though no manner of person or 
cause be unsubject unto the king's power, yet so is the 
power of the king over all, and in all, limited, that unto 
all his proceedings the law itself is a rule. The axioms 
of our regal government are these : ' Lex facit regem ' — 
the king's grant of any favour made contrary to the law 
is void ; — ' Eex nihil potest nisi quod jure potest ' — 
what power the king hath he bath it by law ; the bounds 
and limits of it are known, the entire community giveth 
general order by law how all things publicly are to be 
done; and the king as the head thereof, the highest -in 
authority over all, causeth, according to the same law, 
every particular to be framed and ordered thereby. The 
whole body politic maketh laws, which laws give power 
unto the king ; and the king having bound himself to 
use according to law that power, it so falleth out that the 



Euz.— Puritans. WHIG PRINCIPLES OF HOOKER. 223 

execution of the one is accomplished by the other." 
These doctrines of limited monarchy recur perpetually in 
the eighth book ; and though Hooker, as may be sup- 
posed, does not enter upon the perilous question of re- 
sistance, and even intimates that he does not see how 
the people can limit the extent of power once granted, 
unless where it escheats to them, yet he positively lays 
it down that usurpers of power, that is, lawful rulers 
arrogating more than the law gives to them, cannot in 
conscience bind any man to obedience. 

It would, perhaps, have been a deviation from my sub- 
ject to enlarge so much on these political principles in a 
writer of any later age, when they had been openly sus- 
tained in the councils of the nation. But as the reigns of 
the Tudor family were so inauspicious to liberty that some 
have been apt to imagine its recollection to have been 
almost effaced, it becomes of more importance to show 
that absolute monarchy was, in the eyes of so eminent an 
author as Hooker, both pernicious in itself and contraiy 
to the fundamental laws of the English commonwealth. 
Nor would such sentiments, we may surely presume, 
have been avowed by a man of singular humility, and 
whom we might charge with somewhat of an excessive 
deference to authority, unless they had obtained more 
currency, both among divines and lawyers, than the 
complaisance of courtiers in these two professions might 
lead us to conclude ; Hooker being not prone to deal in 
paradoxes, nor to borrow from his adversaries that sturdy 
republicanism of the school of Geneva which had been 
their scandal. I cannot, indeed, but suspect that his 
whig principles in the last book are announced with a 
temerity that would have startled his superiors; and 
that its authenticity, however called in question, has 
been better preserved by the circumstance of a post- 
humous publication than if he had lived to give it to the 
world. Whitgift would probably have induced him to 
suppress a few passages incompatible with the servile 
theories already in vogue. It is far more usual that an 
author's genuine sentiments are perverted by means of 
his friends and patrons than of his adversaries. 

The prelates of the English church, while they inflicted 
so many severities on others, had not always cause to 
exult in their own condition. . From the time when 



224 SPOLIATION OF CHURCH REVENUES. Chap. IV. 

Henry taught his courtiers to revel in the spoil of monas- 
c .... teries there had been a perpetual appetite for 

Spoliation . f f If 

of church ecclesiastical possessions. Endowed by a pro- 
revenues. <jigal superstition with pomp and wealth beyond 
all reasonable measure, and far beyond what the new 
system of religion appeared to prescribe, the church of 
England still excited the covetousness of the powerful 
and the scandal of the austere. 6 I have mentioned in 
another place how the bishoprics were impoverished in 
the first reformation under Edward VI. The catholic 
bishops who followed made haste to plunder, from a con- 
sciousness that the goods of their church were speedily 
to pass into the hands of heretics/ Hence the alienation 
of their estates had gone so far that in the beginning of 
Elizabeth's reign statutes were made disabling eccle- 
siastical proprietors from granting away their lands 
except on leases for three lives, or twenty-one years. 8 
But an unfortunate reservation was introduced in favour 
of the crown. The queen, therefore, and her courtiers, 
who obtained grants from her, continued to prey upon 
their succulent victim. Few of her council imitated the 
noble disinterestedness of Walsingham, who spent his 
own estate in her service, and left not sufficient to pay 
his debts. The documents of that age contain ample 
proofs of their rapacity. Thus Cecil surrounded his 
mansion-house at Burleigh with estates once belonging 
to the see of Peterborough. Thus Hatton built his house 
in Holborn on the bishop of Ely's garden. Cox, on 
making resistance to this spoliation, received a singular 
epistle from the queen. h This bishop, in consequence 

c The puritans objected to the title of exception in favour of the crown was re- 
lord bishop. Sampson wrote a peevish pealed in the first year of James, 
letter to Grindal on this, and received h It was couched in the following 
a very good answer. Strype's Parker, terms: — 
Append. 119. Parker, in a letter to Cecil, „ pj. ou d Prelate, 

defends it on the best ground; that the "You know what you were before 
bishops hold their lands by barony, and I made you what you are : if you do not 
therefore the giving them the title of lords immediately comply with my request, 
was no irregularity, and nothing more °y G ~ * wU1 unfrock you. 
than a consequence of the tenure. Collier, " Elizabeth - 
644. This will not cover our modern Poor Cox wrote a very good letter 
colonial bishops, on some of whom the before this, printed in Strype's Annals, 
same title has, without any good reason, vol. ii. Append. 84. The names of Hat- 
been conferred. ton Garden and Ely Place (Mantua vse 
f Strype's Annals, i. 159. miseras nimium vicifia Cremona?) still 
e l Eliz. c. 19; 13 Eliz. c. 10; Black- bear witness to the encroaching lord 
stone's Commentaries, vol. ii. c. 28. The keeper and the elbowed bishop. 



Eliz.— Puritans. CHARACTER OF THE BISHOPS. 225 

of such vexations, was desirous of retiring from the see 
before his death. After that event Elizabeth kept it 
vacant eighteen years. During this period we have a 
petition to her from lord keeper Puckering that she 
would confer it on Scambler, bishop of Norwich, then 
eighty-eight years old, and notorious for simony, in order 
that he might give him a lease of part of the lands.' 
These transactions denote the mercenary and rapacious 
spirit which leavened almost all Elizabeth's courtiers. 

The bishops of this reign do not appear, with some 
distinguished exceptions, to have reflected so much ho- 
nour on the established church as those who attach a 
superstitious reverence to the age of the Eeformation are 
apt to conceive. In the plunder that went forward they 
took good care of themselves. Charges against them of 
simony, corruption, covetousness, and especially destruc- 
tion of their church estates for the benefit of their 
families, are very common, — sometimes no doubt unjust, 
but too frequent to be absolutely without foundation. 11 
The council often wrote to them, as well as concerning 
them, with a sort of asperity which would astonish one 
of their successors. And the queen never restrained 
herself in treating them on any provocation with a good 
deal of rudeness, of which I have just mentioned an 
egregious example." 1 In her speech to parliament on 

i Strype, iv. 246. See also p. 15 of she pleased, though they did not hold 

the same volume. By an act in the first commissions durante bene placito, as in 

year of James, c. 3, conveyances of bi- her brother's time. Thus she suspended 

shops' lands to the crown are made void — Fletcher, bishop of London, of her own 

a concession much to the king's honour, authority, only for marrying " a fine lady 

k Harrington's State of the Church, and a widow." Strype's Whitgift, 458. 
in Nuga? Antiquae, vol. ii. pa-sim ; Wil- And Aylmer having preached too vehe- 
kins's Concilia, iv. 256; Strype's Annals, mently against female vanity in dress, 
iii. 620, et alibi ; Life of Parker, 454 ; which came home to the queen's con- 
of Whitgift, 220; of Aylmer, passim, science, she told her ladies that, if the 
Observe the preamble of 13 Eliz. c. 10. bishop held more discourse on such mat- 
It must be admitted, on the other hand, ters, she would fit him for heaven ; but 
that the gentry, when popishly or puri- he should walk thither without a staff, and 
tanically affected, were apt to behave leave his mantle behind him. Harrington's 
exceedingly ill towards the bishops. At State of the Church, in Nugae Antiquae, 
Lambeth and Fulham theyVere pretty i. 170; see too p. 217. It will of course 
safe ; but at a distance they found it hard not appear surprising that Hutton, arch- 
to struggle with the rudeness and iniquity bishop of York, an exceedingly honest 
of the territorial aristocracy ; as Sandys prelate, having preached a bold sermon 
twice experienced. before the queen, urging her to settle the 

m Birch's Memoirs, i. 48. Elizabeth succession, and pointing strongly towards 

seems to have fancied herself entitled by Scotland, received a sharp message, p. 

her supremacy to dispose of bishops as 250. 

VOL. I. Q 



226 INCREASE OF PURITANISM. . Chap. IV. 

closing the session of 1584, when many complaints 
against the rulers of the church had rung in her ears, 
she told the bishops that, if they did not amend what was 
wrong, she meant to depose them." For there seems to 
have been no question in that age but that this might be 
done by virtue of the crown's supremacy. 

The church of England was not left by Elizabeth in 
circumstances that demanded applause for the policy of 
her rulers. After forty years of constantly aggravated 
molestation of the nonconforming clergy, their numbers 
were become greater, their popularity more deeply 
rooted, their enmity to the established order more irre- 
concilable. It was doubtless a problem of no slight 
difficulty by what means so obstinate and opinionated a 
class of sectaries could have been managed ; nor are we, 
perhaps, at this distance of time altogether competent to 
decide upon the fittest course of policy in that respect. 
But it is manifest that the obstinacy of bold and sincere 
men is not to be quelled by any punishments that do not 
exterminate them, and that they were not likely to enter- 
tain a less conceit of their own reason when they found 
no arguments so much relied on to refute it as that of 
force. Statesmen invariably take a better view of such 
questions than churchmen ; and we may well believe 
that Cecil and Walsingham judged more sagaciously 
than "Whitgift and Aylmer. The best apology that can 
be made for Elizabeth's tenaciousness of those ceremonies 
which produced this fatal contention I have already 
suggested, without much express authority from the 
records of that age ; namely, the justice and expediency 
of winning over the catholics to conformity, by retaining 
as much as possible of their accustomed rites. But in 
the latter period of the queen's reign this policy had lost 
a great deal of its application, or rather the same prin- 
ciple of policy would have dictated numerous concessions 
in order to satisfy the people. It appears by no means 
unlikely that, by reforming the abuses and corruption 



n D'Ewes, 328. the surplice ; but that they answered, " ne 

° Collier says, p. 586, on Heylin's ungulam quidem esse relinquendam." 

authority, that Walsingham offered the But I am not aware of any better testi- 

puritans, about 1583, in the queen's name, mony to the fact; and it is by no means 

to give up the ceremony of kneeling at agreeable to the queen's general cou- 

the communion, the cross in baptism, and duct. 



Eliz.— Puritans. GENERAL REMARKS. 227 

of the spiritual courts, by abandoning a part of their 
jurisdiction, so heterogeneous and so unduly obtained, 
by abrogating obnoxious and at best frivolous ceremonies, 
by restraining pluralities of benefices, by ceasing to dis- 
countenance the most diligent ministers, and by more 
temper and disinterestedness in their own behaviour, the 
bishops would have palliated, to an indefinite degree, 
that dissatisfaction with the established scheme of polity, 
which its want of resemblance to that of other protestant 
churches must more or less have produced. Such a 
reformation would at least have contented those reason- 
able and moderate persons who occupy sometimes a more 
extensive ground between contending factions than the 
zealots of either are willing to believe or acknowledge. 

I am very sensible that such freedom as I have used 
in this chapter cannot be pleasing to such as General 
have sworn allegiance to either the Anglican remarks. 
or the puritan party ; and that even candid and liberal 
minds may be inclined to suspect that I have not suffi- 
ciently admitted the excesses of one side to furnish an 
excuse for those of the other. Such readers I would 
gladly refer to lord Bacon's Advertisement touching 
the Controversies of the Church of England ; a treatise 
written under Elizabeth, in that tone of dispassionate 
philosophy which the precepts of Burleigh sown in his 
own deep and fertile mind had taught him to apply. 
This treatise, to which I did not turn my attention in 
writing the present chapter, appears to coincide in every 
respect with the views it displays. If he censures the 
pride and obstinacy of the puritan teachers, their inde- 
cent and libellous style of writing, their affected imitation 
of foreign churches, their extravagance of receding from 
everything formerly practised, he animadverts with no 
less plainness on the faults of the episcopal party, on 
the bad example of some prelates, on their peevish oppo- 
sition to every improvement, their unjust accusations,, 
their contempt of foreign churches, their persecuting 
spirit. p 

P Bacon, ii. 375. See also another dissembled or excused." p. 382. Yet 

paper concerning the pacification of the Bacon was never charged with affection 

church, written under James, p. 387. for the puritans. In truth, Elizabeth and 

" The wrongs," he says, " of those which James were personally the great support 

are possessed of the government of the of the high-church interest ; it had few 

church towards the other, may hardly be real friends among their councillors. 

Q2 



228 



DEFENCE OF THE GOVERNMENT. 



Chap. IV. 



Yet, that we may not deprive this great queen's admi- 

Letter of nistration, in what concerned her dealings with 

Waising- the two religious parties opposed to the esta- 

defence of Wished church, of what vindication may best 

*£vem- en ' S be offered for it, I will refer the reader to a 

ment letter of sir Francis Walsingham, written to a 

person in France, after the year 1580. q It is a very able 

apology for her government ; and if the reader should 

detect, as he doubtless may, somewhat of sophistry in 

reasoning, and of misstatement in matter of fact, he will 

ascribe both one and the other to the narrow spirit of 

the age with respect to civil and religious freedom, or 

to the circumstances of the writer, an advocate whoso 

sovereign was his client. 



1 Burnet, ii. 418; Cabala, part ii. 38 
(4to edition). Walsingham grounds the 
queen's proceedings upon two principles : 
the one, that " consciences are not to be 
forced, but to be won and reduced by 
force of truth, with the aid of time, and 
use of all good means of instruction and 
persuasion ;" the other, that " cases of con- 
science, when they exceed their bounds, 
and grow to be matter of faction, lose 
their nature ; and that sovereign princes 
ought distinctly to punish their practices 
and contempt, though coloured with the 
pretence of conscience and religion." 
Bacon has repeated the same words, as 
well as some more of Walsingham's 
letter, in his observations on the libel on 
Lord Burleigh, i. 522. And Mr. Southey 
(Book of the Church, ii. 291) seems to 
adopt them as his own. 

Upon this it may be observed — first, 
that they take for granted the funda- 
mental sophism of religious intolerance, 
namely, that the civil magistrate, or the 
church he supports, is not only in the 
right, but so clearly in the right, that no 
honest man, if he takes time and pains to 
consider the subject, can help acknow- 
ledging it ; secondly, that, according to the 
principles of Christianity as admitted on 
each side, it does not rest in an esoteric 
persuasion, but requires an exterior pro- 



fession, evinced both by social worship 
and by certain positive rites ; and that the 
marks of this profession, according to 
the form best adapted to their respective 
ways of thinking, were as incumbent 
upon the catholic and puritan as they had 
been upon the primitive church ; nor 
were they more chargeable with faction, 
or with exceeding the bounds of con- 
science, when they persisted in the use of 
them, notwithstanding any prohibitory- 
statute, than the early Christians. 

The generality of statesmen, and church- 
men themselves not unfrequently, have 
argued upon the principles of what, in the 
seventeenth century, was called Hobb- 
ism, towards which the Erastian system, 
which is that of the church of England, 
though excellent in some points of view, 
had a tendency to gravitate, namely, that 
civil and religious allegiance are so neces- 
sarily connected, that it is the subject's 
duty to follow the dictates of the magis- 
trate in both alike. And this received 
some countenance from the false and 
mischievous position of Hooker, that the 
church and commonwealth are but dif- 
ferent denominations of the same society. 
Warburton has sufficiently exposed the 
sophistry of this theory, though I do not 
think him equally successful in what he 
substitutes for it. 



Eliz.— Government. GENERAL REMARKS. 229 



CHAPTEE V. 

ON THE CIVIL GOVERNMENT OF ELIZABETH. 



General Remarks — Defective Security of the Subject's Liberty — Trials for 
Treason and other Political Offences unjustly conducted — Illegal Commitments 

— Remonstrance of Judges against them — Proclamations unwarranted by Law 

— Restrictions on Printing — Martial Law — Loans of Money not quite volun- 
tary — Character of Lord Burleigh's Administration — Disposition of the House 
of Commons — Addresses concerning the Succession — Difference on this between 
the Queen and Commons in 1566 — Session of 1571 — Influence of the Puritans 
in Parliament — Speech of Mr. Wentworth in 1576 — The Commons continue to 
seek Redress of Ecclesiastical Grievances — Also of Monopolies, especially in 
the Session of 1601 — Influence of the Crown in Parliament — Debate on Election 
of non-resident Burgesses — Assertion of Privileges by Commons — Case of 
Ferrers, under Henry VIH.— Other Cases of Privilege — Privilege of determining 
contested Elections claimed by the House — The English Constitution not 
admitted to be an absolute Monarchy — Pretensions of the Crown. 

The subject of the two last chapters, I mean the policy- 
adopted by Elizabeth for restricting the two General 
religious parties which from opposite quarters remarks, 
resisted the exercise of her ecclesiastical prerogatives, 
has already afforded us many illustrations of what may 
more strictly be reckoned the constitutional history of 
her reign. The tone and temper of her administration 
have been displayed in a vigilant execution of severe 
statutes, especially towards the catholics, and sometimes 
in stretches of power beyond the law. And as Elizabeth 
had no domestic enemies or refractory subjects who did 
not range under one or other of these two sects, and little 
disagreement with her people on any other grounds, the 
ecclesiastical history of this period is the best prepara- 
tion for our inquiry into the civil government. In the 
present chapter I shall first offer a short view of the 
practical exercise of government in this reign, and then 
proceed to show how the queen's high assumptions of 
prerogative were encountered by a resistance in parlia- 
ment, not quite uniform, but insensibly becoming more 
vigorous. 



230 GENERAL REMARKS. Chap. V. 

Elizabeth ascended the throne with all the advantages 
of a very extended authority. Though the jurisdiction 
actually exerted by the court of star-chamber could not 
be vindicated according to statute law, it had been so 
well established as to pass without many audible mur- 
murs. Her progenitors had intimidated the nobility; 
and if she had something to fear at one season from this 
order, the fate of the duke of Norfolk and of the rebellious 
earls in the north put an end for ever to all apprehension 
from the feudal influence of the aristocracy. There seems 
no reason to believe that she attempted a more absolute 
power than her predecessors ; the wisdom of her coun- 
cillors, on the contrary, led them generally to shun the 
more violent measures of the late reigns ; but she cer- 
tainly acted upon many of the precedents they had be- 
queathed her, with little consideration of their legality. 
Her own remarkable talents, her masculine intrepidity, 
her readiness of wit and royal deportment, which the 
bravest men unaffectedly dreaded, her temper of mind, 
above all, at once fiery and inscrutably dissembling, 
would in any circumstances have ensured her more real 
sovereignty than weak monarchs, however nominally 
absolute, can ever enjoy or retain. To these personal 
qualities was added the co-operation of some of the most 
diligent and circumspect, as well as the most sagacious 
councillors that any prince has employed ; men as un- 
likely to loose from their grasp the least portion of that 
authority which they found themselves to possess, as to 
excite popular odium by an unusual or misplaced exer- 
tion of it. The most eminent instances, as I have 
remarked, of a high-strained prerogative in her reign 
have some relation to ecclesiastical concerns ; and herein 
the temper of the predominant religion was such as to 
account no measures harsh or arbitrary that were adopted 
towards its conqiiered but still formidable enemy. Yet 
when the royal supremacy was to be maintained against, 
a different foe by less violent acts of power, it revived 
the smouldering embers of English liberty. The stern 
and exasperated puritans became the depositaries of 
that sacred fire ; and this manifests a second connexion 
between the temporal and ecclesiastical history of the 
present reign. 

Civil liberty in this kingdom has two direct guarantees ; 



Eliz.— Government. STATE TRIALS. 231 

the open administration of justice according to known 
laws truly interpreted, and fair constructions of evidence ; 
and the right of parliament, without let or interruption, 
to inquire into and obtain the redress of public grievances. 
Of these the first is by far the most indispensable ; nor 
can the subjects of any state be reckoned to enjoy a real 
freedom where this condition is not found both in its 
judicial institutions and in their constant exercise. In 
this, much more than in positive law, our ancient con- 
stitution, both under the Plantagenet and Tudor line, 
had ever been failing ; and it is because one set of 
writers have looked merely to the letter of our statutes 
or other authorities, while another have been almost 
exclusively struck by the instances of arbitrary govern- 
ment they found on record, that such incompatible sys- 
tems have been laid down with equal positiveness on the 
character of that constitution. 

I have found it impossible not to anticipate, in more 
places than one, some of those glaring trans- Tria i sfor 
gressions of natural as well as positive law treason and 
that rendered our courts of justice in cases of cai offences" 
treason little better than the caverns of mur- unjustly 
derers. Whoever was arraigned at their bar 
was almost certain to meet a virulent prosecutor, a judge 
hardly distinguishable from the prosecutor except by his 
ermine, and a passive pusillanimous jury. Those who 
are acquainted only with our modern decent and dignified 
procedure can form little conception of the irregularity 
of ancient trials; the perpetual interrogation of the 
prisoner, which gives most of us so much offence at this 
day in the tribunals of a neighbouring kingdom; and 
the want of all evidence except written, perhaps unat- 
tested, examinations or confessions. Habington, one of 
the conspirators against Elizabeth's life in 1586, com- 
plained that two witnesses had not been brought against 
him, conformably to the statute of Edward VI. But 
Anderson the chief justice told him that, as he was in- 
dicted on the act of Edward III., that provision was not 
in force/ In the case of captain Lee, a partisan of 
Essex and Southampton, the court appear to have denied 
the right of peremptory challenge." Nor was more equal 

r State Trials, i. 1148. • Id. i. 12S6. 



232 STATE TRIALS Chap. V. 

measure dealt to the noblest prisoners by their equals. 
The earl of Arundel was convicted of imagining the 
queen's death, on evidence which at the utmost would 
only have supported an indictment for reconciliation to 
the church of Borne/ 

The integrity of judges is put to the proof as much by 
prosecutions for seditious writings as by charges of trea- 
son. I have before mentioned the convictions of Udal 
and Penry for a felony created by the 23rd of Eliza- 
beth ; the former of which especially must strike every 
reader of the trial as one of the gross judicial iniquities 
of this reign. But, before this sanguinary statute was 
enacted, a punishment of uncommon severity had been 
inflicted upon one Stubbe, a puritan lawyer, for a 
pamphlet against the queen's intended marriage with the 
duke of Anjou. It will be in the recollection of most of 
my readers that, in the year 1579, Elizabeth exposed 
herself to much censure and ridicule, and inspired the 
justest alarm in her most faithful subjects, by enter- 
taining, at the age of forty-six, the proposals of this 
young scion of the house of Valois. Her council, though 
several of them in their deliberations had much inclined 
against the preposterous alliance, yet in the end, dis- 
playing the compliance usual with the servants of self- 
willed princes, agreed, " conceiving," as they say, " her 
earnest disposition for this her marriage," to further it 
with all their power. Sir Philip Sidney, with more 
real loyalty, wrote her a spirited remonstrance, which 
she had the magnanimity never to resent." But she 

t State Trials, i. 1403. professed to favour it ; but this must have 

u Murden, 337. Dr. Lingard has fully been out of obsequiousness to the queen, 

established, what indeed no one could It was a habit of this minister to set 

reasonably have disputed, Elizabeth's down briefly the arguments on both sides 

passion for Anjou ; and says very truly, of a question, sometimes in parallel 

" the writers who set all this down to columns, sometimes successively ; a 

policy cannot have consulted the original method which would seem too formal in 

documents." p. 149. It was altogether our age, but tending to give himself and 

repugnant to sound policy. Persons, the others a clearer view of the case. He 

Jesuit, indeed says in his famous libel, has done this twice in the present in- 

Leicester's Commonwealth, written not stance— Murden, 322, 331; and it is evi- 

long after this time, that it would have dent that he docs not, and cannot, answer 

baen " honourable, convenient, profitable, his own objections to the match. When 

and needful ;" which every honest the council waited on her with this reso- 

Englishman would interpret by the rule lution in favour of the marriage, she 

of contraries. Sussex wrote indeed to spoke sharply to those whom she believed 

the queen in favour of the marriage to be against it Yet the treaty went on 

(Lodge, ii. 177) ; and Cecil undoubtedly for two years: her coquetry in this 



Eliz.— Government UNJUSTLY CONDUCTED. 233 

poured her indignation on Stubbe, who, not entitled to 
use a private address, had ventured to arouse a popular 
cry in his ' Gaping Gulph, in which England will be 
swallowed up by the French Marriage.' This pamphlet 
is very far from being, what some have ignorantly or 
unjustly called it, a virulent libel, but is written in a 
sensible manner, and with unfeigned loyalty and affection 
towards the queen. But, besides the main offence of 
addressing the people on state affairs, he had, in the 
simplicity of his heart, thrown out many allusions proper 
to hurt her pride, such as dwelling too long on the 
influence her husband would acquire over her, and im- 
ploring that she would ask her physicians whether to 
bear children at her years would not be highly dan- 
gerous to her life. Stubbe, for writing this pamphlet, 
received sentence to have his right hand cut off. When 
the penalty was inflicted, taking off his hat with his left, 
he exclaimed, " Long live queen Elizabeth !" Burleigh, 
who knew that his fidelity had borne so rude a test, 
employed him afterwards in answering some of the 
popish libellers/ 

There is no room for wonder at any verdict that could 
be returned by a jury, when we consider what means 
the government possessed of seeming it. The sheriff 
returned a panel, either according to express directions, 
of which we have proofs, or to what he judged himself 
of the crown's intention and interest/ If a verdict had 
gone against the prosecution in a matter of moment, the 
jurors must have laid their account with appearing 
before the star-chamber; lucky if they should escape, 
on humble retractation, with sharp words, instead of 
enormous fines and indefinite imprisonment. The con- 
trol of this arbitrary tribunal bound down and rendered 
impotent all the minor jurisdictions. That primaeval 
institution, those inquests by twelve true men, the una- 
dulterated voice of the people, responsible alone to God 
and their conscience, which should have been heard in 

strange delay breeding her, as Walsing- jointly with her good understanding, 

ham wrote from Paris, " greater dis- overcame a disgraceful inclination. 

honour than I dare commit to paper." * Strype, iii. 480. Stubbe always signed 

Strype's Annals, iii. 2. That she ulti> himself Scaeva in these left-handed pro- 

mately broke it eif must be ascribed to ductions. 

the suspiciousness and irresolution of her J Lodge, ii. 412; iii. 49. 

character, which, acting for once con- 



234 ILLEGAL COMMITMENTS. Chap. V. 

the sanctuaries of justice, as fountains springing fresh 
from the lap of earth, became, like waters constrained in 
their course by art, stagnant and impure. Until this 
weight that hung upon the constitution should be taken 
off, there was literally no prospect of enjoying with 
security those civil privileges which it held forth. 2 

It cannot be too frequently repeated that no power of 
arbitrary detention has ever been known to our consti- 
jj, . tution since the charter obtained at Runnymede. 
commit- The writ of habeas corpus has always been a 
ments. matter of right. But, as may naturally be ima- 
gined, no right of the subject, in his relation to the 
crown, was preserved with greater difficulty. Not only 
the privy council in general arrogated to itself a power 
of discretionary imprisonment, into which no inferior 
court was to inquire, but commitments by a single coun- 
cillor appear to have been frequent. These abuses gave 
rise to a remarkable complaint of the judges, which, 
though an authentic recognition of the privilege of per- 
sonal freedom against such irregular and oppressive acts 
of individual ministers, must be admitted to leave by far 
too great latitude to the executive government, and to 
surrender, at least by implication from rather obscure 
language, a great part of the liberties which many sta- 
tutes had confirmed. 11 This is contained in a passage 
from Chief Justice Anderson's Eeports. But as there ia 
an original manuscript in the British Museum, differing 
in some material points from the print, I shall follow it 
jn preference. 1 " 

" To the Rt: hon: our very good lords Sir Chr. Hatton, 
of the honourable order of the garter knight, and chan- 
cellor of England, and Sir W. Cecill of the hon: order 

z Several volumes of the Harleian the council to prefer his complaint See 

MSS. illustrate the course of government also vols. 6995, 6996, 6997, and many 

under Elizabeth. The copious analysis others. The Lansdowne catalogue will 

in the catalogue, by Humphrey Wanley furnish other evidences, 

and others, which I have in general found a Anderson's Reports, i. 297. It may 

accurate, will, for most purposes, be be found also in the Biographia Britan- 

sufflcient. See particularly vol. 703. A nica, and the Biographical Dictionary, 

letter, inter, alia, in this (folio 1), from art. Anderson. 

Lord Hunsdon and Walsingham to the b I^ansdowne MSS. lviii. 87. The 

sheriff of Sussex, directs him not to assist Harleian MS. 6846 is a mere transcript 

the creditors of John Ashburnham in from Anderson's Reports, and conse- 

molesting him " till such time as our quently of no value. There is another 

determination touching the premises shall in the same collection, at which I have 

be known," Ashburnham being to attend not looked. 



Eliz.— Government. RE-MONSTRANCES OF JUDGES. 235 

of the garter knight, Lord Burleigh, lord high treasurer 
of England, — We her majesty's justices, of hoth R e mon- 
benches, and barons of the exchequer, do desire trances 
your lordships that by your good means such against 
order may be taken that her highness's sub- them - 
jects may not be committed or detained in prison, by 
commandment of any nobleman or councillor, against 
the laws of the realm, to the grievous charges and 
oppression of her majesty's said subjects : Or else help 
us to have access to her majesty, to be suitors unto her 
highness for the same ; for divers have been imprisoned 
for suing ordinary actions, and suits at the common law, 
until they will leave the same, or against their wills put 
their matter to order, although some time it be after 
judgment and accusation. 

" Item : Others have been committed and detained in 
prison upon such commandment against the law ; and 
upon the queen's writ in that behalf, no cause sufficient 
hath been certified or returned. 

" Item: Some of the parties so committed and de- 
tained in prison after they have, by the queen*s writ, 
been lawfully discharged in court, have been eftsoones 
recommitted to prison in secret places, and not in com- 
mon and ordinary known prisons, as the Marshalsea, 
Fleet, King's Bench, Gatehouse, nor the custodie of any 
sheriff, so as, upon complaint made for their delivery, 
the queen's court cannot learn to whom to award her 
majesty's writ, without which justice cannot be done. 

" Item: Divers Serjeants of London and officers have 
been many times committed to prison for lawful exepu- 
tion of her majesty's writs out of the King's Bench, 
Common Pleas, and other courts, to their great charges 
and oppression, whereby they are put in such fear as 
they dare not execute the queen's process. 

" Item : Divers have been sent for by pursuivants for 
private causes, some of them dwelling far distant from 
London, and compelled to pay to the pursuivants great 
sums of money against the law, and have been com- 
mitted to prison till they would release the lawful 
benefit of their suits, judgments, or executions for 
remedie, in which behalf we are almost daily called 
upon to minister justice according to law, whereunto we 
are bound by our office and oath. 



236 - PROCLAMATIONS Chap. V. 

" And whereas it pleased your lordships to will divers 
of us to set down when a prisoner sent to custody by her 
majesty, her eouncil, or some one or two of them, is to 
be detained in prison, and not to be delivered by her 
majesty's courts or judges : 

" We think that, if any person shall be committed by 
her majesty's special commandment, or by order from 
the council-board, or for treason touching her majesty's 
person [a word of five letters follows, illegible to me], 
which causes being generally returned into any court, is 
good cause for the same court to leave the person com- 
mitted in custody. 

" But if any person shall be committed for any other 
cause, then the same ought specially to be returned." 

This paper bears the original signatures of eleven 
judges. It has no date, but is endorsed 5 June, 1591. 
In the printed report it is said to have been delivered 
in Easter term 34 Eliz., that is, in 1592. The chan- 
cellor Hatton, whose name is mentioned, died in No- 
vember, 1591 ; so that, if there is no mistake, this must 
have been delivered a second time, after undergoing the 
revision of the judges. And in»fact the differences are 
far too material to have proceeded from accidental care- 
lessness in transcription. The latter copy is fuller, and 
on the whole more perspicuous, than the manuscript I 
have followed ; but in one or two places it will be better 
understood by comparison with it. 

It was a natural consequence, not more of the high 
notions entertained of prerogative than of the 
ttons un- a " very irregular and infrequent meeting of parlia- 
warranted ment, that an extensive and somewhat indefi- 
nite authority should be arrogated to proclama- 
tions of the king in council. Temporary ordinances, 
bordering at least on legislative authority, grow out of 
the varying exigencies of civil society, and will by very 
necessity be put up with in silence, wherever the con- 
stitution of the commonwealth does not directly or in 
effect provide for frequent assemblies of the body in 
whom the right of making or consenting to laws has 
been vested. Since the English constitution has reached 
its zenith, we have endeavoured to provide a remedy by 
statute for every possible mischief or inconvenience ; 
and if this has swollen our code to an enormous redun^ 



Euz.— Government. UNWARRANTED BY LAW. 237 

dance, till, in the labyrinth of written law, we almost 
feel again the uncertainties of arbitrary power, it has at 
least put an end to such exertions of prerogative as fell 
at once on the persons and properties of whole classes. 
It seems, by the proclamations issued under Elizabeth, 
that the crown claimed a sort of supplemental right of 
legislation, to perfect and carry into effect what the 
spirit of existing laws might require, as well as a para- 
mount supremacy, called sometimes the king's absolute 
or sovereign power, which sanctioned commands beyond 
the legal prerogative, for the sake of public safety, 
whenever the council might judge that to be in hazard. 
Thus we find anabaptists, without distinction of natives 
or aliens, banished the realm ; Irishmen commanded to 
depart into Ireland; the culture of woad, c and the ex- 
portation of corn, money, and various commodities pro- 
hibited ; the excess of apparel restrained. A proclama- 
tion in 1 580 forbids the erection of houses within three 
miles of London, on account of the too great increase of 
the city, under the penalty of imprisonment and forfei- 
ture of the materials.* 1 This is repeated at other times, 
and lastly (I mean during her reign) in 1602, with addi- 
tional restrictions." Some proclamations in this reign 
hold out menaces which the common law could never 
have executed on the disobedient. To trade with the 
French king's rebels, or to export victuals into the 
Spanish dominions (the latter of which might possibly 
be construed into assisting the queen's enemies), incurred 
the penalty of treason. And persons having in their 
possession goods taken on the high seas, which had not 
paid customs, are enjoined to give them up, on pain of 
being punished as felons and pirates.' Notwithstanding 
these instances, it cannot perhaps be said on the whole that 
Elizabeth stretched her authority very outrageously in 
this respect. Many of her proclamations, which may at 

c Hume says " that the queen had of excise upon it at home. Catalogue of 

taken a dislike to the smell of this useful Lansdowne MSS. xlix. 32-60. The same 

plant." But this reason, if it existed, principle has since caused the prohibition 

would hardly have induced her to pro- of sowing tobacco, 

hibit its cultivation throughout the king- d Camden, 476. 

dom. The real motive appears in several e Rymer, xvi. 448. 

letters of the Lansdowne collection. By ' Many of these proclamations are 

the domestic culture of woad the ens- scattered through Rymer ; and the whole 

toms on its importation were reduced ; have been collected in a volume, 
and this led to a project of levying a sort 



238 RESTRICTIONS ON PRINTING. Chap. V. 

first sight appear illegal, are warrantable by statutes 
then in force, or by ancient precedents. Thus the 
council is empowered by an act, 28 H. 8, c. 14, to fix 
the prices of wines ; and abstinence from flesh in Lent, 
as well as on Fridays and Saturdays (a common subject 
of Elizabeth's proclamations), is enjoined by several 
statutes of Edward VI. and of her own. g And it has 
been argued by some not at all inclined to diminish any 
popular rights, that the king did possess a prerogative 
by common law of restraining the export of corn and 
other commodities. 11 

It is natural to suppose that a government thus arbi- 
Restrktions trary and vigilant must have looked with ex- 
on printing, treme jealousy on the diffusion of free inquiry 
through the press. The trades of printing and book- 
selling, in fact, though not absolutely licensed, were 
always subject to a sort of peculiar superintendence. 
Besides protecting the copyright of authors, 1 the council 
frequently issued proclamations to restrain the importa- 
tion of books, or to regulate their sale. k It was penal to 
utter, or so much as to possess, even the most learned 
works on the catholic side ; or if some connivance was 
usual in favour of educated men, the utmost strictness 
was used in suppressing that light infantry of literature, 
the smart and vigorous pamphlets with which the two 
parties arrayed against the church assaulted her opposite 
flanks. 1 Stow, the well-known chronicler of England, 
who lay under suspicion of an attachment to popery, 
had his library searched by warrant, and his unlawful 



8 By a proclamation in 1560, butchers k Strype's Parker, 221. By the 51st 

killing flesh in Lent are made subject to of the queen's injunctions, in 1559, no one 

a specific penalty of 20?. ; which was might print any book or paper wbat- 

levied upon one man. Strype's Annals, soever unless the same be first licensed 

i. 235. This seems to have been illegal, by the council or ordinary. 

h Lord Camden, in 1766. See Har- 1 A proclamation, dated Feb. 1589, 

grave's preface to Hale de Jure Corona}, against seditious and schismatical books 

in Law Tracts, vol. i. and writings, commands all persons who 

i We find an exclusive privilege granted shall have in their custody any such libels 

in 1563 to Thomas Cooper, afterwards against the order and government of the 

bishop of Winchester, to print his The- church of England, or the rites and cere- 

saurus, or Latin dictionary, for twelve monies used in it, to bring and deliver up 

years— Rymer, xv. 620; and to Richard the same with convenient speed to their 

Wright to print his translation of Tacitus ordinary. Life of Whitgift, Appendix, 

during his natural life ; anyone infring- 126. This has probably been one cause 

ing this privilege to forfeit 40s. for every of the extreme scarcity of the puritanical 

printed copy. Id. xvi. 97. pamphlets 



ELiz.— Government. RESTRICTIONS ON PRINTING. 239 

books taken away ; several of which were but materials 
for his history.™ Whitgift, in this, as in every other 
respect, aggravated the rigour of preceding times. At 
his instigation the star-chamber, 1585, published ordi- 
nances for the regulation of the press. The preface to 
these recites " enormities and abuses of disorderly per- 
sons professing the art of printing and selling books . to 
have more and more increased in spite of the ordinances 
made against them, which it attributes to the inade- 
quacy of the penalties hitherto inflicted. Every printer 
therefore is enjoined to certify his presses to the Sta- 
tioners' Company, on pain of having them defaced, and 
suffering a year's imprisonment. None to print at all, 
under similar penalties, except in London, and one in 
each of the two universities. No printer who has only 
set up his trade within six months to exercise it any 
longer, nor any to begin it in future until the excessive 
multitude of printers be diminished and brought to such 
a number as the archbishop of Canterbury and bishop of 
London for the time being shall think convenient ; but 
whenever any addition to the number of master printers 
shall be required, the Stationers' Company shall select 
proper persons to use that (sailing with the approbation 
of the ecclesiastical commissioners. None to print any 
book, matter, or thing whatsoever, until it shall have 
been first seen, perused, and allowed by the archbishop 
of Canterbury or bishop of London, except the queen's 
printer, to be appointed for some special service, or 
law-printers, who shall require the licence only of the 
chief justices. Every one selling books printed contrary 
to the intent of this ordinance to suffer three months' 
imprisonment. The Stationers' Company empowered to 
search houses and shops of printers and booksellers, and 
to seize all books printed in contravention of this ordi- 
nance, to destroy and deface the presses, and to arrest 
and bring before the council those who shall have 
offended therein." 

*" Strype's Grindal, 124, and Append, favouring the two parties adverse to the 

43, where a list of these books is given. church, he permitted nothing to appear 

n Strype's Whitgift, 222, and Append, that interfered in the least with his own 

94. The archbishop exercised his power notions. Thus we find him seizing an 

over the press, as may be supposed, edition of some works of Hugh Brough- 

with little moderation. Not confining ton, an eminent Hebrew scholar. This 

himself to the suppression of books learned divine differed from Whitgift 



240 MARTIAL LAW. Chap. V. 

The forms of English law, however inadequate to de- 
fend the subject in state prosecutions, imposed a degree 
of seeming restraint on the crown, and wounded that 
pride which is commonly a yet stronger sentiment than 
the lust of power with princes and their counsellors. 
It was possible that juries might absolve a prisoner ; it 
was always necessary that they should be the arbiters 
of his fate. Delays too were interposed by the regular 
process ; not such, perhaps, as the life of man should 
require, yet enough to weaken the terrors of summary 
punishment. Kings love to display the divinity with 
which their flatterers invest them in nothing so much as 
the instantaneous execution of their will, and to stand 
revealed, as it were, in the storm and thunderbolt, when 
their power breaks through the operation of secondary 
causes, and awes a prostrate nation without the inter- 
vention of law. There may indeed be times of pressing 
danger, when the conservation of all demands the sacrifice 
of the legal rights of a few ; there may be circumstances 
that not only justify, but compel, the temporary aban- 
donment of constitutional forms. It has been usual for 
all governments, during an actual rebellion, to proclaim 
martial law, or the suspension of civil jurisdiction. And 
this anomaly, I must admit, is very far from being less 
indispensable at such unhappy seasons, in countries 
where the ordinary mode of trial is by jury, than where 
the right of decision resides in the judge. But it is of 
high importance to watch with extreme jealousy the 
disposition towards which most governments are prone, to 
introduce too soon, to extend too far, to retain too long, 
so perilous a remedy. In the fourteenth and fifteenth 
centuries the court of the constable and marshal, whose 
jurisdiction was considered as of a military nature, and 
whose proceedings were not according to the course of 
the common law, sometimes tried offenders by what was 
called martial law, but only, I believe, either during, or 
not long after, a serious rebellion. This tribunal fell 
into disuse under the Tudors. But Mary had executed 
some of those taken in Wyatt's insurrection without 

about Christ's descent to hell. It is candour, is also a glaring evidence of the 

amusing to read that ultimately the advantages of that free inquiry he had 

primate came over to Broughton's opi- sought to suppress. P. 384, 431. 
nion : which, if it proves some degree of 



Eliz.— Government. MARTIAL LAW. 241 

regular process, though their leader had his trial by a 
jury. Elizabeth, always hasty in passion and quick to 
punish, would have resorted to this summary course on 
a slighter occasion. One Peter Burchell, a fanatical 
puritan, and perhaps insane, conceiving that sir Chris- 
topher Hatton was an enemy to true religion, deter- 
mined to assassinate him. But by mistake he wounded 
instead a famous seaman, captain Hawkins. For this 
ordinary crime the queen could hardly be prevented 
from directing him to be tried instantly by martial law. 
Her council, however (and this it is important to ob- 
serve), resisted this illegal proposition with spirit and 
success. We have indeed a proclamation some years 
afterwards, declaring that such as brought into the king- 
dom or dispersed papal bulls, or traitorous libels against 
the queen, should with all severity be proceeded against 
by her majesty's lieutenants or their deputies by martial 
law, and suffer such pains and penalties as they should 
inflict; and that none of her said lieutenants or their 
deputies be any wise impeached, in body, lands, or 
goods, at any time hereafter, for anything to be done or 
executed in the punishment of any such offender, accord- 
ing to the said martial law, and the tenor of this pro- 
clamation, any law or statute to the contrary in any wise 
notwithstanding. 1 " This measure, though by no means 
constitutional, finds an apology in the circumstances of 
the time. It bears date the 1st of July, 1588, when 
within the lapse of a few days the vast armament of 
Spain might effect a landing upon our coasts ; and pros- 
pectively to a crisis when the nation, struggling for life 
against an invader's grasp, could not afford the protection 
of law to domestic traitors. But it is an unhappy conse- 
quence of all deviations from the even course of law, 
that the forced acts of overruling necessity come to be 

° Camden, 449 ;Strype's Annals, ii. 288. It is said, which is full as strange, that 

The queen had been told, it seems, of the bishops were about to pass senteuce 

what was done in Wyatfs business, a on him for heresy, in having asserted 

case not at all parallel ; though there was that a papist might lawfully be killed, 

no sufficient necessity even in that in- He put an end, however, to this dilemma, 

stance to justify the proceeding by mar-* by cleaving the skull of one of the 

tial law. But bad precedents always keepers in the Tower, and was hanged in 

beget " progeniem vitiosiorem." a common way. 

There was a difficulty how to punish P Strype's Annals, iii. 570 ; Life of 

Burchell capitally, which probably sug- Whitgift, Append. 126. 
gested to the queen this strange expedient 

VOL. I. E 



242 MARTIAL LAW. Chap. V. 

distorted into precedents to serve the purposes of arbi- 
Martiai trary power. No other measure of Elizabeth's 
law. reign can be compared, in point of violence 
and illegality, to a commission in July, 1595, directed to 
sir Thomas Wilford, whereby, upon no other allegation 
than that there had been of late " sundry great unlawful 
assemblies of a number of base people in riotous sort, 
both in the city of London and the suburbs, for the sup- 
pression whereof (for that the insolency of many despe- 
rate offenders is such that they care not for any ordinary 
punishment by imprisonment) it was found necessary to 
have some such notable rebellious persons to be speedily 
suppressed by execution to death, according to the justice 
of martial law," he is appointed provost-rnartial, with 
authority, on notice by the magistrates, to attach and 
seize such notable rebellious and incorrigible offenders, 
and in the presence of the magistrates to execute them 
openly on the gallows. The commission empowers him 
also " to repair to all common highways near to the city 
which any vagrant persons do haunt, and, with the 
assistance of justices and constables, to apprehend all 
such vagrant and suspected persons, and them to deliver 
to the said justices, by them to be committed and exa- 
mined of the causes of their wandering, and, finding 
them notoriously culpable in their unlawful manner of 
life, as incorrigible, and so certified by the said justices, 
to cause to be executed upon the gallows or gibbet some 
of them that are so found most notorious and incorrigible 
offenders ; and some such also of them as have manifestly 
broken the peace since they have been adjudged and 
condemned to death for former offences, and had the 
queen's pardon for the same." q 

This peremptory style of superseding the common 
law was a stretch of prerogative without an adequate 
parallel, so far as I know, in any former period. It is 
to be remarked that no tumults had taken place of any 
political character or of serious importance, some riotous 
apprentices only having committed a few disorders/ But 
rather more than usual suspicion had been excited about 
the same time by the intrigues of the Jesuits in favour 
of Spain, and the queen's advanced age had begun to 

1 Rymer, xvi. 279. r Carte, 693, from Stow. 



Eliz.— Government. MARTIAL LAW. ' 243 

renew men's doubts as to the succession. The rapid 
increase of London gave evident uneasiness, as the pro- 
clamations against new buildings show, to a very cautious 
administration, environed by bold and inveterate enemies, 
and entirely destitute of regular troops to withstand a 
sudden insurrection. Circumstances of which we are 
ignorant, I do not question, gave rise to this extraordi- 
nary commission. The executive government in modern 
times has been invested with a degree of coercive power 
to maintain obedience of which our ancestors, in the 
most arbitrary reigns, had no practical experience. If 
we reflect upon the multitude of statutes enacted since 
the days of Elizabeth in order to restrain and suppress 
disorder, and, above all, on the prompt and certain aid 
that a disciplined army affords to our civil authorities, 
we may be inclined to think that it was rather the 
weakness than the vigour of her government which led 
to its inquisitorial watchfulness and harsh measures of 
prevention. We find in an earlier part of her reign an 
act of state somewhat of the same character, though 
not perhaps illegal. Letters were written to the sheriffs 
and justices of divers counties in 1569, directing them 
to apprehend, on a certain night, all vagabonds and idle 
persons having no master nor means of living, and either 
to commit them to prison or pass them to their proper 
homes. This was repeated several times ; and no less 
than 13,000 persons were thus apprehended, chiefly in 
the north, which, as Strype says, veiy much broke the 
rebellion attempted in that year." 

Amidst so many infringements of the freedom of com- 
merce, and with so precarious an enjoyment of personal 
liberty, the English subject continued to pride himself 
in his immunity from taxation without consent of parlia- 
ment. This privilege he had asserted, though not with 
constant success, against the rapacity of Henry VII. and 
the violence of his son. Nor was it ever disputed in 
theory by Elizabeth. She retained, indeed, notwith- 
standing the complaints of the merchants at her acces- 
sion, a custom upon cloths, arbitrarily imposed by her 
sister, and laid one herself upon sweet wines. But she 
made no attempt at levying internal taxes, except that 

* Strype's Annals, i. 535. 

r2 



244 LOANS OF MONEY Chap. V. 

the clergy were called upon, in 1586, for an aid not 
granted in convocation, but assessed by the archdeacon 
according to the value of their benefices, to which they 
naturally showed no little reluctance.' By dint of singu- 
lar frugality she continued to steer the true course, so as 
to keep her popularity undiminished and her prerogative 
unimpaired — asking very little of her subjects' money 
in parliaments, and being hence enabled both to have 
long breathing times between their sessions, and to meet 
them without coaxing or wrangling, till, in the latter years 
of her reign, a foreign war and a rebellion in Ireland, 
joined to a rapid depreciation in the value of money, 
rendered her demands somewhat higher. But she did 
not abstain from the ancient practice of sending privy- 
seals to borrow money of the wealthy. These were not 
considered as illegal, though plainly forbidden by the 
statute of Bichard III. ; for it was the fashion to set 
aside the authority of that act, as having been passed by 
an usurper. It is impossible to doubt that 
BMney°not Bac ^ i loans were so far obtained by compulsion, 
quite that any gentleman or citizen of sufficient 

vountary. gjyQjjy re f us i n g compliance would have dis- 
covered that it were far better to part with his money 
than to incur the council's displeasure. We have indeed 
a letter from a lord mayor to the council, informing them 
that he had committed to prison some citizens for re- 
fusing to pay the money demanded of them." But the 

t Strype, iii. Append. 147. This was a letter from the privy-council, directing 

exacted in order to raise men for service the charge to be taken off. It is only 

in the Low Countries. But the beneficed worth noticing as it illustrates the 

clergy were always bound to furnish jealousy which the people entertained of 

horses and armour, or their value, for the anything approaching to taxation with- 

defence of the kingdom in peril of inva- out consent of parliament, and the cau- 

sion or rebellion. An instance of their tion of the ministry in not pushing any 

being called on for such a contingent exertion of prerogative farther than 

occurred in 1569. Strype's Parker, 273; would readily be endured, 

and Rymer will supply many others in ° Murden, 632. That some degree of 

earlier times. intimidation was occasionally made use 

The magistrates of Cheshire and Lan- of may be inferred from the following 
cashire had imposed a charge of eight- letter of sir Henry Cholmley to the mayor 
pence a week on each parish of those and aldermen of Chester in 1597. He 
counties for the maintenance of recusants informs them of letters received by him 
in custody. This, though very nearly from the council, " whereby I am con- 
borne out by the letter of a recent statute, manded in all haste to require you that 
14th Eliz. c. 5, was conceived by the in- you and every of you send in your several 
habitants to be against law. We have, sums of money unto Torpley (Tarporly) 
in Strype's Annals, voL iii. Append. 56, on Friday next the 23rd December, or 



Eliz.— Government. NOT QUITE VOLUNTARY. 



245 



queen seems to have been punctual in their speedy re- 
payment according to stipulation, a virtue somewhat 
unusual with royal debtors. Thus we find a proclama- 
tion in 1571, that such as had lent the queen money in 
the last summer should receive repayment in November 
and December." Such loans were but an anticipation of 
her regular revenue, and no great hardship on rich 
merchants, who, if they got no interest for their money, 
were recompensed with knighthoods and gracious words. 
And as Elizabeth incurred no debt till near the conclu- 
sion of her reign, it is probable that she never had bor- 
rowed more than she was sure to repay. 

A letter quoted by Hume from lord Burleigh's papers, 
though not written by him, as the historian asserts, and 
somewhat obscure in its purport, appears to warrant the 
conclusion that he had revolved in his mind some pro- 
ject of raising money by a general contribution or bene- 
volence from persons of ability, without purpose of 
repayment. This was also amidst the difficulties of the 
year 1569, when Cecil perhaps might be afraid of meet- 



else that you and every of you give me 
meeting there, the said day and place, to 
enter severally into bond to her highness 
for your appearance forthwith before 
their lordships, to show cause wherefore 
you and every of you should refuse to 
pay her majesty loan according to her 
highness' several privy-seals by you 
received letting you wit that I am now 
directed by other letters from their lord- 
ships to pay over the said money to the 
use of her majesty, and to send and 
certify the said bonds so taken; which 
praying you heartily to consider of as the 
last direction of the service, I heartily 
bid you farewell." Harl. MSS. 2173, 10. 
* Strype, ii. 102. In Haynes, p. 518, 
is the form of a circular letter or privy- 
seal, as it was called from passing that 
office, sent in 1569, a year of great dif- 
ficulty, to those of whose aid the queen 
stood in need. It contains a promise of 
repayment at the expiration of twelve 
months. A similar application was made, 
through the lord-lieutenants in their 
several counties, to the wealthy and well- 
disposed, in 1588, immediately after the 
destruction of the Armada. The loans 
are asked only for the space of a year, 
" as heretofore has been yielded unto her 



majesty in times of less need and danger, 
and yet always fully repaid." Strype, 
iii. 535. Large sums of money are said 
to have been demanded of the citizens 
of London in 1699. Carte, 675. It is 
perhaps to this year that we may refer a 
curious fact mentioned in Mr. Justice 
Button's judgment in the case of ship- 
money. " In the time of queen Elizabeth 
(he says), who was a gracious and a glo- 
rious queen, yet in the end of her reign, 
whether through covetousness or by 
reason of the wars that came upon her, I 
know not by what council she desired 
benevolence, the statute of 2nd Richard 
III. was pressed, yet it went so far that 
by commission and direction money was 
gathered in every inn of court; and I 
myself for my part paid twenty shillings. 
But when the queen was informed by 
her judges that this kind of proceeding 
was against law, she gave directions to 
pay all such sums as were collected back ; 
and so I (as all the rest of our house, and 
as I think of other houses too) had my 
twenty shillings repaid me again ; and 
privy councillors were sent down to all 
parts, to tell them that it was for the de- 
fence of the realm, and'it should be repaid 
them again." State Trials, iii. 1199. 



246 CHARACTER OF Chap. V. 

ing parliament, on account of the factions leagued against 
himself. But as nothing further was done in this matter, 
we must presume that he perceived the impracticability 
of so unconstitutional a scheme/ 

Those whose curiosity has led them to somewhat more 
Character acquaintance with the details of English history 
of lord Tinder Elizabeth than the pages of Camden or 
adminhi 8 Hume will afford, cannot but have been struck 
tration. with the perpetual interference of men in power 
with matters of private concern. I am far from pre- 
tending to know how far the solicitations for a prime 
minister's aid and influence may extend at present. Yet 
one may think that he would hardly be employed, like 
Cecil, where he had no personal connection, in recon- 
ciling family quarrels, interceding with a landlord for 
his tenant, or persuading a rich citizen to bestow his 
daughter on a young lord. We are sure, at least, that 
he would not use the air of authority upon such occasions. 
The vast collection of lord Burleigh's letters in the 
Museum is full of such petty matters, too insignificant 
for the most part to be mentioned even by Strype. 2 They 
exhibit, however, collectively, a curious view of the 
manner in which England was managed, as if it had 
been the household and estate of a nobleman under a 
strict and prying steward. We are told that the relaxa- 
tion of this minister's mind was to study the state of 
England and the pedigrees of its nobility and gentry ; 
of these last he drew whole books with his own hands, 
so that he was better versed in descents and families 
than most of the heralds, and would often surprise per- 
sons of distinction at his table by appearirjg better 

y Haynes, 518. Hume has exaggerated house, which will be disagreeable ; hopes 

this, like other facts, in his very able, but therefore Sir William C will speak in his 

partial, sketch of the constitution in behalf." Feb. 4, 1566. Id. 74. "Lord 

Elizabeth's reign. Stafford to lord Burleigh, to further a 

z The following are a few specimens, match between a certain rich citizen's 

copied from the Lansdowne catalogue : daughter and his son ; he requests lord 

" Sir Antony Cooke to Sir William Cecil, B. to appoint the father to meet him 

that he would .move Mr. Peters to re- (lord Stafford) some day at his house, 

commend Mr. Edward Stanhope to a ' where I will in few words make him so 

certain young lady of Mr. P.'s acquaint- reasonable an offer as I trust he will not 

ance, whom Mr. Stanhope was desirous disallow.' " lxviii. 20. " Lady Zouch to 

to marry." Jan. 25, 1563, Ixxi. 73. "Sir lord Burleigh, for his friendly interpo- 

John Mason to Sir William Cecil, that he sition to reconcile lord Zoueh, her hus- 

fears his young landlord, Spelman, has band, who had forsaken her through 

intentions of turning him out of his jealousy." 1593. lxxiv. 72. 



Euz.— Government. BURLEIGH'S ADMINISTRATION. 247 

acquainted with their manors, parks, and woods, than 
themselves." Such knowledge was not sought by the 
crafty Cecil for mere diversion's sake. It was a main 
part of his system to keep alive in the English gentry a 
persuasion that his eye was upon them. No minister 
was ever more exempt from that false security which 
is the usual weakness of a court. His failing was rather 
a bias towards suspicion and timidity ; there were times, 
at least, in which his strength of mind seems to have 
almost deserted him through sense of the perils of his 
sovereign and country. But those perils appears less to 
us, who know how the vessel outrode them, than they 
could do to one harassed by continual informations of 
those numerous spies whom he employed both at home 
and abroad. The one word of Burleigh's policy was 
prevention ; and this was dictated by a consciousness of 
wanting an armed force or money to support it, as well 
as by some uncertainty as to the public spirit in respect 
at least of religion. But a government that directs its 
chief attention to prevent offences against itself is in its 
very nature incompatible with that absence of restraint, 
that immunity from suspicion, in which civil liberty, as 
a tangible possession, may be said to consist. It appears 
probable that Elizabeth's administration carried too far, 
even as a matter of policy, this precautionary system 
upon which they founded the penal code against popery ; 
and we may surely point to a contrast very advantageous 
to our modern constitution in the lenient treatment 
which the Jacobite faction experienced from the princes 
of the house of Hanover. She reigned, however, in a 
period of real difficulty and danger. At such seasons 
few ministers will abstain from arbitrary actions, except 
those who are not strong enough to practise them. 

I have traced, in another work, the acquisition by the 
house of commons of a practical right to inquire 
into and advise upon the public administration f the 81 * 10 ' 
of affairs during the reigns of Edward III., houseof 

t^ •■ commons 

Bichard II., and the princes of the line of Lan- 
caster. This energy of parliament was quelled by the 
civil wars of the fifteenth century ; and, whatever may 
have passed in debates within its walls that have not 

. a Blographia Britannica, art. Cecil. 



248 DISPOSITION OF THE COMMONS. Chap. V. 

been preserved, did not often display itself in any overt 
act under the first Tudors. To grant subsidies which 
could not be raised by any other course, to propose 
statutes which were not binding without their consent, 
to consider of public grievances, and procure their 
redress either by law or petition to the crown, were 
their acknowledged constitutional privileges, which no 
sovereign or minister ever pretended to deny. For this 
end liberty of speech and free access to the royal person 
were claimed by the speaker as customaiy privileges 
(though not quite, in his modern language, as undoubted 
rights) at the commencement of every parliament. But 
the house of commons in Elizabeth's reign contained 
men of a bold and steady patriotism, well read in the 
laws and records of old time, sensible to the dangers of 
their country and abuses of government, and conscious 
that it was their privilege and their duty to watch over 
the common weal. This led to several conflicts between 
the crown and parliament, wherein, if the former often 
asserted the victory, the latter sometimes kept the field, 
and was left on the whole a gainer at the close of the 
campaign. 

It would surely be erroneous to conceive that many 
acts of government in the four preceding reigns had not 
appeared at the time arbitrary and unconstitutional. If 
indeed we are not mistaken in judging them according 
to the ancient law, they must have been viewed in the 
same light by contemporaries, who were full as able to 
try them by that standard. But, to repeat what I have 
once before said, the extant documents from which we 
draw our knowledge of constitutional history under 
those reigns are so scanty, that instances even of a suc- 
cessful parliamentary resistance to measures of the crown 
may have left no memorial. The debates of parliament 
are not preserved, and very little is to be gained from 
such histories as the age produced. The complete bar- 
renness indeed of Elizabeth's chroniclers, Hollingshed 
and Thin, as to every parliamentary or constitutional in- 
formation, speaks of itself the jealous tone of her adminis- 
tration. Camden, writing to the next generation, though 
far from an ingenuous historian, is somewhat less under 
restraint. This forced silence of history is much more 
to be suspected after the use of printing and the Befor- 



Eliz.— Government. ADDRESSES ON THE SUCCESSION. 249 

mation than in the ages when monks compiled annals in 
their convents, reckless of the censure of courts, because 
independent of their permission. Grosser ignorance of 
public transactions is undoubtedly found in the chro- 
nicles of the middle ages ; but far less of that deliberate 
mendacity, or of that insidious suppression, by which 
fear, and flattery, and hatred, and the thirst of gain, 
have, since the invention of printing, corrupted so much 
of historical literature throughout Europe. We begin, 
however, to find in Elizabeth's reign more copious and 
unquestionable documents for parliamentary history. 
The regular journals indeed are partly lost ; nor would 
those which remain give us a sufficient insight into the 
spirit of parliament without the aid of other sources. 
But a volume called Sir Simon D'Ewes's Journal, part 
of which is copied from a manuscript of Heywood 
Townsend, a member of all parliaments from 1580 to 
1601, contains minutes of the most interesting debates 
as well as transactions, and for the first time renders us 
acquainted with the names of those who swayed an 
English house of commons. 11 

There was no peril more alarming to this kingdom 
during the queen's reign than the precarious- 
ness of her life — a thread whereon its tran- concerning 
quillity, if not its religion and independence, **"* succes - 
was suspended. Hence the commons felt it an 
imperious duty not only to recommend her to marry, 
but, when this was delayed, to solicit that some limita- 
tions of the crown might be enacted in failure of her 
issue. The former request she evaded without ever 
manifesting much displeasure, though not sparing a hint 
that it was a little beyond the province of parliament. 
Upon the last occasion indeed that it was preferred, 
namely, by the speaker in 1575, she gave what from any 
other woman must have appeared an assent, and almost 
a promise. But about declaring the succession she was 
always very sensible. Through a policy not perhaps 
entirely selfish, and certainly not erroneous on selfish 
principles, she was determined never to pronounce 
among the possible competitors for the throne. Least 
of all could she brook the intermeddling of parliament in 

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



250 DIFFERENCE BETWEEN Chap. V. 

such a concern. The commons first took up this busi- 
ness in 1562, when there had begun to be much debate 
in the nation about the opposite titles of the queen of 
Scots and lady Catherine Grey : and especially in con- 
sequence of a dangerous sickness the queen had just 
experienced, and which is said to have been the cause of 
summoning parliament. Their language is wary, pray- 
ing her only by " proclamation of certainty already pro- 
vided, if any such be," alluding to the will of Henry 
VIII., " or else by limitations of certainty, if none be, to 
provide a most gracious remedy in this great necessity ;" c 
offering at the same time to concur in provisions to 
guarantee her personal safety against any one who might 
be limited in remainder. Elizabeth gave them a toler- 
ably courteous answer, though not without some intima- 
Difference tion of her dislike to this address.* 1 But at their 
between nex * meeting, which was not till 1566, the hope of 
the queen her own marriage having grown fainter, and the 
mons°ui' circumstances of the kingdom still more power- 
1566. fully demanding some security, bolh houses of 
parliament united, with a boldness of which there had 
perhaps been no example for more than a hundred years, 
to overcome her repugnance. Some of her own council 
among the peers are said to have asserted in their places 
that the queen ought to be obliged to take a husband, or 
that a successor should be declared by parliament against 
her will. She was charged with a disregard to the state 
and to posterity. She would prove, in the uncourtly 
phrase of some sturdy members of the lower house, a 
stepmother to her country, as being seemingly desirous 
that England, which lived as it were in her, should rather 
expire with than survive her; that kings can only gain 
the affections of their subjects by providing for their 
welfare both while they live and after their deaths ; nor 
did any but princes hated by their subjects, or faint- 
hearted women, ever stand in fear of their successors. 6 
But this great princess wanted not skill and courage to 

c D'Ewes, p. 82 ; Strype, i. 258 ; from abridgment of one which she made in 
which latter passage it seems that Cecil 1566 ; as D'Ewes himself afterwards con- 
was rather adverse to the proposal. fesses. Her real answer to the speaker 

d D'Ewes, p. 85. The speech which in 1563 is in Harrington's Nugae Anti- 
Hume, on r/Ewes's authority, has put quae, vol. i. p. 80. 
into the queen's mouth at the end of e Camden, p. 400. 
this session, is but an imperfect copy or 



Eliz.— Government. THE QUEEN AND COMMONS. 251 

resist this unusual importunity of parliament. The 
peers, who had forgotten their customary respectfulness, 
were excluded the presence-chamher till they made their 
submission. She prevailed on the commons, through 
her ministers who sat there, to join a request for her 
marriage with the more unpalatable alternative of nam- 
ing her successor ; and when this request was presented, 
gave them fair words and a sort of assurance that their 
desires should by some means be fulfilled/ When they 
continued to dwell on the same topic in their speeches, 
she sent messages through her ministers, and at length 
a positive injunction through the speaker, that they 
should proceed no further in the business. The house, 
however, was not in a temper for such ready acqui- 
escence as it sometimes displayed. Paul Wentworth, a 
bold and plain-spoken man, moved to know whether the 
queen's command and inhibition that they should no 
longer dispute of the matter of succession, were not 
against their liberties and privileges. This caused, as 
we are told, long debates, which do not appear to have 
terminated in any resolution. 15 But, more probably hav- 
ing passed than we know at present, the queen, whose 
haughty temper and tenaciousness of prerogative were 
always within check of her discretion, several days after 
announced through the speaker that she revoked her 
two former commandments ; " which revocation," says 
the journal, " was taken by the house most joyfully, 
with hearty prayer and thanks for the same." At the 
dissolution of this parliament, which was perhaps deter- 
mined upon in consequence of their steadiness, Elizabeth 
alluded, in addressing them, with no small bitterness to 
what had occurred. 11 

This is the most serious disagreement on record be- 
tween the crown and the commons since the days of 
Richard II. and Henry IV. Doubtless the queen's 
indignation was excited by the nature of the subject her 
parliament ventured to discuss, still more than by her 
general disapprobation of their interference in matters 
of state. It was an endeavour to penetrate the great 

f The courtiers told the house that the 6 D'Ewes, p. 128. 

queen intended to marry, in order to divert h Id. p. 116. Journals, 8th Oct., 25th 

them from their request that they would Nov., 2nd Jan. 
name her successor. Strype, vol. i. p. 494. 



252 SESSION OF 1571. Chap. V. 

secret of her reign, in preserving which she conceived 
her peace, dignity, and personal safety to be bound up. 
There were, in her opinion, as she intimates in her speech 
at closing the session, some underhand movers of this 
intrigue (whether of the Scots or Suffolk faction does not 
appear), who were more to blame than even the speakers 
in parliament. And if, as Cecil seems justly to have 
thought, no limitations of the crown could at that time 
have been effected without much peril and inconvenience, 
we may find some apology for her warmth about their 
precipitation in a business which, even according to our 
I present constitutional usage, it would naturally be for 
the government to bring forward. It is to be collected 
from Wentworth's motion, that to deliberate on subjects 
affecting the commonwealth was reckoned, by at least a 
large part of the house of commons, one of their ancient 
privileges and liberties. This was not one which Eliza- 
beth, however she had yielded for the moment in revok- 
ing her prohibition, ever designed to concede to them. 
Such was her frugality, that, although she had remitted 
a subsidy granted in this session, alleging the very 
honourable reason that, knowing it to have been voted 
in expectation of some settlement of the succession, she 
would not accept it when that implied condition had not 
been fulfilled, she was able to pass five years without 
Session again convoking her people. A parliament 
of i5H. m et in April, 1571, when the lord keeper 
Bacon, 1 in answer to the speaker's customary request for 
freedom of speech in the commons, said that " her ma- 
jesty having experience of late of some disorder and 
certain offences, which, though they were not punished, 
yet were they offences still, and so must be accounted, 
they would therefore do well to meddle with no matters 
of state but such as should be propounded unto them, 
and to occupy themselves in other matters concerning 
the commonwealth." 

The commons so far attended to this intimation that 

no proceedings about the succession appear to 

of the" 06 have taken place in this parliament, except such 

puritans in as we re calculated to gratify the queen. We 

may perhaps except a bill attainting the queen 

l D'Ewes, p. 141. 



Eliz.— Government. INFLUENCE OF PURITANS. 253 

of Scots, which was rejected in the upper house. But 
they entered for the first time on a new topic, which did 
not cease for the rest of this reign to furnish matter of 
contention with their sovereign. The party called 
puritan, including such as charged abuses on the actual 
government of the church, as well as those who objected 
to part of its lawful discipline, had, not a little in con- 
sequence of the absolute exclusion of the catholic gentry, 
obtained a very considerable strength in the commons. 
But the queen valued her ecclesiastical supremacy more 
than any part of her prerogative. Next to the succession 
of the crown, it was the point she could least endure to 
be touched. The house had indeed resolved, upon read- 
ing a bill the first time for reformation of the Common 
Prayer, that petition be made to the queen's majesty for 
her licence to proceed in it before it should be farther 
dealt in. But Strickland, who had proposed it, was sent 
for to the council, and restrained from appearing again 
in his place, though put under no confinement. This 
was noticed as an infringement of their liberties. The 
ministers endeavoured to excuse his detention, as not 
intended to lead to any severity, nor occasioned by any- 
thing spoken in that house, but on account of his intro- 
ducing a bill against the prerogative of the queen, which 
was not to be tolerated. And instances were quoted of 
animadversion on speeches made in parliament. But 
Mr. Yelverton maintained that all matters not treason- 
able, nor too much to the derogation of the imperial 
crown, were tolerable there, where all things came to be 
considered, and where there was such fulness of power ^ 
as even the right of the crown was to be determined, 
which it would be high treason to deny. Princes were 
to have their prerogatives, but yet to be confined within 
reasonable limits. The queen could not of herself make 
laws, neither could she break them. This was the true 
voice of English liberty, not so new to men's ears as 
Hume has imagined, though many there were who would 
not forfeit the court's favour by uttering it. Such 
speeches as the historian has quoted of sir Humphrey 
Gilbert, and many such may be found in the proceedings 
of this reign, are rather directed to intimidate the house 
by exaggerating their inability to contend with the crown, 
than to prove the law of the land to be against them. In 



254 INFLUENCE OF PURITANS. ' Chap. V. 

the present affair of Strickland it became so evident that 
the commons would at least address the queen to restore 
him, that she adopted the course her usual prudence in- 
dicated, and permitted his return to his house. But she 
took the reformation of ecclesiastical abuses out of their 
hands, sending word that she would have some articles 
for that purpose executed by the bishops under her royal 
supremacy, and not dealt in by parliament. This did 
not prevent the commons from proceeding to send up 
some bills in the upper house, where, as was natural to 
expect, they fell to the ground. 15 

This session is also remarkable for the first marked 
complaints against some notorious abuses which defaced 
the civil government of Elizabeth.™ A member having 
rather prematurely suggested the offer of a subsidy, 
several complaints were made of irregular and oppressive 
practices, and Mr. Bell said that licences granted by the 
crown and other abuses galled the people, intimating 
also that the subsidy should be accompanied by a re- 
dress of grievances. 11 This occasion of introducing the 
subject, though strictly constitutional, was likely to 
cause displeasure. The speaker informed them a few 
days after of a message from the queen to spend little 
time in motions, and make no long speeches. And Bell, 
it appears, having been sent for by the council, came 
into the house " with such an amazed countenance, that 
it daunted all the rest," who for many days durst not enter 
on any matter of importance. p It became the common 
whisper, that no one must speak against licences, lest 
the queen and council should be angry. And, at the 
close of the session, the lord keeper severely reprimanded 
those audacious, arrogant, and presumptuous members, 
who had called her majesty's grants and prerogatives in 
question, meddling with matters neither pertaining to 
them, nor within the capacity of their understanding.** 

The parliament of 1572 seemed to give evidence of 
their inheriting the spirit of the last by choosing Mr. 

k D'Ewes, 156, &c. There is no to the speaker for calling her majesty's 

mention of Strickland's business in the letters patent in question. Id. 115. 
journal. n Id. 158. Journals, 7 Apr. 

m Something of this sort seems to have ° Journals, 9 and 10 Apr. 
occurred in the session of 1566, as may P D'Ewes, 159. 
be inferred from the lord keeper's reproof 1 Id. 151. 



Eliz.— Government. SPEECH OF MR. WENTWORTH. 255 

Bell for their speaker/ But very little of it appeared in 
their proceedings. In their first short session, chiefly 
occupied by the business of the queen of Scots, the most 
remarkable circumstances are the following. The com- 
mons were desirous of absolutely excluding Mary from 
inheriting the crown, and even of taking away her life, 
and had prepared bills with this intent. But Elizabeth, 
constant to her mysterious policy, made one of her 
ministers inform them that she would neither have the 
queen of Scots enabled nor disabled to succeed, and willed 
that the bill respecting her should be drawn by her 
council : and that in the mean time the house should not 
enter on any speeches or arguments on that matter.' 
Another circumstance worthy of note in this session is 
a signification, through the speaker, of her majesty's 
pleasure that no bills concerning religion should be 
received, unless they should be first considered and 
approved by the clergy, and requiring to see certain bills 
touching rites and ceremonies that had been read in the 
house. The bills were accordingly ordered to be de- 
livered to her, with a humble prayer that, if she should 
dislike them, she would not conceive an ill opinion of 
the house, or of the parties by whom they were pre- 
ferred.' ; 

The submissiveness of this parliament was doubtless 
owing to the queen's vigorous dealings with the 
last. At their next meeting, which was not iir/went- 
till February 1575-6, Peter Wentworth, brother ^ hln 
I believe of the person of that name before- 
mentioned, broke out, in a speech of uncommon boldness, 
against her arbitrary encroachments on their privileges. 
The liberty of free speech, he said, had in the two last 
sessions been so many ways infringed, that they were in 
clanger, while they contented themselves with the name, 
of losing and foregoing the thing. It was common for 
a rumour to spread through that house, " the queen likes 
or dislikes such a matter ; beware what you do." Mes- 

r Bell, I suppose, had reconciled him- quent. In Strype's Annals, voL iv. p. 124, 
self to the court, which would have we find instructions for the speaker's 
approved no speaker chosen without its speech in 1592, drawn up by lord Bur- 
recommendation. There was always an leigh, as might very likely be the case on 
understanding between this servant of other occasions, 
the house and the government. Proofs • D"Ewes, 219. 
or presumptions of this are not unfre- t Id. 213, 214. 



256 WENTWORTH SENT TO THE TOWER. Chap. V. 

sages were even sometimes brought down either com- 
manding or inhibiting, very injurious to the liberty of 
debate. He instanced that in the last session restraining 
the house from dealing in matters of religion ; against 
which and against the prelates he inveighed with great 
acrimony. With still greater indignation he spoke of 
the queen's refusal to assent to the attainder of Mary ; 
and, after surprising the house by the bold words, " none 
is without fault, no, not our noble queen, but has com- 
mitted great and dangerous faults to herself," went on to 
tax her with ingratitude and unkindness to her subjects, 
in a strain perfectly free indeed from disaffection, but of 
more rude censure than any kings would put up with." 

This direct attack upon the sovereign in matters relat- 
ing to her public administration seems no doubt unpar- 
liamentary ; though neither the rules of parliament in 
this respect, nor even the constitutional principle, were 
so strictly understood as at present. But it was part of 
Elizabeth's character to render herself extremely pro- 
minent, and, as it were, responsible in public esteem for 
every important measure of her government. It was 
difficult to consider a queen as acting merely by the 
advice of ministers who protested in parliament that 
they had laboured in vain to bend her heart to their 
counsels. The doctrine that some one must be respon- 
sible for every act of the crown was yet perfectly un- 
known ; and Elizabeth would have been the last to adopt 
a system so inglorious to monarchy. But Wentworth 
had gone to a length which alarmed the house of com- 
mons. They judged it expedient to prevent an un- 
pleasant interference by sequestering their member, and 
appointing a committee of all the privy councillors in 
the house to examine him. Wentworth declined their 
authority, till they assured him that they sat as members 
of the commons and not as councillors. After a long 
examination, in which he not only behaved with intre- 
pidity, but, according to his own statement, reduced 
them to confess the truth of all he advanced, they made 
a report to the house, who committed him to the Tower. 
He had lain there a month when the queen sent word 
that she remitted her displeasure towards him, and 

11 D'Ewes, 236. 



Eliz.— Government. MR. COPE'S BILL AND BOOK. 257 

referred his enlargement to the house, who released him 
upon a reprimand from the speaker, and an acknowledg- 
ment of his fault upon his knees." In this commitment 
of Wentworth it can hardly be said that there was any- 
thing, as to the main point, by which the house sacri- 
ficed its acknowledged privileges. In later instances, 
and even in the reign of George I., members have been 
committed for much less indecent reflections on the 
sovereign. The queen had no reason upon the whole to 
be ill-pleased with this parliament, nor was she in haste 
to dissolve it, though there was a long intermission of its 
sessions. The next was in 1581, when the chancellor, 
on confirming a new speaker, did not fail to admonish 
him that the house of commons should not intermeddle 
in anything touching her majesty's person or estate, or 
church government. They were supposed to disobey 
this injunction, and fell under the,queen's displeasure, 
by appointing a public fast on their own authority, 
though to be enforced on none but themselves. This 
trifling resolution, which showed indeed a little of the 
puritan spirit, passed for an encroachment on the supre- 
macy, and was only expiated by a humble apology/ It 
is not till the month of February, 1587-8, that the zeal 
for ecclesiastical reformation overcame in some measure 
the terrors of power, but with no better success than 
before. A Mr. Cope offered to the house, we are in- 
formed, a bill and a book, the former annulling all laws 
respecting ecclesiastical government then in force, and 
establishing a certain new form of common prayer con- 
tained in the latter. The speaker interposed to prevent 
this bill from being read, on the ground that her majesty 
had commanded them not to meddle in this matter. 
Several members however spoke in favour of hearing it 
read, and the day passed in debate on this subject. Before 
they met again the queen sent for the speaker, who 
delivered up to her the bill and book. Next time that 
the house sat Mr. Wentworth insisted that some ques- 
tions of his proposing should be read. These queries 
were to the following purport: "Whether this council 
was not a place for any member of the same, freely and 
without control, by bill or speech, to utter any of the 

* iyEwes, 260. y Id. 2S2. 

VOL. I. S 



258 ATTEMPTS OF THE COMMONS Chap. V. 

griefs of this commonwealth ? Whether there be any 
council that can make, add, or diminish from the laws of 
the realm, but only this council of parliament ? Whether 
it be not against the orders of this council to make any 
secret or matter of weight, which is here in hand, known 
to the prince or any other, without consent of the hoiise ? 
Whether the speaker may overrule the house in any 
matter or cause in question ? Whether the prince and 
state can continue and stand, and be maintained, without 
this council of parliament, not altei'ing the government 
of the state ? " These questions serjeant Pickering, the 
speaker, instead of reading them to the house, showed to 
a courtier, through whese means Wentworth was com- 
mitted to the Tower. Mr. Cope, and those who had 
spoken in favour of his motion, underwent the same fate ; 
and, notwithstanding some notice taken of it in the 
house, it does not appear that they were set at liberty 
before its dissolution, which ensued in three weeks. 2 
Yet the commons were so set on displaying an ineffec- 
tual hankering after reform, that they appointed a com- 
mittee to address the queen for a learned ministry. 

At the beginning of the next parliament, which met in 
The com- 1588-9, the speaker received an admonition that 
«nue to" 1 " ^ e nouse w ere not to extend their privileges 
seek redress to any irreverent or misbecoming speech. In 
ticaTgrfev^" tn ^ s session Mr. Damport, we are informed by 
ances. D'Ewes," moved " neither for making of any 

new laws, nor for abrogating of any old ones, but for a 
due course of proceeding in laws already established, 
but executed by some ecclesiastical governors contrary 
both to their purport and the intent of the legislature, 
which he proposed to bring into discussion." So cautious 
a motion saved its author from the punishment which 
had attended Mr. Cope for his more radical reform ; but 
the secretary of state, reminding the house of the queen's 
express inhibition from dealing with ecclesiastical causes, 
declared to them by the chancellor at the commence- 
ment of the session (in a speech which does not appear), 
prevented them from taking any further notice of Mr. 
Damport's motion. They narrowly escaped Elizabeth's 
displeasure in attacking some civil abuses. Sir Edward 

* D'Ewes, 410. man Davenport, which no doubt was 

a P. 438. Townsend calls this gentle- his true name. 



Eliz.— Government. TO REDRESS ABUSES. 259 

Hobby brought in a bill to prevent certain exactions 
made for their own profit by the officers of the exchequer. 
Two days after he complained that he had been very 
sharply rebuked by some great personage, not a member 
of the house, for his speech on that occasion. But in- 
stead of testifying indignation at this breach of their 
privileges, neither he nor the house thought of any fur- 
ther redress than by exculpating him to this great per- 
sonage, apparently one of the ministers, and admonishing 
their members not to repeat elsewhere anything uttered 
in their debates. b For the bill itself, as well as one 
intended to restrain the flagrant abuses of purveyance, 
they both were passed to the lords. But the queen sent 
a message to the upper house, expressing her dislike of 
them, as meddling with abuses which, if they existed, 
she was both able and willing to repress ; and this hav- 
ing been formally communicated to the commons, they 
appointed a committee to search for precedents in order 
to satisfy her majesty about their proceedings. They 
received afterwards a gracious answer to their address, 
the queen declaring her willingness to afford a remedy 
for the alleged grievances. 

Elizabeth, whose reputation for consistency, which 
haughty princes overvalue, was engaged in protecting 
the established hierarchy, must have experienced not a 
little vexation at the perpetual recurrence of complaints 
which the unpopularity of that order drew from every 
parliament. The speaker of that summoned in 1593 
received for answer to his request of liberty of speech, 
that it was granted, " but not to speak every one what 
he listeth, or what cometh into his brain to utter ; their 
privilege was ay or no. Wherefore, Mr. Speaker," 
continues the lord keeper Pickering, himself speaker 
in the parliament of 1588, " her majesty's pleasure is, 
that if you perceive any idle heads which will not stick 
to hazard their own estates, which will meddle with 
reforming the church and transforming the common- 
wealth, and do exhibit such bills to such purpose, that 
you receive them not, until they be viewed and con- 
sidered by those who it is. fitter should consider of such 
things, and can better judge of them." It seems net 

b D'Ewes, 433. c Id. 440, et post. 

S 2 



2 GO COMMITTAL OF MORICE. Chap. V. 

improbable that this admonition, which indeed is in 
no unusual style for this reign, was suggested by the 
expectation of some unpleasing debate. For we read 
that the very first day of the session, though the commons 
had adjourned on account of the speaker's illness, the 
unconquerable Peter Wentworth, with another member, 
presented a petition to the lord keeper, desiring " the 
lords of the upper house to join with them of the lower 
in imploring her majesty to entail the succession of the 
crown, for which they had already prepared a bill." 
This step, which may seem to us rather arrogant and 
unparliamentary, drew down, as they must have ex- 
pected, the queen's indignation. They were summoned 
before the council, and committed to different prisons.* 
A few days afterwards a bill for reforming the abuses of 
ecclesiastical courts was presented by Morice, attorney 
of the court of wards, and underwent some discussion in 
the house. 6 But the queen sent for the speaker, and 
expressly commanded that no bill touching matters of 
state or reformation of causes ecclesiastical should be 
exhibited ; and if any such should be offered, enjoining 
him on his allegiance not to read it. f It was the custom 
at that time for the speaker to read and expound to the 
house -all the bills that any member offered. Morice 
himself was committed to safe custody, from which he 
wrote a spirited letter to lord Burleigh, expressing his 
sorrow for having offended the queen, but at the same 
time his resolution " to strive," he says, " while his life 
should last, for freedom of conscience, public justice, 
and the liberties of his country." g Some days after, a 
motion was made that, as some places might complain 
of paying subsidies, their representatives not having 
been consulted nor been present when they were 
granted, the house should address the queen to set their 
members at liberty. But the ministers opposed this, as 
likely to hurt those whose good was sought, her majesty 
being more likely to release them if left to her own 
gracious disposition. It does not appear however that 
she did so during the session, which lasted above a 
month. h We read, on the contrary, in an undoubted 

d TVEwes, 470. tions, vol. iii. 34. Townsend says he was 

e Id. 474 ; Townsend, 60. committed to Sir John Fortescue's keep- 

f Id. 62. ing, a gentler sort of imprisonment. P. 61. 

6 See the letter in Lodge's Illustra- h D'Ewes, 470. 



Eliz.— Government. MONOPOLIES. 261 

authority, namely a letter of Antony Bacon to his mother, 
that " divers gentlemen who were of the parliament, and 
thought to have returned into the country after the end 
thereof, were stayed by her majesty's commandment, 
for being privy, as it is thought, and consenting to 
Mr. Wentworth's motion." ' Some difficulty was made 
by this house of commons about their grant of subsidies, 
which was uncommonly large, though rather in appear- 
ance than truth, so great had been the depreciation of 
silver for some years past. k 

The admonitions not to abuse freedom of speech, 
whioh had become almost as much matter of course as 
the request for it, were repeated in the ensuing par- 
liaments of 1597 and 1601. Nothing more 
remarkable occurs in the former of these monopolies, 
sessions than an address to the queen against in P t ^ aIly 
the enormous abuse of monopolies. The crown session of 
either possessed or assumed the prerogative of 1601 ' 
regulating almost all matters of commerce at its dis- 
cretion. Patents to deal exclusively in particular 
articles, generally of foreign growth, but reaching in 
some instances to such important necessaries of life as 
salt, leather, and coal, had been lavishly granted to the 
courtiers, with little direct advantage to the revenue. 
They sold them to companies of merchants, who of 
course enhanced the price to the utmost ability of the 
purchaser. This business seems to have been purposely 
protracted by the ministers and the speaker, who, in 
this reign, was usually in the court's interests, till the 
last day of the session ; when, in answer to his mention 
of it, the lord keeper said that the queen " hoped her 
dutiful and loving subjects would not take away her 
prerogative, which is the choicest flower in her garden, 
and the principal and head pearl in her crown and 
diadem ; but would rather leave that to her disposition, 
promising to examine all patents, and to abide the 
touchstone of the law." ' This answer, though less stern 
than had been usual, was merely evasive : and in the 

' Birch's Memoirs of Elizabeth, i. 96. occurs in D'Ewes's Journal ; and I men- 

k Strype has published, from lord tion it as an additional proof how little 

Burleigh's manuscripts, a speech made we can rely on negative inferences as 

in the parliament of 1589 against the to proceedings in parliament at this pe- 

subsidy then proposed. Annals, vol. iii. riod. 

Append. 238. Not a word about this 1 fJEwes, 547. 



262 MONOPOLIES. Chap. V. 

session of 1601 a bolder and more successful attack 
was made on the administration than this reign had 
witnessed. The grievance of monopolies had gone on 
continually increasing; scarce any article was exempt 
from these oppressive patents. When the list of them 
was read over in the house, a member exclaimed, " Is 
not bread among the number?" The house seemed 
amazed : " Nay," said he, " if no remedy is found for 
these, bread will be there before the next parliament." 
Every tongue seemed now unloosed ; each as if emulously 
descanting on the injuries of the place he represented. 
It was vain for the courtiers to withstand this torrent. 
Ealeigh, no small gainer himself by some monopolies, 
after making what excuse he could, offered to give them 
up. Kobert Cecil the secretary, and Bacon, talked loudly 
of the prerogative, and endeavoured at least to persuade 
the house that it would be fitter to proceed by petition to 
the queen than by a bill. But it was properly answered 
that nothing had been gained by petitioning in the last 
parliament. After four days of eager debate, and more 
. heat than had ever been witnessed, this ferment was 
suddenly appeased by one of those well-timed conces- 
sions by which skilful princes spare themselves the 
mortification of being overcome. Elizabeth sent down 
a message that she would revoke all grants that should 
be found injurious by fair trial at law: and Cecil 
rendered the somewhat ambiguous generality of this 
expression more satisfactory by an assurance that the 
existing patents should all be repealed, and no more be 
granted. This victory filled the commons with joy, 
perhaps the more from being rather unexpected."" They 
addressed the queen with rapturous and hyperbolical 
acknowledgments, to which she answered in an affec- 
tionate strain, glancing only with an oblique irony at 
some of those movers in the debate, whom in her earlier 
and more vigorous years she would have keenly repri- 
manded. She repeated this a little more plainly at the 
close of the session, but still with commendation of the 
body of the commons. So altered a tone must be ascribed 
partly to the growing spirit she perceived in her subjects, 

m Their joy and gratitude were rather 540, and Carte, iii. 712. A list of them, 
premature, for her majesty did not revoke dated May, 1603, Ixidge, iii. 159, seems 
all Of them ; as appears by Bymer, xvi. to imply that they were still existing. 



Eliz. — Government. 



MONOPOLIES. 



263 



but partly also to those cares which clouded with listless 
melancholy the last scenes of her illustrious life." 

The discontent that vented itself against monopolies 
was not a little excited by the increasing demands which 
Elizabeth was compelled to make upon the commons in 
all her latter parliaments. Though it was declared, in 
the preamble to the subsidy bill of 1593, that " these 
large and unusual grants, made to a most excellent 
princess on a most pressing and extraordinary occasion, 
should not at any time hereafter be drawn into a pre- 
cedent," yet an equal sum was obtained in 1597, and 



? 



n D'Ewes, 619, 644, &c. 

The speeches made in this parliament 
are reported more fully than usual by 
Heywood Townsend, from whose journal 
those of most importance have been tran- 
scribed by D'Ewes. Hume has given 
considerable extracts, for the sole pur- 
pose of inferring, from this very debate 
on monopolies, that the royal prerogative 
was, according to the opinion of the 
house of commons itself, hardly subject 
to any kind of restraint. But the pas- 
sages he selects are so unfairly taken 
(some of them being the mere language 
of courtiers, others separated from the 
context in order to distort their mean- 
ing), that no one who compares them 
with the original can acquit him of ex- 
treme prejudice. The adulatory strain 
in which it was usual to speak of the 
sovereign often covered a strong dispo- 
sition to keep down his authority. Thus 
when a Mr. Davies says in this debate, 
" God hath given that power to absolute 
princes which lie attributes to himself — 
Dixi quod dii estis," it would have been 
seen, if Hume had quoted the following 
sentence, that he infers from hence, that, 
justice being a divine attribute, the king 
can do nothing that is unjust, and con- 
sequently cannot grant licences to the 
injury of his subjects. Strong language 
was no doubt used in respect of the 'pre- 
rogative. But it is erroneous to assert, 
with Hume, that it came equally from 
the courtiers and country gentlemen, and 
was admitted by both. It will chiefly 
be found in the speeches of secretary 
Cecil, the official defender of prerogative, 
and of some lawyers. Hume, after 
quoting an extravagant speech ascribed 
to Serjeant Heyle, that " all we have is 



her majesty's, and she may lawfully at 
any time take it from us ; yea, she hath 
as much right to all our lands and goods 
as to any revenue of her crown,'' observes 
that Heyle was an eminent lawyer, a 
man of character. That Heyle was high 
in his profession is beyond doubt ; but 
in that age, as has since, though from 
the change of times less grossly, con- 
tinued to be the case, the most distin- 
guished lawyers notoriously considered 
the court and country as plaintiff and 
defendant in a great suit, and themselves 
as their retained advocates. It is not 
likely however that Heyle should have 
used the exact words imputed to him. 
He made, no doubt, a strong speech for 
prerogative, but so grossly to transcend 
all limits of truth and decency seems 
even beyond a lawyer seeking office. 
Townsend and D'Ewes write with a sort 
of sarcastic humour, which is not always 
to be taken according to the letter. 
DEwes, 433 ; Townsend, 205. 

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



264 INFLUENCE OF THE CROWN Chap. V. 

one still greater in 1601, but money was always re- 
luctantly given, and the queen's early frugality bad 
accustomed ber subjects to very low taxes ; so that the 
debates on the supply in 1601, as handed down to us by 
Townsend, exhibit a lurking ill-humour which would 
find a better occasion to break forth. 

The house of commons, upon a review of Elizabeth's 
reign, was very far, on the one hand from 
ofthe 1106 exercising those constitutional rights which 
ttrtiu in have long since belonged to it, or even those 
which by ancient precedent it might have 
claimed as its own; yet, on the other hand, was not 
quite so servile and submissive an assembly as an artful 
historian has represented it. If many of its members 
were but creatures of power, if the majority was often 
too readily intimidated, if the bold and honest, but not 
very judicious, Wentworths were but feebly supported, 
when their impatience hurried them beyond their col- 
leagues, there was still a considerable party, sometimes 
carrying the house along with them, who with patient 
resolution and inflexible aim recurred in every session 
to the assertion of that one great privilege which their 
sovereign contested, the right of parliament to inquire 
into and suggest a remedy for every public mischief or 
danger. It may be remarked that the ministers, such 
as Knollys, Hatton, and Eobert Cecil, not only sat 
among the commons, but took a very leading part in 
their discussions : a proof that the influence of argument 
could no more be dispensed with than that of power. 
This, as I conceive, will never be the case in any 
kingdom where the assembly of the estates is quite 
subservient to the crown. Nor should we put out of 
consideration the manner in which the commons were 
composed. Sixty-two members were added at different 
times by Elizabeth to the representation, as well from 
places which had in earlier times discontinued their 
franchise, as from those to which it was first granted ; ° 

° Pari. Hist. 958. In the session of assent, that the burgesses shall remain 

1571 a committee was appointed to confer according to their returns; for that the 

with the attorney and solicitor general validity of the charters of their towns is 

about the return of burgesses from nine elsewhere to be examined, if cause be." 

places which had not been represented D'Ewes, p. 156, 159. 

in the last parliament. But in the end D'Ewes observes that it was very 

it was "ordered, by Mr. Attorney's common in former times, in order to 



Eliz. — Government. 



IN PARLIAMENT. 



265 



a very large proportion of them petty boroughs, evidently 
under the influence of the crown or peerage. ' This had 
been the policy of her brother and sister, in order to 
counterbalance the country gentlemen, and find room 
for those dependents who had no natural interest to 
return them to parliament. The ministry took much 
pains with elections, of which many proofs remain. p 



avoid the charge of paying wages to 
their burgesses, that a borough which 
had fallen into poverty or decay either 
got licence of the sovereign for the 
time being to be discharged from electing 
members, or discontinued it of them- 
selves ; but that of late, the members for 
the most part bearing their own charges, 
many of those towns which had thus dis- 
000 1 inued their privilege renewed it, both 
in Elizabeth's reign and that of James. 
P. 80. This could only have been, it is 
hardly necessary to say, by obtaining 
writs out of chancery for that purpose. 
As to the payment of wages, the words 
of IVEwes intimate that it was not en- 
tirely disused. In the session of 1586 
the borough of Grantham complained 
that Arthur Hall (whose name now ap- 
pears for the last time) had sued them 
for wages due to him as their repre- 
sentative in the preceding parliament; 
alleging that, as well by reason of his 
negligent attendance and some other 
offences by him committed in some of its 
sessions, as of his promise not to require 
any such wages, they ought not to be 
charged ; and a committee, having been 
appointed to inquire into this, reported 
that they had requested Mr. Hall to 
remit his claim for wages, which he had 
freely done. I>'Ewes, p. 417. 

P Strype mentions letters from the 
council to Mildmay, sheriff of Essex, in 
1559, about the choice of knights. An- 
nals, vol. i. p. 32. And other instances 
of interference may be found in the Lans- 
downe and Harleian collections. Thus 
we read that a Mr. Copley used to no- 
minate burgesses for Gatton, " for that 
there were no burgesses in the borough." 
The present proprietor being a minor in 
custody of the court of wards, lord Bur- 
leigh directs the sheriff of Surrey to 
make no return without instructions from 
himself; and afterwards orders him to 
cancel the name of Francis Bacon in his 



indenture, he being returned for another 
place, and to substitute Edward Brown. 
Hart. MSS. Deem. 16. 

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

A late writer has asserted, as an un- 
doubted fact, which "historic truth re- 
quires to be mentioned," that for the first 
parliament of Elizabeth " five candidates 
were nominated by the court for each 
borough, and three for each county ; and 
by the authority of the sheriffs the mem- 
bers were chosen from among the can- 



2G6 DEBATE ON ELECTION OF Chap. V. 

The house accordingly was filled with placemen, civi- 
lians, and common lawyers grasping at preferment. 
The 'slavish tone of these persons, as we collect from 
the minutes of D'Ewes, is strikingly contrasted with the 
manliness of independent gentlemen. And as the house 
was by no means very fully attended, the divisions, a 
few of which are recorded, running from 200 to 250 in 
the aggregate, it may he perceived that the court, 
whose followers were at hand, would maintain a formid- 
able influence. But this influence, however pernicious 
to the integrity of parliament, is distinguishable from 
that exertion of almost absolute prerogative which 
Hume has assumed as the sole spring of Elizabeth's 
government, and would never be employed till some 
deficiency of strength was experienced in the other. 
D'Ewes has preserved a somewhat remarkable debate 
on a bill presented in the session of 1571, in 
election <rf order to render valid elections of non-resident 
non-resident burgesses. According to the tenor of the 
king's writ, confirmed by an act passed under 
Henry V., every city and borough was required to elect 
none but members of their own community. To this 
provision, as a seat in the commons' house grew more 
an object of general ambition, while many boroughs fell 
into comparative decay, less and less attention had been 
paid ; till, the greater part of the borough representatives 
having become strangers, it was deemed, by some, expe- 
dient to repeal the ancient statute, and give'a sanction 
to the innovation that time had wrought ; while others 
contended in favour of the original usage, and seemed 
anxious to restore its vigour. It was alleged on the one 
hand, by Mr. Norton, that the bill would take away all 
pretence for sending unfit men, as was too often seen, 
and remove any objection that might be started to the 
sufficiency of the present parliament, wherein, for the 
most part, against positive law, strangers to their several 
boroughs had. been chosen : that persons able and fit for 
so great an employment ought to be preferred without 

didates." Butler's Book of the Roman certainly of Mr. Butler, who is utterly 

Catholic Church, p. 225. I never met incapable of a wilful deviation from truth, 

with any tolerable authority for this, and but of some of those whom he too irupli- 

belicve it to be a mere fabrication; not citly follows. 



Eliz.— Gorerameut. NON-RESIDENT BURGESSES. 267 

regard to their inhabitancy ; since a man could not be 
presumed to be the wiser for being a resident burgess : 
and that the whole body of the realm, and the service of 
the same, was rather to be respected than any piivate 
regard of place or person. This is a remarkable, and 
perhaps the earliest assertion, of an important constitu- 
tional principle, that each member of the house of 
commons is deputed to serve, not only for his consti- 
tuents, but for the whole kingdom ; a principle which 
marks the distinction between a modern English par- 
liament and such deputations of the estates as were 
assembled in several continental kingdoms ; a principle 
to which the house of commons is indebted for its weight 
and dignity, as well as its beneficial efficiency, and 
which none but the servile worshippers of the populace 
are ever found to gainsay. It is obvious that such a 
principle could never obtain currency, or even be ad- 
vanced on any plausible ground, until the law for the 
election of resident burgesses had gone into disuse. 

Those who defended the existing law, forgetting, as is 
often the case with the defenders of existing laws, that 
it had lost its practical efficacy, urged that the inferior 
ranks using manual and mechanical arts ought, like the 
rest, to be regarded and consulted with on matters which 
concerned them, and of which strangers could less judge. 
" We," said a member, " who have never seen Berwick 
or St. Michael's Mount, can but blindly guess of them, 
albeit we look on the maps that come from thence, or 
see letters of instruction sent ; some one whom observa- 
tion, experience, and due consideration of that country 
hath taught, can more perfectly open what shall in 
question thereof grow, and more effectually reason there- 
upon, than the skilfullest otherwise whatsoever." But 
the greatest mischief resulting from an abandonment of 
their old constitution would be the interference of noble- 
men with elections: lords' letters, it was said, would 
from henceforth bear the sway ; instances of which, so 
late as the days of Mary, were alleged, though no one 
cared to allude particularly to anything of a more recent 
date. Some proposed to impose a fine of forty pounds 
on any borough making its election on a peer's nomina- 
tion. The bill was committed by a majority ; but, as 



2G8 ASSERTION OF PRIVILEGES Chap. V. 

no further entry appears in the Journals, we may infer 
it to have dropped/ 

It may be mentioned, as not unconnected with this 
subject, that in the same session a fine was imposed on 
the borough of Westbury for receiving a bribe of four 
pounds from Thomas Long, " being a very simple man 
and of small capacity to serve in that place ;" and the 
mayor was ordered to repay the money. Long, how- 
ever, does not seem to have been expelled. This is the 
earliest precedent on record for the punishment of bri- 
bery in elections. 9 

We shall find an additional proof that the house of 

commons under the Tudor princes, and especi- 
of privi? ally Elizabeth, was not so feeble and insignifi- 
leges by cant an assembly as has been often insinuated, 

if we look at their frequent assertion and 
gradual acquisition of those peculiar authorities and 
immunities which constitute what is called privilege of 
parliament. Of these, the first, in order of time if not 
of importance, was their exemption from arrest on civil 
process during their session. Several instances occurred 
under the Plantagenet dynasty where this privilege 
was claimed and admitted ; but generally by means of a 
distinct act of parliament, or at least by a writ of pri- 
vilege out of chancery. The house of commons for the 

first time took upon themselves to avenge their 
Ferrers un- own injury in 1543, when the remarkable case 
de^ Henry f George Ferrers occurred. This is related 

in detail by Hollingshed, and is perhaps the 
only piece of constitutional information we owe to him. 
Without repeating all the circumstances, it will be 
sufficient here to mention that the commons sent their 
Serjeant with his mace to demand the release of Ferrers, 
a burgess who had been arrested on his way to the 
house ; that the gaolers and sheriffs of London having 
not only refused compliance, but ill-treated the serjeant, 
they compelled them, as well as the sheriffs of London, 
and even the plaintiff who had sued the writ against 
Ferrers, to appear at the bar of the house, and committed 
them to prison ; and that the king, in the presence of 
the judges, confirmed in the strongest manner this asser- 

r D'Ewes, 168. • Journals, p. 88. 



Eliz.- Government. BY THE COMMONS. 269 

tion of privilege by the commons. It was, however, so 
far at least as our knowledge extends, a very important 
novelty in constitutional practice ; not a trace occurring 
in any former instance on record, either of a party being 
delivered from arrest at the mere demand of the serjeant, 
or of any one being committed to prison by the sole 
authority of the house of commons. With respect to 
the fii'st, the " chancellor," says Hollingshed, " offered 
to grant them a writ of privilege, which they of the 
commons' house refused, being of a clear opinion that 
all commandments and other acts proceeding from the 
nether house were to be done and executed by their 
serjeant without writ, only by show of his mace, which 
was his warrant." It might naturally seem to follow 
from this position, if it were conceded, that the house 
had the same power of attachment for contempt, that is, 
of committing to prison persons refusing obedience to 
lawful process, which our law attributes to all courts of 
justice, as essential to the discharge of their duties. 
The king's behaviour is worthy of riotice: while he 
dexterously endeavours to insinuate that the offence was 
rather against him than the commons, Ferrers happen- 
ing to be in his service, he displays that cunning flattery 
towards them in their moment of exasperation which his 
daughter knew so well how to employ.' 

Such important powers w v ere not likely to be thrown 
away, though their exertion might not always other cases 
be thought expedient. The commons had some- of privilege, 
times recourse to a writ of privilege in order to release 
their members under arrest, and did not repeat the pro- 
ceeding in Ferrers's case till that of Smalley, a member's 
servant in 1575, whom they sent their serjeant to deliver. 

* Hollingshed, vol. iii. p. 824. (4to. weak, when we consider how common it 

edit.) Hatsell's Precedents, vol. i. p. 53. was to overlook or recede from prece- 

Mr. Hatsell inclines too much, in my dents before the constitution had been 

opinion, to depreciate the authority of reduced into a system. Carte, vol. iii. p. 

this case, imagining that it was rather as 164, endeavours to discredit the case of 

the king's servant than as a member of Ferrers as an absolute fable ; and cer- 

the house that Ferrers was delivered, tainly points out some inaccuracy as to 

But, though Henry artfully endeavours dates; but it is highly improbable that 

to rest it chiefly on this ground, it appears the whole should be an invention. He 

to me that the commons claim the privi- returns to the subject afterwards, p. 541, 

lege as belonging to themselves, without and, with a folly almost inconceivable 

the least reference to this circumstance, even in a Jacobite, supposes the puritans 

If they did not always assert it after- to have fabricated the tale, and prevailed 

wards, this negative presumption is very on Hollingshed to insert it in his history. 



270 cases of privilege. Chap. v. 

And this was only " after sundry reasons, arguments, 
and disputations," as the journal informs us ; and, what 
is more, after rescinding a previous resolution that they 
could find no precedents for setting at liberty any one in 
arrest, except by writ of privilege." It is to be observed 
that the privilege of immunity extended to the menial 
servants of members, till taken away by the statute of 
George III. Several persons however were, at different 
times, under Mary and Elizabeth, committed by the 
house to the Tower, or to the custody of their own Ser- 
jeant, for assaults on their members." Smalley himself, 
above mentioned, it having been discovered that he had 
fraudulently procured this arrest, in order to get rid of 
the debt, was committed for a month, and ordered to 
pay the plaintiff one hundred pounds, which was pos- 
sibly the amount of what he owed. 5. One also, who had 
served a subpoena out of the star-chamber on a member 
in the session of 1584, was not only put in confinement, 
but obliged to pay the party's expenses before they 
would discharge him, making his humble submission on 
his knees. 2 This is the more remarkable, inasmuch as 
the chancellor had but just before made answer to a 
committee deputed "to signify to him how, by the 
ancient liberties of the house, the members thereof are 
privileged from being served with subpoenas," that " he 
thought the house had no such privilege, nor would he 
allow any precedents for it, unless they had also been 
ratified in the court of chancery." a They continued to 
enforce this summary mode of redress with no objection, 
so far as appears by any other authority, till, before the 
end of the queen's reign, it had become their established 
law of privilege "that no subpoena or stimmons for the 
attendance of a member in any other court ought to be 
served, without leave obtained or information given to 
the house ; and that the persons who procured or served 
such process were guilty of a breach of privilege, and 
were punishable by commitment or otherwise, by the 
order of the house." b The great importance of such a 
privilege was the security it furnished, when fully 
claimed and acted upon, against those irregular deten- 
tions and examinations by the council, and which, in 

u Journals, Feb. 22nd and 27th. * Hatsell, 73, 92, 119. 

y Id., 90. * Id. 97. a Id. 96. b Id. 119. 



Eliz.— Government. CASES OF PRIVILEGE. 271 

despite of the promised liberty of speech, had, as we 
have seen, oppressed some of their most distinguished 
members. But it must be owned that, by thus suspending 
all civil and private suits against themselves, the commons 
gave too much encouragement to needy and worthless 
men who sought their walls as a place of sanctuary. 

This power of punishment, as it were for contempt, 
assumed in respect of those who molested members of 
the commons by legal process, was still more naturally 
applicable to offences against established order com- 
mitted by any of themselves. In the earliest record 
that is extant of their daily proceedings, the Commons' 
Journal of the first parliament of Edward VI., we find, 
on the 21st January, 1547-8, a short entry of an order 
that John Storie, one of the burgesses, shall be com- 
mitted to the custody of the serjeant. The order is re- 
peated the next day ; on the next, articles of accusation 
are read against Storie. It is ordered on the following 
day that he shall be committed prisoner to the Tower. 
His wife soon after presents a petition, which is ordered 
to be delivered to the protector. On the 20th of February 
letters from Storie in the Tower are read. These pro- 
bably were not deemed satisfactory, for it is not till the 
2nd of March that we have an entry of a letter from 
Mr. Storie in the Tower with his submission. And an 
order immediately follows, that " the king's privy council 
in the nether house shall humbly declare unto the lord 
protector's grace that the resolution of the house is, that 
Mr. Storie be enlarged, and at liberty, out of prison ; and 
to require the king's majesty to forgive him his offences 
in this case towards his majesty and. his council." 

Storie was a zealous enemy of the Reformation, and 
suffered death for treason under Elizabeth. His temper 
appears to have been ungovernable ; even in Maiy's 
reign he fell a second time under the censure of the 
house for disrespect to the speaker. It is highly pro- 
bable that his offence in the present instance was some 
ebullition of virulence against the changes in religion ; 
for the first entry concerning him immediately follows 
the third reading of the bill that established the English 
liturgy. It is also manifest that he had to atone for 
language direspectful to the protector's government, as 
well as to the house. But it is worthy of notice that 



272 CASES OF PRIVILEGE. Chap. V. 

the commons by their single authority commit their 
burgess first to their own officer, and next to the Tower ; 
and that upon his submission they inform the protector 
of their resolution to discharge him out of custody, re- 
commending him to forgiveness as to his offence against 
the council, which, as they must have been aware, the 
privilege of parliament as to words spoken within its 
walls (if we are right in supposing such to have been 
the case) would extend to cover. It would be very 
unreasonable to conclude that this is the first instance 
of a member's commitment by order of the house, the 
earlier journals not being in existence. Nothing indi- 
cates that the course taken was unprecedented. Yet on 
the other hand we can as little infer that it rested on 
any previous usage ; and the times were just such in 
which a new precedent was likely to be established. 
The right of the house indeed to punish its own members 
for indecent abuse of the liberty of speech may be 
thought to result naturally from the king's concession 
of that liberty ; and its right to preserve order in debate 
is plainly incident to that of debating at all. 

In the subsequent reign of Mary Mr. Copley incurred 
the displeasure of the house for speaking irreverent 
words of her majesty* and was committed to the serjeant- 
at-arms ; but the despotic character of that government 
led the commons to recede in some degree from the 
regard to their own privileges they had shown in the 
former case. The speaker was directed to declare this 
offence to the queen, and to request her mercy for the 
offender. Mary answered that she would well consider 
that request, but desired that Copley should be examined 
as to the cause of his behaviour. A prorogation fol- 
lowed the same day, and of course no more took place 
in this affair. 

A more remarkable assertion of the house's right to 
inflict punishment on its own members occurred in 
1581, and, being much better known than those I have 
mentioned, has been sometimes treated as the earliest 
precedent. One Arthur Hall, a burgess for Grantham, 
was charged with having caused to be published a book 
against the present parliament, on account of certain 

c Journals, 5th and 7th March, 1557-8. 



Eliz.— Government. CASES OF PRIVILEGE. 273 

proceedings in the last session, wherein he was privately 
interested, " not only reproaching some particular good 
members of the house, but also very much slanderous 
and derogatory to its general authority, power, and state, 
and prejudicial to the validity of its proceedings in 
making and establishing of laws." Hall was the master 
of Smalley, whose case has been mentioned above, and 
had so much incurred the displeasure of the house by 
his supposed privity to the fraud of his servant, that a 
bill was brought in and read a first time, the precise 
nature of which does not appear, but expressed to be 
against him and two of his servants. It seems probable, 
from these and some other passages in the entries that 
occur on this subject in the journal, that Hall in his 
libel had depreciated the house of commons as an estate 
of parliament, and especially in respect of its privileges, 
pretty much in the strain which the advocates of pre- 
rogative came afterwards to employ. Whatever share 
therefore personal resentment may have had in exaspe- 
rating the house, they had a public quarrel to avenge 
against one of their members, who was led by pique to 
betray their ancient liberties. The vengeance of popular 
assemblies is not easily satisfied. Though Hall made a 
pretty humble submission, they went on, by a unanimous 
vote, to heap every punishment in their power upon his 
head. They expelled him, they imposed a fine of five 
hundred marks upon him, they sent him to the Tower 
until he should make a satisfactory retraction. At the 
end of the session he had not been released ; nor was it 
the design of the commons that his imprisonment should 
then terminate ; but their own dissolution, which en- 
sued, put an end to the business.* 1 Hall sat in some later 

d DEwes,291. Hatsell, 93. The latter racter, and had already incurred the dis- 

says, " I cannot but suspect that there pleasure of the commons in the session of 

was some private history in this affair, 1572, when he was ordered to be warned 

some particular offence against the queen, by the Serjeant to appear at the bar, " to 

with which we are unacquainted." But answer for sundry lewd speeches used as 

I believe the explanation I have given well in the house as elsewhere." Another 

will be thought more to the purpose ; entry records him to have been " charged 

and, so far from having offended the with seven several articles, but, having 

queen, Hall seems to have had a patron humbly submitted himself to the house, 

in lord Burleigh, to whom he wrote and confessed his folly, to have been upon 

many letters, complaining of the com- the question released with a good ex- 

mons, which are extant in the Lansdowne hortation from the speaker." J/ Ewes, 

collection. He appears to have been a 207, 212. 
man of eccentric and unpopular cha- 

VOL. I. T 



274 PRIVILEGE OF DETERMINING Chap. V. 

parliaments. This is the leading precedent, as far as 
records show, for the power of expulsion, which the 
commons have ever retained without dispute of those 
who would most curtail their privileges. But in 1558 
it had been put to the vote whether one outlawed and 
guilty of divers frauds should continue to sit, and carried 
in his favour by a very small majority ; which affords a 
presumption that the right of expulsion was already 
deemed to appertain to the house. 6 They exercised it 
with no small violence in the session of 1585 against the 
famous Dr. Parry, who, having spoken warmly against 
the bill inflicting the penalty of death on Jesuits and 
seminary priests, as being cruel and bloody, the com- 
mons not only ordered him into the custody of the 
Serjeant, for opposing a bill approved of by a committee, 
and. directed the speaker to reprimand him upon his 
knees, but, on his failing to make a sufficient apology, 
voted him no longer a burgess of that house/ The year 
afterwards Bland, a currier, was brought to their bar for 
using what were judged contumelious expressions against 
the house for something they had done in a matter of 
little moment, and discharged on account of his poverty, 
on making submission, and paying a fine of twenty 
shillings. 5 In this case they perhaps stretched their 
power somewhat farther than in the case of Arthur Hall, 
who, as one of their body, might seem more amenable 
to their jurisdiction. 

The commons asserted in this reign, perhaps for the 
Privilege of nrg t time, another and most important privilege, 
determining the right of determining all matters relative to 
elections 1 their own elections. Difficulties of this nature 
claimed by had in former times been decided in chancery, 
from which the writ issued, and into which the 
return was made. Whether no cases of interference on 
the part of the house had occurred it is impossible to 
pronounce, on account of the unsatisfactory state of the 
rolls and journals of parliament under Edward IV., 
Henry VII., and Henry VIII. One remarkable entry, 

e Hatsell, 80. wherein the commons have punished the 
f D'Ewes, 341. authors of libels derogatory to their privi- 
B D'Ewes, 366. This case, though of leges, p. 127. Though he mentions only- 
considerable importance, is overlooked libels, certainly the punishment of words 
by Hatsell, who speaks of that of Hall as spoken is at least as strong an exercise of 
the only one, before the long parliament, power. 



Eliz.— Government. CONTESTED ELECTIONS. 275 

however, may be found in the reign of Mary, when a 
committee is appointed " to inquire if Alexander Nowell, I 
prebendary of Westminster, may be of the house ;" and 
it is declared next day by them that " Alexander 1 
Nowell, being prebendaiy in Westminster, and thereby 1 
having voice in the convocation house, cannot be a mem- 
ber of this house ; and so agreed by the house, and I 
the queen's writ to be directed for another burgess in | 
his place." h Nothing farther appears on record till in 
1586 the house appointed a committee to examine the 
state and circumstances of the returns for the county of 
Norfolk. The fact was, that the chancellor had issued 
a second writ for this county, on the ground of some 
irregularity in the first return, and a different person 
had been elected. Some notice having been taken of 
this matter in the commons, the speaker received orders 
to signify to them her majesty's displeasure that " the 
house had been troubled with a thing impertinent for 
them to deal with, and only belonging to the charge and 
office of the lord chancellor, whom she had appointed to 
confer with the judges about the returns for the county 
of Norfolk, and to act therein according to justice and 
right." The house, in spite of this peremptory inhibi- 
tion, proceeded to nominate a committee to examine into 
and report the circumstances of these returns ; who re- 
ported the whole case, with their opinion that those 
elected on the first writ should take their seats, declaring 
farther that they understood the chancellor and some of 
the judges to be of the same opinion; but that "they 
had not thought it proper to inquire of the chancellor 
what he had done, because they thought it prejudicial 
to the privilege of the house to have the same deter- 
mined by others than such as were members thereof. 
And though they thought very reverently of the said lord 
chancellor and judges, and knew them to be competent 
judges in their places ; yet in this case they .took them 
not for judges in parliament in this house : and there- 
upon required that the members, if it were so thought 
good, might take their oaths and be allowed of by force 
of the first writ, as allowed by the censure of this house, 
and not as allowed of by the said lord chancellor and 

h Journals, 1 Mary, p. 21. 

T2 



f 



270 CASES OF PRIVILEGE. Chap. V. 

judges. Which was agreed unto by the whole house."' 
This judicial control over their elections was not lost. A 
committee was appointed, in the session of 1589, to 
examine into sundry abuses of returns, among which is 
enumerated that some are returned for new places. k And 
several instances of the house's deciding on elections 
occur in subsequent parliaments. yC 

This tenaciousness of their own dignity and privileges 
was shown in some disagreements with the upper house. 
They complained to the lords in 1597 that they had 
received a message from the commons at their bar with- 
out uncovering or rising from their places. But the 
lords proved, upon a conference, that this was agreeable 
to usage in the case of messages ; though, when bills 
were brought up from the lower house, the speaker of 
the lords always left his place, and received them at the 
bar.™ Another remonstrance of the commons, against 
having amendments to bills sent down to them on paper 
instead of parchment, seems a little frivolous, but serves 
to indicate a rising spirit, jealous of the superiority 
that the peers had arrogated." In one point more ma- 
terial, and in which they had more precedent on their 
side, the commons successfully vindicated their privi- 
lege. The lords sent them a message in the session of 
1593, reminding them of the queen's want of a supply, 
and requesting that a committee of conference might 
be appointed. This was accordingly done, and sir Eobert 
Cecil reported from it that the lords would consent to 
nothing less than a grant of three entire subsidies, the 
commons having shown a reluctance to give more than 
two. But Mr. Francis Bacon said, " he yielded to the 
subsidy, but disliked that this house should join with the 
upper house in granting it. For the custom and privilege 
of this house hath always been, first to make offer of the 
subsidies from hence, then to the upper house ; except 
it were that they present a bill unto this house, with 
desire of our assent thereto, and then to send it up 
again." But the house were now so much awakened to 
the privilege of originating money-bills, that, in spite of 
all the exertions of the court, the proposition for another 
conference with the lords was lost on a division by 217 

i D'Ewes, 393, &c. k Id. 430. «» Id. 539. n D'Ewes, 596. 



Eliz.— Government. THE MONARCHY NOT ABSOLUTE. 277 

to 128.° It was by this opposition to the ministry in 
this session that Bacon, who acted perhaps full as much 
from pique towards the Cecils, and ambitious attachment 
to Essex, as from any real patriotism, so deeply offended 
the queen, that, with all his subsequent pliancy, he never 
fully reinstated himself in her favour. p 

That the government of England was a monarchy 
bounded by law, far unlike the actual state of TYie EnKlish 
the principal kingdoms on the continent, ap- constitution 
pears to have been so obvious and fundamental netted to be 
a truth, that flattery itself did not venture an absolute 
directly to contravene it. Hume has laid hold "" 
of a passage in Ealeigh's preface to his History of the 
World (written indeed a few years later than the age of 
Elizabeth), as if it fairly represented public opinion as 
to our form of government. Ealeigh says that Philip II. 
" attempted to make himself not only an absolute 
monarch over the Netherlands, like unto the kings and 
sovereigns of England and France ; but, Turk-like, to 
tread under his feet all their national and fundamental 
laws, privileges, and ancient rights." But who, that was 
really desirous of establishing the truth, would have 
brought Ealeigh into court as an unexceptionable witness 
on such a question ? Unscrupulous ambition taught men 
in that age, who sought to win or regain the crown's 
favour, to falsify all law and fact in behalf of preroga- 
tive, as unblushingly as our modern demagogues exag- 
gerate and distort the liberties of the people. q The 

° D'Ewes, 486. Another trifling cir- wrought out of iron, the bonds of kings 
cumstance may be mentioned to show unto subjects but with cobwebs." — " All 
the rising spirit of the age. In the binding of a king t>y law upon the ad- 
session of 1601, sir Robert Cecil having vantage of his necessity makes the breach 
proposed that the speaker should attend itself lawful in a king ; his charters and 
the lord keeper about some matter, sir all other instruments being no other than 
Edward Hobby took up the word in the surviving witnesses of bis uncon- 
strong language, as derogatory to their 6trained will" The object, however, of 
dignity; and the secretary, who knew, as the book is to persuade the king to call 
later ministers have done, that the com- a parliament (about 1613), and we are 
mons are never so unmanageable as on not to suppose that Raleigh meant what 
such points of honour, made a proper he said. He was never very scrupuloug 
apology. Id. 627. about truth. In another of his tracts, 

P Birch's Memoirs, i. 97, 120, 152, &c, entitled ' The Prince ; or, Thesaurus of 

ii. 129. Bacon's Works, ii. 416, 435. State,' he holds, though not without 

1 Raleigh's Dedication of his Prero- flattery towards James, a more reasonable 

gative of Parliaments to James I. con- language. " In every just state some 

tains terrible things. " The bonds of part of the government is or ought to be 

subjects to their kings should always be imparted to the people; as, in a kingdom. 



278 THE CONSTITUTION Chap. V. 

sentence itself, if designed to cany the full meaning 
that Hume assigns to it, is little better than an ab- 
surdity. For why were the rights and privileges of the 
Netherlands more fundamental than those of England ? 
and by what logic could it be proved more Turk-like to 
impose the tax of the twentieth penny, or to bring 
Spanish troops into those provinces, in contravention of 
their ancient charters, than to transgress the Great 
Charter of this kingdom, with all those unrescinded 
statutes and those traditional unwritten liberties which 
were the ancient inheritance of its subjects ? Or could 
any one, conversant in the slightest degree with the two 
countries, range in the same class of absolute sovereigns 
the kings of France and England ? The arbitrary acts 
of our Tudor princes, even of Henry VIII., were trifling 
in comparison of the despotism of Francis I. and 
Henry II., who forced their most tyrannical ordinances 
down the throats of the parliament of Paris with all the 
violence of military usurpers. No permanent law had 
ever been attempted in England, nor any internal tax 
imposed, without consent of the people's representatives. 
No law in France had ever received such consent ; nor 
had the taxes, enormously burthensome as they were 
in Raleigh's time, been imposed, for one hundred and 
fifty years past, by any higher authority than a royal 
ordinance. If a few nobler spirits had protested against 
the excessive despotism of the house of Valois ; if La 
Boetie had drunk at the springs of classical republican- 
ism ; if Hottoman had appealed to the records of their 
freeborn ancestry that surrounded the throne of Clovis ; 
if Languet had spoken in yet a bolder tone of a rightful 
resistance to tyranny ; r if the Jesuits and partisans of the 
League had cunningly attempted to win men's hearts to 

a voice or suffrage in making laws ; and Fredegarius, Almoin, and other ancient 

sometimes also in levying of arms, if the writers, to prove the elective character 

charge be great and the prince be forced and general freedom of the monarchy 

to borrow help of his subjects, the matter under the two first races. This made a 

rightly may be propounded to a parlia- considerable impression at the time, 

ment, that the tax may seem to have though the passages in question have 

proceeded from themselves." been so often quoted since, that we are 

r Le Contre Un of La Boette, the friend now almost surprised to find the book so 

of Montaigne, is, as the title intimates, a devoid of novelty. Hubert Languet's 

vehement philippic against monarchy. It Vindicise contra Tyrannos, published 

is subjoined to some editions of the latter's under the name of Junius Brutus, is a 

essays. The Franco-Gallia of Hottoman more argumentative discussion of the 

contains little more than extracts from rights of governors and their subjects 



Eliz.— Government. NOT AN ABSOLUTE MONARCHY. 279 

their faction by the sweet sounds of civil liberty and the 
popular origin of politic rule ; yet these obnoxious para- 
doxes availed little with the nation, which, after the 
wild fanaticism of a rebellion arising wholly from re- 
ligious bigotry had passed away, relapsed at once into 
its patient loyalty, its self-complacent servitude. But 
did the English ever recognise, even by implication, the 
strange parallels which Raleigh has made for their 
government with that of France, and Hume with that of 
Turkey ? The language adopted in addressing Elizabeth 
was always remarkably submissive. Hypocritical adula- 
tion was so much among the vices of that age, that the 
want of it passed for rudeness. Yet Onslow, speaker of 
the parliament of 1566, being then solicitor-general, in 
addressing the queen, says, " By our common law, 
although there be for the prince provided 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 his own pleasure without order, but quietly to suffer 
his subjects to enjoy their own, without wrongful oppres- 
sion ; wherein other princes by their liberty do take as 
please th them."* 

* D'Ewes, p. 115. decisive testimony to the established prin- 
I have already adverted to Gardiner's ciples of limited monarchy in the age of 
resolute assertion of the law against the Elizabeth than a circumstance men- 
prince's single will, as a proof that, in tioned in Anderson's Reports, 154. The 
spite of Hume's preposterous insinuations queen had granted to Mr. Richard Ca- 
to the contrary, the English monarchy vendish an office for issuing certain writs, 
was known and acknowledged to be and directed the judges to admit him to 
limited. Another testimony may be ad- it, which they neglected (that is, did not 
duced from the words of a great pro- think fit) to do. Cavendish hereupon 
testant churchman. Archbishop Parker, obtained a letter from her majesty, ex- 
writing to Cecil to justify himself for not pressing her surprise that he was not 
allowing the queen's right to grant some admitted according to her grant, and 
dispensation in a case of marriage, says, commanding them to sequester the profits 
" he would not dispute of the queen's of the office for his use, or that of any 
absolute power, or prerogative royal, how other to whom these might appear to be 
far her highness might go in following due, as soon as the controversy respecting 
the Roman authority ; but he yet doubted the execution of the said office should be 
that, if any dispensation should pass from decided. It is plain that some other per- 
her authority, to any subject, not avouch- sons were in possession of these profits, 
able by laws of her realm, made and or claimed a right therein. The judges 
established by herself and her three es- conceived that they could not lawfully 
tates, whether that subject be in surety act according to the said letter and com- 
at all times afterwards : especially seeing mand, because through such a seques- 
there be parliament laws precisely deter- tration of the emoluments those who 
mining cases of dispensations." Strype's claimed a right to issue the writs would 
Parker, 177. be disseised of their freehold. The queen, 
Perhaps, however, there Is no more informed that they did not obey the 



280 



BISHOP AYJLMER 



Chap. V. 



In the first months of Elizabeth's reign, Aylmer, after- 
wards bishop of London, published an answer to a book 
by John Knox, against female monarchy, or, as he 
termed it, ' Blast of the Trumpet against the Monstrous 
Regiment of Women,' which, though written in the time 
of Mary, and directed against her, was, of course, not 
acceptable to her sister. The answerer relies, among 
other arguments, on the nature of the English constitu- 
tion, which, by diminishing the power of the crown, 
renders it less unfit to be worn by a woman. " Well," 
he says, " a woman may not reign in England ! Better 



letter, sent another, under the sign-ma- 
nual, in more positive language, ending 
in these words : " We look that you and 
every of you should dutifully fulfil our 
commandment herein, and these our let- 
ters shall be your warrant." 21st April, 
1587. This letter was delivered to the 
justices in the presence of the chancellor 
and lord Leicester, who were commis- 
sioned to hear their answer, telling them 
also that the queen had granted the 
patent on account of her great desire to 
provide for Cavendish. The judges took 
a little time to consult what should be 
said; and, returning to the lords, an- 
swered that they desired in all respects 
humbly to obey her majesty ; but, as this 
case is, could not do so without perjury, 
which they well knew the queen would 
not require, and so went away. Their 
answer was reported to the queen, who 
ordered the chancellor, chief justice of 
the king's bench, and master of the rolls, 
to hear the judges' reasons, and the 
queen's council were ordered to attend ; 
when the queen's serjeant began to show 
the queen's prerogative to grant the is- 
suing of writs, and showed precedents. 
The judges protested in answer that 
they had every wish to assist her ma- 
jesty to all her rights, but said that this 
manner of proceeding was out of course 
of justice; and gave their reasons, that 
the right of issuing these writs and fees 
incident to it was in the prothonotaries 
and others, who claimed it by freehold ; 
who ought to be made to answer, and 
not the judges, being more interested 
therein. This was certainly a little feeble, 
but they soon recovered themselves. 
They were then charged with having 
neglected to obey these letters of the 



queen; which they confessed, but said 
that this was no offence or contempt to- 
wards her majesty, because the command 
was against the law of the land ; in 
which case, they said, no one is bound to 
obey such command. When farther 
pressed, they said the queen herself was 
sworn to keep the laws as well as they ; 
and that they could not obey this com- 
mand without going against the laws 
directly and plainly, against their oaths, 
and to the offence of God, her majesty, 
the country and commonwealth in which 
they were born and live : bo that, if the 
fear of God were gone from them, yet 
the examples of others, and the punish- 
ment of those who had formerly trans- 
gressed the laws, would remind them 
and keep them from such an offence. 
Then they cited the Spensers, and Thorp, 
a judge under Edward III., and prece- 
dents of Richard II. 's time, and of Emp- 
son, and the statutes of Magna Charta, 
which show what a crime it is for judges 
to infringe the laws of the land; and 
thus, since the queen and the judges 
were sworn to observe them, they said 
that they would not act as was com- 
manded in these letters. 

All this was repeated to her majesty 
for her good allowance of the said reasons, 
and which her majesty, as I have heard, 
says the reporter, took well ; but nothing 
farther was heard of the business. Such 
was the law and the government, which 
Mr. Hume has compared to that of 
Turkey ! It is almost certain, that nei- 
ther James nor Charles would have made 
so discreet a sacrifice of their pride and 
arbitrary temper; and in this self-com- 
mand lay the great superiority of Eliza- 
beth's policy. . 



Eliz.— Government. ON FEMALE SUCCESSION. 281 

in England than anywhere, as it shall well appear to 
him that without affection will consider the kind of re- 
giment. While I compare ours with other, as it is in 
itself, and not maimed hy usurpation, I can find none 
either so good or so indifferent. The regiment of Eng- 
land is not a mere monarchy, as some for lack of con- 
sideration think, nor a mere oligarchy nor democracy, 
but a rule mixed of all these, wherein each one of these 
have, or should have, like authority. The image whereof, 
and not the image but the thing indeed, is to be seen in 
the parliament-house, wherein you shall find these three 
estates — the king or queen which representeth the 
monarchy, the noblemen which be the aristocracy, 
and the burgesses and knights the democracy. If 
the parliament use their privileges, the king can ordain 
nothing without them : if he do, it is his fault in usurp- 
ing it, and their fault in permitting it. Wherefore, in 
my judgment, those that in king Henry VIII.'s days 
would not grant him that his proclamations should have 
the force of a statute were good fathers of the country, 
and worthy commendation in defending their liberty. 
But to what purpose is all this ? To declare that it is 
not in England so dangerous a matter to have a woman 
ruler as men take it to be. For first, it is not she that 
ruleth, but the laws, the executors whereof be her judges 
appointed by her, her justices, and such other officers. 
Secondly, she maketh no statutes or laws, but the honour- 
able court of parliament ; she breaketh none, but it must 
be she and they together, or else not. If, on the other 
part, the regiment were such as all hanged on the king's 
or queen's will, and not upon the laws written ; if she 
might decree and make laws alone without her senate ; 
if she judged offences according to her wisdom, and not 
by limitation of statutes and laws ; if she might dispose 
alone of war and peace ; if, to be short, she were a 
mere monarch, and not a mixed ruler, you might per- 
adventure make me to fear the matter the more, and the 
less to defend the cause." ' 

This passage affords a proof of the doctrine current 
among Englishmen in 1559, and may, perhaps, be the 

« Harborowe of True and Faithful Knox, vol. i. note BB, to whom I am in- 
Subjects, 1559. Most of this passage Is debted for pointing it out 
quoted by Dr. M'Crie, in his Life of 



282 PRETENSIONS OF THE CROWN. Chap. V. 

less suspected as it does not proceed from a legal pen. 
And the quotations I have made in the last chapter from 
Hooker are evidence still more satisfactory, on account 
of the gravity and judiciousness of the writer, that the 
same theory of the constitution prevailed in the later 
period of Elizabeth's reign. It may be observed that 
those who speak of the limitations of the sovereign's 
power, and of the acknowledged liberties of the subject, 
use a distinct and intelligible language, while the op- 
posite tenets are insinuated by means of vague and 
obscure generalities, as in the sentence above quoted 
from Ealeigh. Sir Thomas Smith, secretary of state to 
Elizabeth, has bequeathed us a valuable legacy in his 
treatise on the commonwealth of England. But un- 
doubtedly he evades, as far as possible, all great consti- 
tutional principles, and treats them, if at all, with a 
vagueness and timidity very different from the tone 
of Fortescue. He thus concludes his chapter on the 
parliament : " This is the order and form of the highest 
and most authentical court of England, by virtue whereof 
all these things be established whereof I spoke before, 
and no other means accounted available to make any new 
forfeiture of life, members, or lands, of any Englishman, 
where there was no law ordered for it before."" This 
leaves no small latitude for the authority of royal pro- 
clamations, which the phrase, I make no question, was 
studiously adopted in order to preserve. 

There was unfortunately a notion very prevalent in 
Pretensio ^ e ca bhiet °% Elizabeth, though it was not quite 
of the so broadly or at least so frequently promulgated 

crown. ag - n £k e f r] ow i n g reigns, that, besides the 
common prerogatives of the English crown, which were 
admitted to have legal bounds, there was a kind of para- 
mount sovereignty, which they denominated her absolute 
power, incident, as they pretended, to the abstract nature 
of sovereignty, and arising out of its primary office of 
preserving the state from destruction. This seemed 
analogous to the dictatorial power which might be said 
to reside in the Eoman senate, since it could confer it 
upon an individual. And we all must, in fact, admit 
that self-preservation is the first necessity of common- 

u Commonwealth of England, b. ii. c. 3. 



Eliz.— Government. PRETENSIONS OF THE CROWN. 283 

wealths as well as persons, which may justify, in Mon- 
tesquieu's poetical language, the veiling of the statues of 
liberty. Thus martial law is proclaimed during an in- 
vasion, and houses are destroyed in expectation of a 
siege. But few governments are to be trusted with this 
insidious plea of necessity, which more often means their 
own security than that of the people. Nor do I con- 
ceive that the ministers of Elizabeth restrained this pre- 
tended absolute power, even in theory, to such cases of 
overbearing exigency. It was the misfortune of the 
sixteenth century to see kingly power strained to the 
highest pitch in the two principal European monarchies. 
Charles V. and Philip II. had crushed and trampled the 
ancient liberties of Castile and Aragon. Francis I. and 
his successors, who found the work nearly done to their 
hands, had inflicted every practical oppression upon 
their subjects. These examples could not be without 
their effect on a government so unceasingly attentive to 
all that passed on the stage of Europe/ Nor was this 
effect confined to the court of Elizabeth. A king of 
England, in the presence of absolute sovereigns, or per- 
haps of their ambassadors, must always feel some degree 
of that humiliation with which a young man, in check 
of a prudent father, regards the careless prodigality of the 
rich heirs with whom he associates. Good sense and ele- 
vated views of duty may subdue the emotion ; but he must 
be above human nature who is insensible to the contrast. 
There must be few of my readers who are unacquainted 
with the animated sketch that Hume has delineated of 
the English constitution under Elizabeth. It has been 
partly the object of the present chapter to correct his 
exaggerated outline ; and nothing would be more easy 
than to point at other mistakes into which he has fallen 
through prejudice, through carelessness, or through 
want of acquaintance with law. His capital and inex- 
cusable fault in everything he has written on our consti- 
tution is to have sought for evidence upon one side only 
of the question. Thus the remonstrance of the judges 

x Bodin says the English ambassador, vu Henry VIII. avoir toujours use de 

M. Dail (Mr. Dale), had assured him, sa puissance souveraine. He admitted, 

not only that the king may assent to or however, that taxes could only be im- 

refuse a bill as he pleases, but that il ne posed in Darliament. De la Ee"publique, 

laisse pas d'en ordonner a son plaisir, et 1. i. c. 8. 
contre la volonte* des estats, comme on a 



284 THE MONARCHY UNDER THE TUDORS. Chap. V. 

against arbitrary imprisonment by the council is in- 
finitely more conclusive to prove that the right of per- 
sonal liberty existed than the fact of its infringement 
can be to prove that it did not. There is something 
fallacious in the negative argument which he per- 
petually uses, that, because we find no mention of any 
umbrage being taken at certain strains of prerogative, 
they must have been perfectly consonant to law. For if 
nothing of this could be traced, which is not so often 
ihe case as he represents it, we should remember that, 
even when a constant watchfulness is exercised by means 
of political parties and a free press, a nation is seldom 
alive to the transgressions of a prudent and successful 
government. The character which on a former occasion 
I have given of the English constitution under the house 
of Plantagenet may still be applied to it under the line 
of Tudor, that it was a monarchy greatly limited by law, 
but retaining much power that was ill-calculated to 
promote the public good, and swerving continually into 
an irregular course, which there was no restraint ade- 
quate to correct. It may be added that the practical 
exercise of authority seems to have been less frequently 
violent and oppressive, and its legal limitations better 
understood, in the reign of Elizabeth than for some pre- 
ceding ages ; and that sufficient indications had become 
distinguishable before its close, from which it might be 
gathered that the seventeenth century had arisen upon a 
race of men in whom the spirit of those who stood against 
John and Edward was rekindled with a less partial and 
a steadier warmth/ 

y The misrepresentations of Hume as to the Kestoration, voL i. c. 3. In some 

to the English constitution under Eliza- respects, Mr. B. seems to have gone too 

beth, and the general administration of far in an opposite system, and to repre- 

her reign, have been exposed, since the sent the practical course of government 

present chapter was written, by Mr. as less arbitrary than I can admit it to 

Brodie, in his History of the British have been. 
Empire from the Accession of Charles I. 



James I. ACCESSION OF JAMES. 285 



CHAPTEK VI. 



OX THE ENGLISH CONSTITUTION UNDER JAMES I. 



Quiet Accession of James — Question of his Title to the Crown — Legitimacy of the 
Earl of Hertford's Issue —Early Unpopularity of the King— Conduct towards the 
Puritans — Parliament convoked by an irregular Proclamation — Question of 
Fortescue and Goodwin's Election — Shirley's Case of Privilege — Complaints of 
Grievances — Commons' Vindication of themselves — Session of 1605 — Union 
with Scotland debated — Continual Bickerings between the Crown and Commons 
— Impositions on Merchandize without Consent of Parliament — Remonstrances 
against these in Session of 1610 — Doctrine of King's absolute Power inculcated 
by Clergy — Articuli Cleri — Co well's Interpreter — Renewed Complaints of the 
Commons — Negotiation for giving up the Feudal Revenue — Dissolution of 
Parliament — Character of James — Death 'of Lord Salisbury — Foreign Politics 
of the Government — Lord Coke's Alienation from the Court — Illegal Proclama- 
tions — Means resorted to in order to avoid the Meeting of Parliament — Parlia- 
ment of 1614 — Undertakers — It is dissolved without passing a single Act — 
Benevolences — Prosecution of Peacham — Dispute about the Jurisdiction of the 
Court of Chancery — Case of Commendams — Arbitrary Proceedings in Star 
Chamber — Arabella Stuart — Somerset and Overbury — Sir Walter Raleigh — 
Parliament of 1621 — Proceedings against Mompesson and Lord Bacon — Violence 
in the Case of Floyd — Disagreement between the King and Commons — Their 
Dissolution after a strong Remonstrance — Marriage Treaty with Spain — Parlia- 
ment of 1624 — Impeachment of Middlesex. 

It might afford an illustration of the fallaciousness of poli- 
tical speculations to contrast the hopes and in- _^ 
quietudes that agitated the minds of men con- accession 
cerning the inheritance of the crown during 0lJames - 
Elizabeth's lifetime, while not less than fourteen titles 
were idly or mischievously reckoned up, with the per- 
fect tranquillity which accompanied the accession of her 
successor. 1 The house of Suffolk, whose claim was legally 

R Father Persons, a subtle and lying i. 357. Birch's Memoirs, i. 313. It is 
Jesuit, published in 1594, under the name written with much art, to show the ex- 
of Doleman, a treatise entitled ' Con- treme uncertainty of the succession, and 
ference about the next Succession to the to perplex men's minds by multiplying 
Crown of England.' This book is de- the number of competitors. This how- 
dicated to Lord Essex, whether from any ever is but the second part of his Con- 
hopes entertained of him, or, as was then ference, the aim of the first being to prove 
supposed, in order to injure his fame and the right of commonwealths to depose 
his credit with the queen. Sidney Papers, sovereigns, much more to exclude the 



286 



ACCESSION OF JAMES. 



Chap. VI. 



indisputable, if we admit the testament of Henry VIII. 
to have been duly executed, appear, though no public 
inquiry had been made into that fact, to have lost ground 
in popular opinion, partly through an unequal marriage of 
lord Beauchamp with a private gentleman's daughter, 
but still more from a natural disposition to favour the 
hereditary line rather than the capricious disposition of 
a sovereign long since dead, as soon as it became con- 
sistent with the preservation of the reformed faith. 
Leicester once hoped, it is said, to place his brother-in- 
law, the earl of Huntingdon, descended from the duke 



right heir, especially for want of true 
religion. " I affirm and hold," he says, 
" that for any man to give his help, con- 
sent, or assistance towards the making of 
a king whom he judgeth or believeth to 
be faulty in religion, and consequently 
would advance either no religion, or the 
wrong, if he were in authority, is a most 
grievous and damnable sin to him that 
doth it, of what side soever the truth be, 
or how good or bad soever the party be 
that is preferred." P. 216. He pretends 
to have found very few who favour the 
king of Scots' title; an assertion by 
which we may appreciate his veracity. 
The protestant party, he tells us, was 
wont to favour the house of Hertford, 
but of late have gone more towards Ara- 
bella, whose claim the lord Burleigh is 
supposed to countenance. P. 241. The 
drift of the whole is to recommend the 
infanta by means of perverted history 
and bad law, yet ingeniously contrived 
to ensnare ignorant persons. In his 
former and more celebrated treatise, 
Leicester's Commonwealth, though he 
harps much on the embarrassments at- 
tending the succession, Persons argues 
with all his power in favour of the 
Scottish title, Mary being still alive, and 
James's return to the faith not desperate. 
Both these works are full of the menda- 
city generally and justly ascribed to his 
order.; yet they are worthy to be read by 
any one who is curious about the secret 
politics of the queen's reign. 

Philip IL held out assurances that, if 
the English would aid him in dethroning 
Elizabeth, a free parliament should elect 
any catholic sovereign at their pleasure, 
not doubting that their choice would fall 
on the infanta. He promised also to en- 



large the privileges of the people, to give 
the merchants a free trade to the Indies, 
with many other flattering inducements. 
Birch's Memoirs, ii. 308. But most of 
the catholic gentry, it is just to observe, 
would never concur in the invasion of the 
kingdom by foreigners, preferring the 
elevation of Arabella, according to the 
pope's project This difference of opi- 
nion gave rise, among other causes, to 
the violent dissensions of that party in 
the latter years of Elizabeth's reign ; 
dissensions that began soon after the 
death of Mary, in favour of whom 
they weTe all united, though they could 
never afterwards agree on any project 
for the succession. Winwood's Memo- 
rials, i. 57. Lettres du Cardinal d'Ossat, 
ii. 501. 

For the life and character of the fa- 
mous Father Persons, or Parsons, above 
mentioned, see Dodd's Church History, 
the Biographia Britannica, or Miss Aikin's 
James I., i. 360. Mr. Butler is too fa- 
vourably inclined towards a man without 
patriotism or veracity. Dodd plainly 
thinks worse of him than he dares speak. 
[Several letters of considerable historical 
importance, relative to the catholic in- 
trigues as to the succession, are lately 
published in Tierney's edition of Dodd's 
Church History, vol. iii. A considerable 
part of the catholics, especially those who 
had looked up to Mary personally as 
their rallying point, adhered to the 
Scottish title ; and those of course were 
the best Englishmen. Persons and his 
Spanish faction, whose letters appear in 
the work above quoted, endeavour to 
depreciate them. I must add that Mr. 
T. does not by any means screen this last 
party. 1845.] 



James I. ACCESSION OF JAMES. 287 

of Clarence, upon the throne; hut this pretension had 
been entirely forgotten. The more intriguing and 
violent of the catholic party, after the death of Mary, 
entertaining little hope that the king of Scots would 
abandon the principles of his education, sought to gain 
support to a pretended title in the king of Spain, or his 
daughter the infanta, who afterwards married the arch- 
duke Albert, governor of the Netherlands. Others, 
abhorring so odious a claim, looked to Arabella Stuart, 
daughter of the earl of Lennox, younger brother of 
James's father, and equally descended from the stock of 
Henry VII., sustaining her manifest defect of primo- 
geniture by her birth within the realm, according to the 
principle of law that excluded aliens from inheritance. 
But this principle was justly deemed inapplicable to the 
crown. Clement VIII., who had no other view than to 
secure the re-establishment of the catholic faith in Eng- 
land, and had the judgment to perceive that the ascend- 
ancy of Spain would neither be endured by the nation 
nor permitted by the French king, favoured this claim 
of Arabella, who, though apparently of the reformed re- 
ligion, was rather suspected at home of wavering in her 
faith, and entertained a hope of marrying her to the car- 
dinal Farnese, brother of the duke of Parma. b Consider- 
ations of public interest, however, unequivocally pleaded 
for the Scottish line ; the extinction of long sanguinary 
feuds, and the consolidation of the British empire. 
Elizabeth herself, though by no means on terms of 
sincere friendship with James, and harassing him by 
intrigues with his subjects to the close of her life, seems 

b D'Ossat, ubi supra. Clement had, ignorant enough to compare with Joanna 
some years before, indulged the idle hope n. of Naples. Vol. i. 399. Henry IV. 
that France and Spain might unite to would not even encourage the project of 
conquer England, and either bestow the setting up Arabella, which he declared to 
kingdom on some catholic prince, or divide be both unjust and chimerical. Mem. de 
it between themselves, as Louis XII. and Sully, 1. 15. A knot of protestants were 
Ferdinand had done with Naples in 1501 ; also busy about the interests of Arabella, 
an example not very inviting to the or suspected of being so ; Raleigh, Cob- 
French. D'Ossat, Henry's minister at ham, Northumberland, though perhaps 
Rome, pointed out the difficulties of such the last was a catholic. Their intrigues 
an enterprise, England being the greatest occupy a great part of the letters of other 
naval power in the world, and the people intriguers, Cecil and lord Henry Howard, 
warlike. The pope only replied that the in the Secret Correspondence with king 
kingdom had been once conquered, and James, published by sir David Dalrymple, 
might be so again ; and especially being vol. i. passim, 
governed by an old woman, whom he was 



288 



QUESTION OF JAMES'S TITLE 



Chap. VI. 



to have always designed that he should inherit her crown. 
And the general expectation of what was to follow, 
as well from conviction of his right as from the im- 
practicability of any effectual competition, had so tho- 
roughly paved the way that the council's proclamation 
of the king of Scots excited no more commotion than 
that of an heir apparent. 

The popular voice in favour of James was undoubtedly 
_ . . raised in consequence of a natural opinion that 
his title to he was the lawful heir to the throne. But this 
the crown. wag on jy accor( ji n g to vulgar notions of right 
which respect hereditary succession as something inde- 
feasible. In point of fact, it is at least very doubtful 
whether James I. were a legitimate sovereign, according 
to the sense which that word ought properly to bear. 
The house of Stuart no more came in by a clear title 



/ 



c The explicit declaration on her death- 
bed, ascribed to her by Hume and most 
other writers, that her kinsman the king 
of Scots should succeed her, is not con- 
firmed by Carey, who was there at the 
time. " She was speechless when the 
council proposed the king of Scots to 
succeed her, but put her hand to her head 
as if in token of approbation." E. of 
Monmouth's Memoirs, p. 176. But her 
uniform conduct shows her intentions. 
See, however, D'Israeli's Curiosities of 
Literature, iii. 107. [A remarkable ac- 
count of Elizabeth's last days will be 
found in Dodd's Church History; it 
appears to have been written by lady 
Southwell, an eye-witness, who had been 
one of the queen's maids of honour. 
Tierney's edition of Dodd, vol iii. p. 70. 
And this account is confirmed, so as to 
make it fully trustworthy, by a report 
from Beaumont, the French ambassador, 
published in Raumer's History of the 
16th and 17th Centuries illustrated. 
London, 1835, vol. ii. p. 188. 

The famous story of Essex's ring, de- 
livered by the countess of Nottingham 
in her dying hours to the queen, has 
been rejected by modern writers, as only 
to be traced to some memoirs published 
In Holland eighty years afterwards. It 
may be considered, whether it derives 
any kind of confirmation from a passage 
in Baumer, ii. 166.— 1845.] 



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



James I. TO THE CROWN. 289 

than the house of Brunswick ; by such a title, I mean, 
as the statute laws of this kingdom had recognised. No 
private man could have recovered an acre of land with- 
out proving a better right than they could make out to 
the crown of England. What, then, had James to rest 
upon? What renders it absurd to call him and his 
children usurpers ? He had that which the flatterers of 
his family most affected to disdain — the will of the 
people ; not certainly expressed in regular suffrage or 
declared election, but unanimously and voluntarily rati- 
fying that which in itself could surely give no right, the 
determination of the late queen's council to proclaim his 
accession to the throne. 

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

Of these propositions, the two former can require no 
support ; the first being one that it would be perilous to 
deny, and the second asserting a notorious fact. A ques- 
tion has, however, been raised with respect to the third 
proposition ; for though the will of Henry, now in the 
chapter-house at Westminster, is certainly authentic, 
and is attested by many witnesses, it has been doubted 
whether the signature was made with his own hand, as 
required by the act of parliament. In the reign of Eliza- 
beth it was asserted by the queen of Scots' ministers that, 
the king being at the last extremity, some one had put 
a stamp for him to the instrument. 11 It is true that he 

<1 See Burnet, vol. i. Appendix, 267, positively, and so open, if false, to a con- 

for secretary Lethington's letter to Cecil, tradiction it never received, that those 

where he tells a circumstantial story so who lay too much stress on this very 

VOL. I. U 



290 



QUESTION OF JAMES'S TITLE. 



Chap. VI. 



was in the latter part of his life accustomed to employ a 
stamp instead of making his signature. Many impres- 
sions of this are extant ; but it is evident on the first 
inspection not only that the presumed autographs in the 
will (for there are two) are not like these impressions, 
but that they are not the impressions of any stamp, the 
marks of the pen being very clearly discernible. It is 
more difficult to pronounce that they may not be feigned, 
but such is not the opinion of some who are best ac- 
quainted with Henry's handwriting ; c and what is still 
more to the purpose, there is no pretence for setting up 
such a possibility, when the story of the stamp, as to 
which the partisans of Mary pretended to adduce evi- 
dence, appears so clearly to be a fabrication. We have, 
therefore, every reasonable ground to maintain that 
Henry did duly execute a will postponing the Scots 
line to that of Suffolk. 

The fourth proposition is in itself undeniable. There 
were descendants of Mary duchess of Suffolk, by her two 



equivocal species of presumption would 
if the will had perished, have 'reckoned 
its forgery beyond question. The king's 
death approaching, he asserts, " some as 
well known to you as to me caused 
William Clarke, sometimes servant to 
Thomas Heneage, to sign the supposed 
will with a stamp, for otherwise signed 
it was never;" for which he appeals to 
an attestation of the late lord Paget in 
parliament, and requests the depositions 
of several persons now living to be taken. 
He proceeds to refer him " to the ori- 
ginal will surmised to be signed with the 
king's own hand, that thereby it may 
most clearly and evidently appear by 
some differences how the same was not 
signed with the king's hand, but stamped 
as aforesaid. And albeit it is used both 
as an argument and calumniation against 
my sovereign by some, that the said 
original hath been embezzled in queen 
Mary's time, I trust God will and hath 
reserved the same to be an instrument to 
relieve [prove] the truth, and to confound 
false surmises, that thereby the right may 
take place, notwithstanding the many 
exemplifications and transcripts, which, 
being sealed with the great seal, do run 
abroad in England." Lesley, bishop of 
Ross, repeats the same story with some 



additions. Bedford's Hereditary Right, 
p. 197. A treatise of Hales, for which 
he suffered imprisonment, in defence of 
the Suffolk title under the will, of which 
there is a manuscript in the British Mu- 
seum, HarL MSS. 537, and which is also 
printed in the appendix to the book last 
quoted, leads me to conjecture that the 
original will had been mislaid or rather 
concealed at that time. For he certainly 
argues on the supposition that it was not 
forthcoming, and had not himself seen it ; 
but, " he has been informed that the 
king's name is evidently written with a 
pen, though 1 some of the strokes are 
unseen, as if drawn by a weak and 
trembling hand." Every one who has 
seen the will 'must bear witness to the 
correctness of this information. The re- 
appearance of this very remarkable in- 
strument was, as I conceive, after the 
Revolution ; for Collier mentions that he 
had heard it was in existence ; and it is 
also described in a note to the Acta 
Regia. 

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



James I. EARL OF HERTFORD'S ISSUE. 291 

daughters, Frances, second duchess of Suffolk, and 
Eleanor countess of Cumberland. A story had, indeed, 
been circulated that Charles Brandon, duke of Suffolk, 
was already married to a lady of the name of Mortimer 
at the time of his union with the king's sister. But this 
circumstance seems to be sufficiently explained in the 
treatise of Hales/ It is somewhat more questionable 
from which of his two daughters we are to derive the 
hereditary stock. This depends on the legitimacy of 
lord Beauchamp, son of the earl of Hertford 
by Catherine Grey. I have mentioned in an- t%eearl 
other place the process before a commission J??^ 1 ' 

• -ii -r-n- 11 l-i ii-ii fords issue. 

appointed by Elizabeth, which ended in declar- 
ing that their marriage was not proved, and that their 
cohabitation had been illicit. The parties alleged them- 
selves to have been married clandestinely in the earl of 
Hertford's house by a minister whom they had never 
before seen, and of whose name they were ignorant, in 
the presence only of a sister of the earl then deceased. 
This entire absence of testimony, and the somewhat im- 
probable nature of the story, at least in appearance, may 
still, perhaps, leave a shade of doubt as to the reality of 
the marriage. On the other hand, it was unquestionable 
that their object must have been a legitimate union : 
and such a hasty and furtive ceremony as they asserted 
to have taken place, while it would, if sufficiently proved, 
be completely valid, was necessary to protect them from 
the queen's indignation. They were examined separately 
upon oath to answer a series of the closest interroga- 
tories, which they did with little contradiction, and a 
perfect agreement in the main ; nor was any evidence 
worth mentioning adduced on the other side; so that, 
unless the rules of the ecclesiastical law are scandalously 
repugnant to common justice, their oaths entitled them 
to credit on the merits of the case. 8 The earl of Hert- 

f Bedford's (Harbin's) Hereditary Right ecclesiastical censure for fornication. But 

Asserted, p. 204. another, which I have also found in the 

8 A manuscript in the Cottonian Museum, Harl. MSS. 6286, contains the 

Library, Faustina, A. xi., written about whole proceedings and evidence, from 

1562, in a very hostile spirit, endeavours which I have drawn the conclusion in 

to prove, from the want of testimony, and the text Their ignorance of the clergy- 

from some variances in their depositions man who performed the ceremony is not 

(not very material ones), that their alle- perhaps very extraordinary ; he seems to 

gations of matrimony could not be ad- have been one of those vagabond eccje- 

mitted, and that they had incurred an siastics who till the marriage act of 

u2 



292 LEGITIMACY OF THE Chap. VI. 

ford, soon after the tranquil accession of James, having 
long abandoned all ambitious hopes, and seeking only 
to establish his children's legitimacy and the honour of 
one who had been the victim of their unhappy loves, 
petitioned the king for a review of the proceedings, 
alleging himself to have vainly sought this at the hands 
of Elizabeth. It seems probable, though I have not met 
with any more distinct proof of it than a story in Dug- 
dale, that he had been successful in finding the person 
who solemnized the marriage. 11 A commission of dele- 
gates was accordingly appointed to investigate the alle- 
gations of the earl's petition. But the jealousy that had 
so long oppressed this unfortunate family was not yet at 
rest. Questions seem to have been raised as to the lapse 
of time and other technical difficulties, which served as 
a pretext for coming to no determination on the merits.' 
Hertford, or rather his son, not long after, endeavoured 
indirectly to bring forward the main question by means 
of a suit for some lands against lord Monteagle. This is 
said to have been heard in the court of wards, where a 
jury was empanelled to try the fact. But the law 
officers of the crown interposed to prevent a verdict, 
which, though it could not have been legally conclusive 
upon the marriage, would certainly have given a sanc- 
tion to it in public opinion. 1 * The house of Seymour was 

1752 were always ready to do that ser- next note, Birch's Negotiations, p. 219, 

vice for a fee. or Aikin's James the First, i. 225. 

h " Hereupon I shall add, what I have V " The same day a great cause be- 
heard related from persons of great tween the lord Beauchamp and Mont- 
credit, which is, that the validity of this eagle was heard in the court of wards, 
marriage was afterwards brought to a the main point whereof was to prove the 
trial at the common law ; when the lawfulness of E. of Hertford's marriage, 
minister who married them being pre- The court sat until five of the clock in 
sent, and other circumstances agreeing, the afternoon, and the jury had a week's 
the jury (whereof John Digby of Coleshill, respite for the delivery of their verdict" 
in com. War., esquire, was the foreman) Letter of Sir E. Hoby to Sir T. Edmonds, 
found it a good marriage." Baronage of Feb. 10, 1606. " For my lord of Hertford's 
England, part ii. 369. Mr. Luders doubts cause, when the verdict was ready to be 
the accuracy of Dugdale's story; and I given up, Mr. Attorney interposed him- 
think it not unlikely that it is a confused self for the king, and said that the land 
account of what happened in the court that they both strove for was the king's, 
of wards. and, until his title were decided, the jury 

' I derive this fact from a Cotton MS. ought not to proceed ; not doubting 

Vitellius, C. xvi. 412, &c; but the but the king will be gracious to both 

volume is much burned, and the papers lords. But thereby both land and 

confused with others relative to lord legitimation remain undecided." The 

Essex's divorce. See as to the same suit, same to the same, March 7. Sloane 

or rather perhaps that mentioned in the MSS. 4176. 



James I. EARL OF HERTFORD'S ISSUE. 293 

now compelled to seek a renewal of its honours by an- 
other channel. Lord Beauchamp, as he had uniformly 
been called, took a grant of the barony of Beauchamp, 
and another of the earldom of Hertford, to take effect 
upon the death of the earl, who is not denominated his 
father in the patent. 1 But after the return of Charles II., 
in the patent restoring this lord Beauchamp's son to the 
dukedom of Somerset, he is recited to be heir male of the 
body of the first duke by his wife Anne, which esta- 
blishes (if the recital of a private act of parliament can 
be said to establish anything) the validity of the disputed 
marriage.™ 

The descent from the younger daughter of Mary 
Brandon, Eleanor, who married the earl of Cumberland, 
is subject to no difficulties. She left an only daughter, 
married to the earl of Derby, from whom the claim de- 
volved again upon females, and seems to have attracted 
less notice during the reign of Elizabeth than some 
others much inferior in plausibility. If any should be 
of opinion that no marriage was regularly contracted 
between the earl of Hertford and lady Catherine Grey, 
so as to make their children capable of inheritance, 
the title to the crown, resulting from the statute of 
35 H. VIII. and the testament of that prince, will have 
descended at the death of Elizabeth on the issue of the 
countess of Cumberland, the youngest daughter of the 
duchess of Suffolk, lady Frances Keyes, having died 
without issue." In neither case could the house of Stuart 

1 Dugdalc's Baronage. Luder's Essay by Persons's treatises, Leicester's Corn- 
on the Right of Succession to the Crown monwealth, and The Conference, to the 
in the Reign of Elizabeth. This inge- legitimacy of the Seymours. Catherine 
nious author is, I believe, the first who Grey had been betrothed, or perhaps 
has taken the strong position as to the married, to lord Herbert, son of the earl 
want of legal title to the house of Stuart of Pembroke, during the brilliant days of 
which 1 have endeavoured so support her family, at the close of Edward's reign. 
In the entertaining letters of Joseph But, on her father's fall, Pembroke caused 
Mede on the news of the day, Harl. a sentence of divorce to be pronounced, 
MSS. 389, it is said that the king had the grounds of which do not appear, but 
thought of declaring Hertford's issue by which was probably sufficient in law to 
lady Catherine Grey illegitimate in the warrant her subsequent union with Hert- 
parliament of 1621, and that lord South- ford. No advantage is taken of this in 
aniptcin's commitment was for having the proceedings, which seems to show 
searched for proofs of their marriage, that there was no legal bond remaining 
June 30, 1622. between the parties. Camden says she 
m Luders, ubi supra. was divorced from lord Herbert, " being 
n I have not adverted to one objection so far gone with child as to be very near 
which some urged at the time, as we find her time."' But, from her youth at the 



294 KEC0GNIT10N OF JAMES'S TITLE. Chap. VI. 

have a lawful claim. But I may, perhaps, have dwelled 
too long on a subject which, though curious and not very 
generally understood, can be of no sort of importance, 
except as it serves to cast ridicule upon those notions of 
legitimate sovereignty and absolute light which it was 
once attempted to set up as paramount even to the great 
interests of a commonwealth. 

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

James left a kingdom where his authority was inces- 
santly thwarted, and sometimes openly assailed, for one 
wherein the royal prerogative had for more than a cen- 
time, and the silence of all other writers, exalted notions concerning the power of 
I conclude this to be unworthy of credit prerogative of kings and the sacredness 

° Bolingbroke is of this opinion, con- of their persons." Dissertation on Par- 
sidering the act of recognition as " the ties, Letter II. 
era of hereditary right, and of all those P Stat. 1 Jac. c 1. 



James I. ELIZABETH'S LOSS OF POPULARITY. 295 

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

The new king's character, notwithstanding the vi- 
cinity of Scotland, seems to have been little „ 
understood by the English at his accession, puiarityof 
But he was not long in undeceiving them, if it the king * 

1 This is confirmed by a curious little Carte says, " foreigners were shocked on 

tract in the British Museum, Sloane James's arrival at the applause of the 

MSS. 827, containing a short history of populace, who had professed to adore the 

the queen's death and new king's acces- late queen, but in fact she had no huzzas 

sion. It affords a good contemporary after Essex's execution. She was in four 

illustration of the various feelings which days' time as much forgot as if she had 

influenced men at this crisis, and is never existed, by all the world, and even 

written in a dispassionate manner. The by her own servants." Vol. iii. p. 707. 

author ascribes the loss of Elizabeth's This is exaggerated, and what Carte could 

popularity to the impoverishment of the not know ; but there is no doubt that the 

realm, and to the abuses which prevailed, generality were glad of a change. 



296 



UNPOPULARITY OF JAMES. 



Chap. VI. 



be true that his popularity had vanished away before his 
arrival in London/ The kingdom was full of acute wits 
and skilful politicians, quick enough to have seen through 
a less unguarded character than that of James. It was 
soon manifest that he was unable to wield the sceptre of 
the great princess whom he ridiculously affected to de- 
spise, so as to keep under that rising spirit which might 
perhaps have grown too strong even for her control. 6 
He committed an important error in throwing 
towards the away the best opportunity that had offered 
puritans. itself for healing the wounds of the church of 
England. In his way to London the malcontent clergy 
presented to him what was commonly called the Mil- 
lenary Petition, as if signed by 1000 ministers, though 
the real number was not so great.' This petition con- 



r Carte, no foe surely to the house of 
Stuart, says, " By the time he reached 
London the admiration of the intelligent 
world was turned into contempt." On 
this journey he gave a remarkable proof 
of his hasty temper and disregard of law, 
in ordering a pickpocket taken in the 
fact to be hanged without trial. The 
historian last quoted thinks fit to say, in 
vindication, that " all felonies committed 
within the verge of the court are cog- 
nisable in the court of the king's house- 
hold," referring to 33 H. 8, c. 1. This 
act however contains no such thing ; nor 
does any court appear to have been held. 
Though the man's notorious guilt might 
prevent any open complaint of so illegal 
a proceeding, it did not fail to excite ob- 
servation. " I hear our new king," says 
sir John Harrington, "has hanged one 
man before he was tried ; it is strangely 
done : now, if the wind bloweth thus, 
why may not a man be tried before he 
has offended?" Nugae Antiquae, vol. i. 
p. 180. 

Birch and Carte tell us, on the authority 
of the French ambassador's despatches, 
that on this journey he expressed a great 
contempt for women, suffering them to 
be presented on their knees, and indis- 
creetly censuring his own wife ; that he 
offended the military men by telling 
them they might sheathe their swords, 
since peace was his object ; that he showed 
impatience of the common people, who 
flocked to see him while hunting, driving 



them away with curses, very unlike the 
affable manners of the late queen. This 
is confirmed by Wilson, in Rennet's 
Complete History, vol. ii. p. 667. 

[It is also mentioned in the extracts 
from the reports of Beaumont, the French 
ambassador, published in Raumer's Il- 
lustrations of the History of the 16 th 
and 17 th Centuries. (Lord F. Egerton's 
translation, 1835, vol. ii. pp. 196, 202.) 
These extracts give a most unfavourable 
picture of the conduct of James at his 
accession, as those from other ambassa- 
dors do at a later period.] 

8 Sully, being sent over to compliment 
James on his accession, persisted in wear- 
ing mourning for Elizabeth, though no 
one had done so in the king's presence, 
and he was warned that it would be 
token ill "dans une cour ou il sembloit 
qu'on eut si fort affecte* de mettre en 
oubli cette grande reine, qu'on n'y faisoit 
jamais mention d'elle, et qu'on evitoit 
meme de prononcer son nom." Me"m. 
de Sully, 1. 14. James aft* wards spoke 
slightingly to Sully of his predecessor, 
and said that he had long ruled England 
through her ministers. 

t It was subscribed by 825 ministers 
from twenty-five counties. It states that 
neither as factious men desiring a popu- 
lar party in the church, nor as schisma- 
tics aiming at the dissolution of the state 
ecclesiastical, they humbly desired the 
redress of some abuses. Their objections 
were chiefly to the cap and surplice, the 



James I. HIS CONDUCT TO THE PURITANS. 297 

tained no demand inconsistent with the established 
hierarchy. James, however, who had not unnaturally 
taken an extreme disgust at the presbyterian clergy of 
his native kingdom, by whom his life had been per- 
petually harassed, showed no disposition to treat these 
petitioners with favour." The bishops had promised 
him an obsequiousness to which he had been little accus- 
tomed, and a zeal to enhance his prerogative which they 
afterwards too well displayed. His measures towards the 
nonconformist party had evidently been resolved upon 
before he summoned a few of their divines to the famous 
conference at Hampton Court. In the accounts that we 
read of this meeting we are alternately struck with 
wonder at the indecent and partial behaviour of the 
king, and at the abject baseness of the bishops, mixed, 
according to the custom of servile natures, with insolence 
towards their opponents/ It was easy for a monarch 
and eighteen churchmen to claim the victory, be the 
merits of their dispute what they might, over four 
abashed and intimidated adversaries." A very few 
alterations were made in the church-service after this 
conference, but not of such moment as to reconcile pro- 



cross in baptism, baptism by women, con- far as to request anything of that kind, 

flrmation, the ring in marriage, the read- T Strype's Whitgift, p. 571 ; Collier, 

ing of the Apocrypha, bowing at the p. 673; Neal, p. 411 ; Fuller, partii. p. 7; 

name of Jesus, &c. ; to non-residence and State Trials, vol. ii. p. 69 ; Win wood, 

incapable ministers, the commendams ii. 13. All these, except the last, are 

held by bishops, unnecessary excom- taken from an account of the conference 

munications, and other usual topics, published by Barlow, and probably more 

Neal, p. 408 ; Fuller, part ii. p. 22. favourable to the king and bishops than 

a The puritans seem to have flattered they deserved. See what Harrtogton, an 

themselves that James would favour their eye-witness, says in Nugae Antiquse, 

sect, on the credit of some strong asser- 1. igi, which I would quote as the best 

tions he had occasionally made of his evidence of James's behaviour, were the 

adherence to the Scots kirk. Some of passage quite decent, 

these were a good while before ; but on w Reynolds, the principal disputant on 

quitting the kingdom he had declared the puritan side, was nearly, if not alto- 

that he left it in a state which he did not gether, the most learned man in England, 

intend to alter. Neal, 406. James how- He was censured by his faction for 

ever was all his life rather a bold liar making a weak defence ; but the king's 

than a good dissembler. It seems strange partiality and intemperance plead his 

that they should not have attended to his apology. He is said to have complained 

Basilicon Duron, printed three years be- of unfair representation in Barlow's ac- 

fore, though not for general circulation, count. Hist, and Ant. of Oxford, ii. 293. 

wherein there is a passage quite decisive James wrote a conceited letter to one 

of his disposition towards the presby- Blake, boasting of his own superior logic 

terians and their scheme of polity. The and learning. Strype's Whitgift, Ap- 

Millenary Petition indeed did not go so pend. 239. 



298 . TREATMENT OF PURITANS. Chap. Vl. 

bably a single minister to the established discipline/ 
The king soon afterwards put forth a proclamation 
requiring all ecclesiastical and civil officers to do their 
duty by enforcing conformity, and admonishing all men 
not to expect nor attempt any further alteration in the 
public service ; for "he would neither let any presume 
that his own judgment, having determined in a matter 
of this weight, should be swayed to alteration by the 
frivolous suggestions of any light spirit, nor was he 
ignorant of the inconvenience of admitting innovation 
in things once settled by mature deliberation." r And 
he had already strictly enjoined the bishops to proceed 
against all their clergy who did not observe the pre- 
scribed order ; 2 a command which Bancroft, who about 
this time followed Whitgift in the primacy, did not wait 
to have repeated. But the most enormous outrage on 
the civil rights of these men was the commitment to 
prison of ten among those who had presented the 
Millenary Petition ; the judges having declared in the 
star-chamber that it was an offence finable at discretion, 
and very near to treason and felony, as it tended to 
sedition and rebellion." By such beginnings did the 
house of Stuart indicate the course it would steer. 

An entire year elapsed, chiefly on account of the 
unhealthiness of the season in London, before James 
summoned his first parliament. It might perhaps have 
been more politic to have chosen some other city ; for 
the length of this interval gave time to form a disadvan- 
tageous estimate of his administration, and to alienate 
beyond recovery the puritanical party. Libels were 
already in circulation reflecting with a sharpness never 

x Rymer, xvi. 565. that the dean and chapter should always 

v Strype's Whitgift, 587. How de- assent, kc. And, in his predominant 

sirous men not at all connected in faction spirit of improvement, asks, "Why the 

with the puritans were of amendments in civil state should be purged and restored 

the church, appears by a tract of Bacon, by good and wholesome laws made every 

written, as it seems, about the end of three or four years in parliament assem- 

1603, vol. i. p. 387. — He excepts to bled, devising remedies as fast as time 

several matters of ceremony; the cap breedeth mischief ; and contrariwise the 

and surplice, the ring in marriage, the ecclesiastical state should still continue 

use of organs, the form of absolution, upon the dregs of time, and receive no 

lay-baptism, &c And inveighs against alteration now for these forty-five years 

the abuse of excommunication, against or more ? " 

non-residence and pluralities, the oath z Strype's Whitgift, 587. 

ex-officio, the sole exercise of ordination a Neal, 432 ; Winwood, ii. 36. 
and jurisdiction by the bishop, conceiving 



Jamks I. THE ' TRUE LAW OF FREE MONARCHIES.* 299 

before known on the king's personal behaviour, which 
presented an extraordinay contrast to that of Elizabeth. b 
The nation, it is easy to perceive, cheated itself into a 
persuasion that it had borne that princess more affection 
than it had really felt, especially in her latter years ; the 
sorrow of subjects for deceased monarchs being often 
rather inspired by a sense of evil than a recollection of 
good. James, however, little heeded the popular voice, 
satisfied with the fulsome and preposterous adulation of 
his court, and intent on promulgating certain maxims 
concerning the dignity and power of princes, which he 
had already announced in his discourse on the True Law 
of Free Monarchies, printed some years before in Scot- 
land. In this treatise, after laying it down that mo- 
narchy is the true pattern of divinity, and proving the 
duty of passive obedience, rather singularly, from that 
passage in the book of Samuel where the prophet so 
forcibly paints the miseries of absolute power, he denies 
that the kings of Scotland owe their crown to any pri- 
mary contract, Fergus, their progenitor, having con- 
quered the country with bis Irish ; and advances more 
alarming tenets, as that the king makes daily statutes 
and ordinances, enjoining such pains thereto as he thinks 
meet, without any advice of parliament or estates ; that 
general laws made publicly in parliament may by the 
king's authority be mitigated or suspended upon causes 
only known to him; and that, "although a good king 
will frame all his actions to be according to the law, yet 
he is not bound thereto, but of his own will and for 
example-giving to his subjects." c These doctrines, if 
not absolutely novel, seem peculiarly indecent, as well 
as dangerous, from the mouth of a sovereign. Yet they 
proceeded far more from James's self-conceit and pique 
against the republican spirit of presbyterianism than 
from his love of power, which (in its exercise I mean, as 
distinguished from its possession) he did not feel in so 
eminent a degree as either his predecessor or his son. 
In the proclamation for calling together his first par- 

b See one of the Somers Tracts, vol. il. ambassadors, Sully and La Boderie, 
p. 144, entitled ' Advertisements of a thought most contemptibly of the king. 
Loyal Subject, drawn from the Observa- Lingard, vol. ix. p. 107. His own cour- 
tion of the People's Speeches.' This tiers, as their private letters show, dis- 
appears to have been written before the liked and derided him. 
meeting of parliament The French c King James's Works, p. 2C7. 



300 PARLIAMENT CONVOKED IRREGULARLY. Chap. VI. 

liament, the king, after dilating, as was his favourite 
practice, on a series of rather common truths in very- 
good language, charges all persons interested in the 
choice of knights for the shire to select them out of the 
principal knights or gentlemen within the county ; and 
Parliament f° r the burgesses that choice he made of men 
convoked f sufficiency and discretion, without desire to 
guia" pro- please parents and friends that often speak for 
ciamation. their children or kindred ; avoiding persons 
noted in religion for their superstitious blindness one 
way, or for their turbulent humour other ways. We do 
command, he says, that no bankrupts or outlaws be 
chosen, but men of known good behaviour and sufficient 
livelihood. The sheriffs are charged not to direct a writ 
to any ancient town being so ruined that there are not 
residents sufficient to make such choice, and of whom 
such lawful election may be made. All returns are to 
be filed in chancery, and if any be found contrary to this 
proclamation the same to be rejected as unlawful and 
insufficient, and the place to be fined for making it; 
and any one elected contrary to the purport, effect, 
and true meaning of this proclamation, to be fined and 
imprisoned.* 1 

Such an assumption of control over parliamentary 
Question of elections was a glaring infringement of those 
and Good- privileges which the house of commons had 
wins been steadily and successfully asserting in the 

election. ^q reign. An opportunity very soon occurred^ 
of contesting this important point. At the election for 7*v 
the county of Buckingham sir Francis Goodwin had / 
been chosen in preference to sir John Fortescue, a privy 
councillor, and the writ returned into chancery. Good- 
win having been some years before outlawed, the return 
was sent back to the sheriff, as contrary to the late pro- 
clamation ; and, on a second election, sir John Fortescue 
was chosen. This matter, being brought under the con- 
sideration of the house of commons a very few days 
after the opening of the session, gave rise to their first 
struggle with the new king. It was resolved, after 
hearing the whole case, and arguments by members on 
both sides, that Goodwin was lawfully elected and re- 
turned, and ought to be received. The first notice taken 

d Pari. Hist i. 967. 



James I. CONTESTED ELECTION. 301 

of this was by the lords, who requested that this might 
be discussed in a conference between the two houses 
before any other matter should be proceeded in. The 
commons returned for answer that they conceived it not 
according to the honour of the house to give account of 
any of their proceedings. The lords replied, that, having 
acquainted his majesty with the matter, he desired there 
might be a conference thereon between the two houses. 
Upon this message the commons came to a resolution 
that the speaker with a numerous deputation of mem- 
bers should attend his majesty and report the reasons 
of their proceedings in Goodwin's case. In this confer- 
ence with the king, as related by the speaker, it appears 
that he had shown some degree of chagrin, and insisted 
that the house ought not to meddle with returns, which 
could only be corrected by the court of chancery ; and 
that, since they derived all matters of privilege from him 
and his grant, he expected they should not be turned 
against him. He ended by directing the house to confer 
with the judges. After a debate which seems from the 
minutes in the journals to have been rather warm, it 
was unanimously agreed not to have a conference with 
the judges; but the reasons of the house's proceeding 
were laid before the king in a written statement or 
memorial, answering the several objections that his 
majesty had alleged. This they sent to the lords, 
requesting them to deliver it to the king, and to be 
mediators in behalf of the house for his majesty's satis- 
faction ; a message in rather a lower tone than they had 
previously taken. The king, sending for the speaker 
privately, told him that he was now distracted in judg- 
ment as to the merits of the case ; and, for his further 
satisfaction, desired and commanded, as an absolute king, 
that there should be a conference between the house and 
the judges. Upon this unexpected message, says the jour- 
nal, there grew some amazement and silence. But at last 
one stood up and said, " The prince's command is like a 
thunderbolt ; his command upon our allegiance like the 
roaring of a lion. To his command there is no contra- 
diction ; but how or in what manner we should now 
proceed to perform obedience, that will be the ques- 
tion."' It was resolved to confer with the judges in 

e Commons' Journals, 1. 166. 



302 SHIRLEY'S CASE OF PRIVILEGE. Chap. VI. 

presence of the king and council. In this second con- 
ference the king, after some favourable expressions 
towards the house, and conceding that it was a court 
of record, and judge of returns, though not exclusively 
of the chancery, suggested that both Goodwin and 
Fortescue should be set aside by issuing a new writ. 
This compromise was joyfully accepted by the greater 
part of the commons, after the dispute had lasted nearly 
three weeks/ They have been considered as victorious, 
upon the whole, in this contest, though they apparently 
fell short in the result of what they had obtained some 
years before. But no attempt was ever afterwards made 
to dispute their exclusive jurisdiction. 8 ^/ 

The commons were engaged during this>ession in the 
,_. . , defence of another privilege, to which they 
case of annexed perhaps a disproportionate import- . 
privilege. ance# gj r Thomas Shirley, a member, having"^ 
been taken in execution on a private debt before their 
meeting, and the warden of the Fleet prison refusing to 
deliver him up, they were at a loss how to obtain his 
release. Several methods were projected ; among which 
that of sending a party of members with the serjeant 
and his mace, to force open the prison, was carried on a 
division ; but the speaker hinting that such a vigorous 
measure would expose them individually to prosecution 
as trespassers, it was prudently abandoned. The warden, 
though committed by the house to a dungeon in the 
Tower, continued obstinate, conceiving that by releasing 
his prisoner he should become answerable for the debt. 
They were evidently reluctant to solicit the king's inter- 
ference ; but, aware at length that their own authority 
was insufficient, " the vice-chamberlain," according to a 
memorandum in the journals, " was privately instructed 
to go to the king and humbly desire that he would be 
pleased to command the warden, on his allegiance, to 

t It appears that some of the more speaker expressing his acquiescence. Id. 

eager patriots were dissatisfied at the con- 168. 

cession made by vacating Goodwin's seat, 8 Commons' Journals, 147, &c; Pari, 

and said they had drawn on themselves Hist. 997 ; Carte, iii. 730, who gives, on 

the reproach of inconstancy and levity, this occasion, a review of the earlier cases 

" But the acclamation of the house was, where the house had entered on matters 

that it was a testimony of our duty and of election. See also a rather curious 

no levity." It was thought expedient, letter of Cecil in Winwood's Memorials, 

however, to save their honour, that ii. 18, where he artfully endeavours to 

Goodwin should send a letter to the treat the matter as of little importance. 



James I. COMPLAINTS OF GRIEVANCES. 303 

deliver up sir Thomas; not as petitioned for by the 
house, but as if himself thought it fit, out of his own 
gracious judgment." By this stratagem, if we may so 
term it, they saved the point of honour and recovered 
their member. 1 * The warden's apprehensions, however, 
of exposing himself to an action for the escape gave rise 
to a statute which empowers the creditor to sue out a 
new execution against any one who shall be delivered 
by virtue of his privilege of parliament, after that shall 
have expired, and discharges from liability those out of 
whose custody such persons shall be delivered. This is 
the first legislative recognition of privilege.' The most 
important part of the whole is a proviso subjoined to the 
act, " That nothing therein contained shall extend to 
the diminishing of any punishment to be hereafter, by 
censure in parliament, inflicted upon any person who 
hereafter shall make or procure to be made any such 
arrest as is aforesaid." The right of commitment, in 
such cases at least, by a vote of the houge of commons, 
is here unequivocally maintained. J^C_ 

It is not necessary to repeat the -complaints of eccle- 
siastical abuses preferred by this house of com- Comp i aints 
mons, as by those that had gone before them, of griev- 
James, by siding openly with the bishops, had ances 
given alarm to the reforming party. It was anticipated 
that he would go farther than his predecessor, whose 
uncertain humour, as well as the inclinations of some of 
her advisers, had materially counterbalanced the dislike 
she entertained of the innovators. A code of new canons 
had recently been established in convocation with the 
king's assent, obligatory perhaps upon the clergy, but 
tending to set up an unwarranted authority over the 
whole nation ; imposing oaths and exacting securities in 
certain cases from the laity, and aiming at the exclusion 
of nonconformists from all civil rights.* Against these 
canons, as well as various other grievances, the commons 
remonstrated in a conference with the upper house, but 
with little immediate effect.™ They made a more re- 
fa Commons' Journals, p. 155, &c. ; facto ; consequently become incapable of 
Pari. Hist. 1028 ; Carte, 734. being witnesses, of suing for their debts, 

i 1 Jac. I. c. 13. &c. Neal, 428. But the courts of law 

k By one of these canons, all persons disregarded these ipso facto excommuni- 
affirming any of the thirty-nine articles cations, 
to be erroneous are excommunicated ipso m Somcrs Tracts, ii. 14 ; Journals, 199, 



304 COMPLAINTS OF GRIEVANCES. Chap. VI. 

markable effort in attacking some public mischiefs of 
a temporal nature, which, though long the theme of 
general murmurs, were closely interwoven with the 
ancient and undisputed prerogatives of the crown. 
Complaints were uttered, and innovations projected, by 
the commons of 1604, which Elizabeth would have met 
with an angry message, and perhaps visited with punish- 
ment on the proposers. James, however, was not entirely 
averse to some of the projected alterations, from which 
he hoped to derive a pecuniary advantage. The two 
principal grievances were purveyance and the incidents 
of military tenure. The former had been restrained by 
not less than thirty-six statutes, as the commons assert 
in a petition to the king ; in spite of which the im- 
pressing of carts and carriages, and the exaction of 
victuals for the king's use, at prices far below the true 
value, and in quantity beyond what was necessary, con- 
tinued to prevail under authority of commissions from 
the board of green cloth, and was enforced, in case 
of demur or resistance, by imprisonment under their 
warrant. The purveyors, indeed, are described as 
living at free quarters upon the country, felling woods 
without the owners' consent, and commanding labour 
with little or no recompence." Purveyance was a very 
ancient topic of remonstrance ; but both the inadequate 
revenues of the crown, and a supposed dignity attached 
to this royal right of spoil, had prevented its abolition 
from being attempted. But the commons seemed still 
more to trench on the pride of our feudal monarchy 
when they proposed to take away guardianship in 
chivalry ; that lucrative tyranny, bequeathed by Norman 
conquerors, the custody of every military tenant's estate 
until he should arrive at twenty-one, without accounting 
for the profits. This, among other grievances, was re- 
ferred to a committee, in which Bacon took an active 
share. They obtained a conference on this subject with 

235, 238 ; Pari. Hist 1067. It is here desired the house to confer on the sub- 
said that a bill restraining excommuni- ject with the convocation, which they 
cations passed into a law, which does not justly deemed unprecedented, and dero- 
appear to be true, though James him- gatory to their privileges; but offered to 
self had objected to their frequency. I confer with the bishops, as lords of par- 
cannot trace such a bill In the journals liament Journals, 173. 
beyond the committee, nor is it in the n Bacon's Works, i. 624; Journals, 
statute-book. The fact is, that the king 190,215. 



James I. COMMONS' VINDICATION. 305 

the lords, who refused to agree to a bill for taking 
guardianship in chivalry away, hut offered to join in a 
petition for that purpose to the king, since it could 
not be called a wrong, having been patiently endured 
by their ancestors as well as themselves, and being 
warranted by the law of the land. In the end the lords 
advised to drop the matter for the present, as somewhat 
unseasonable in the king's first parliament. 

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

The king's discontent at the proceedings of this 
session, which he seems to have rather strongly 
expressed in some speech to the commons that vindication 
has not been recorded, - gave rise to a very re- «f tf>em- 
markable vindication, prepared by a committee 
at the house's command, and entitled ' A Form of 
Apology and Satisfaction to be delivered to his Majesty,' 
though such may not be deemed the most appropriate 
title. It contains a full and pertinent justification of all 
those proceedings at which James had taken umbrage, 
and asserts, with respectful boldness and in explicit 
language, the constitutional rights and liberties of parlia- 
ment. If the English monarchy had been reckoned as 
absolute under the Plantagenets and Tudors as Hume 

Commons' Journals, 150, &c. P Ibid. 246. "• Ibid. 230. 

VOL. I. X 



306 COMMONS' VINDICATION. Chap. VI. 

has endeavoured to make it appear, the commons -of 
1604 must have made a surprising advance in their 
notions of freedom since the king's accession. Adverting 
to what they call the misinformation openly delivered to 
his majesty in three things ; namely, that their privileges 
were not of right, but of grace only, renewed every 
parliament on petition ; that they are no court of record, 
nor yet a court that can command view of records ; that 
the examination of the returns of writs for knights and 
burgesses is without their compass, and belonging to the 
chancery : assertions, they say, " tending directly and 
apparently to the utter overthrow of the very funda- 
mental privileges of our house, and therein of the rights 
and liberties of the whole commons of your realm of 
England, which they and their ancestors, from time 
immemorial, have undoubtedly enjoyed under your 
majesty's most noble progenitors;" and against which 
they expressly protest, as derogatory in the highest 
degree to the true dignity and authority of parliament, 
desiring " that such their protestations might be re- 
corded to all posterity ;" they maintain, on the con- 
trary, "1. That their privileges and liberties are their 
right and inheritance, no less than their very lands and 
goods ; 2. That they cannot be withheld from them, 
denied, or impaired, but with apparent wrong to the 
whole state of the realm ; 3. That their making request, J 
at the beginning of a parliament, to enjoy their privilege,; 
is only an act of manners, and does not weaken their 
right ; 4. That their house is a court of record, and has, 
been ever so esteemed j 5. That there is not the highest 
standing court in this land that ought to enter into com* 
petition, either for dignity or authority, with this high 
court of parliament, which, with his majesty's royal 
assent, gives law to other courts, but from other courti 
receives neither laws nor orders; 6. That the house o 
commons is the sole proper judge of return of all sue 
writs, and the election of all such members as belon 
to it, without which the freedom of election were not; 
entire." They aver that in this session the privileges 
of the house have been more universally and dan- 
gerously impugned than ever, as they suppose, since the 
beginnings of parliaments. That, " in regard to the late 
queen's sex and age, and much more upon care to avoid 



James I. COMMONS' VINDICATION. 307 

all trouble, which, by wicked practice might have been 
drawn to impeach the quiet of his majesty's right in the 
succession, those actions were then passed over which 
they hoped in succeeding times to redress and rectify ; 
whereas, on the contrary, in this parliament, not pri- 
vileges, but the whole freedom of the parliament and 
realm, had been hewed from them." " What cause," 
they proceed, " we, your poor commons, have to watch 
over our privileges, is manifest in itself to all men. The 
prerogatives of princes may easily and do daily grow. 
The privileges of the subject are for the most part at an 
everlasting stand. They may be by good providence 
and care preserved; but, being once lost, are not re- 
covered but with much disquiet." They then enter in 
detail on the various matters that had arisen during the 
session, — the business of Goodwin's election, of Shirley's 
arrest, and some smaller matters of privilege to which 
my limits have not permitted me to allude. " We 
thought not," speaking of the first, " that the judges' 
opinion, which yet in due place we greatly reverence, 
being delivered what the common law was, which 
extends only to inferior and standing courts, ought to 
bring any prejudice to this high court of parliament, 
whose power, being above the law, is not founded on the 
common law, but have their rights and privileges pecu- 
liar to themselves." They vindicate their endeavours to 
obtain redress of religious and public grievances : " Your 
majesty would be misinformed," they tell him, " if any 
man should deliver that the kings of England have any 
absolute power in themselves, either to alter religion, 
which God defend should be in the power of any mortal 
man whatsoever, or to make any laws concerning the 
same, otherwise than as in temporal causes, by consent 
of parliament. We have and shall at all times by our 
oaths acknowledge that your majesty is sovereign lord 
and supreme governor in both." r Such was the voice 
of the English commons in 1604, at the commencement 
of that great conflict for their liberties which is measured 

r Pari. Hist. 1030, from Petyt's Jus ignorant of it It is just alluded to by 

Parliamentarium, the earliest book, as far Rapin. 

as I know, where this important docu- It was remarked that the attendance 

ment is preserved. The entry on the of members in this session was more fre- 

Journals, p. 243, contains only the first quent than had ever been known, so that 

paragraph. Hume and Carte have been fresh seats were required. Journals, 141. 

x2 



308 



SESSION OF 1605. 



Chap. VI. 



by the line of the house of Stuart, But it is not certain 
that this apology was ever delivered to the king, though 
he seems to allude to it in a letter -written to one of his 
ministers about the same time." 

The next session, which is remarkable on account of 
Session the conspiracy of some desperate men to blow 
1605. -up both houses of parliament with gunpowder 
on the day of their meeting, did not produce much 
worthy of our notice. A bill to regulate, or probably to 
suppress, purveyance was thrown out by the lords. The 
commons sent up another bill to the same effect, which 
the upper house rejected without discussion, by a rule 
then perhaps first established, that the same bill could 
not be proposed twice in one session.' They voted a 
liberal subsidy, which the king, who had reigned three 



s " My faithful 3, such is now my mis- 
fortune, as I must be for this time secre- 
tary to the devil in answering your letters 
directed unto him. That the entering 
now into the matter of the subsidy should 
be deferred until the council's next meet- 
ing with me, J think no ways convenient, 
especially for three reasons. First, ye see 
it has bin already longest delayd of any 
thing, and yet yee see the lower house 
are ever the longer the further from it ; 
and (as in every thing that concerns mee) 
delay of time does never turn them to- 
wards mee, but, by the contrary, every 
hour breedeth a new trick of contradiction 
amongst them, and every day produces 
new matter of sedition, so fertile are 
their brains in ever buttering forth ve- 
nome. Next, the Parlt. is now so very 
near an end, as this matter can suffer no 
longer delay. And thirdly, if this be 
not granted unto before they receive my 
answer unto their petition, itneeds never 
to be moved, for the will of man or 
angel cannot devise a pleasing answer to 
their proposition, except I should pull 
the crown not only from my own head, 
but also from the head of all those that 
shall succeed unto mee, and lay it down 
at their feet. And that freedom of utter- 
ing my thoughts, which no extremity, 
strait, nor peril of my life could ever be- 
reave mee of in time past, shall now 
remain with mee as long as the soul 
shall with the body. And as for the 
Reservations of the Bill of Tonnage and 



Poundage, yee of the Upper House must 
out of your Love and Discretion help 
it again, or otherwise they will in this, 
as in all things else that concern mee, 
wrack both me and all my Posterity. 
Yee may impart this to little 10 and 
bigg Suffolk. And so Farewell from my 
Wildernesse, w<*> 1 had rather live in 
(as God shall judge mee) like an Her- 
mite in this Forrest, then be a King 
over such a People as the pack of Puri- 
tans are that over-rules the lower-house. 

J. R." 
(MS. penes autorem.) 

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

t Pari. Hist. Journals, 214, 278, &c. 
In a conference with the lords on this 
bill, Mr. Hare, a member, spoke so 
warmly as to give their lordships offence 
and to incur some reprehension. " You 
would have thought," says Sir Thomas 
Hoby, " that Hare and Hyde represented 
two tribunes of the people." Sloane MSS. 
4161. But the commons resented this 
infringement on their privileges, and, 
after voting that Mr. Hare did not err 
in his employment in the committee 
with the lords, sent a message to inform 
the other house of their vote, and to re- 
quest that they would " forbear hereafter 
any taxations and reprehensions in 
their conferences." Journals, Feb. 20 
and 22. 



James I. UNION WITH SCOTLAND DEBATED. 309 

years without one, had just cause to require. For though 
he had concluded a peace with Spain soon after his 
accession, yet the late queen had left a deht of 400,000/., 
and other charges had fallen on the crown. But the 
bill for this subsidy lay a good while in the house of 
commons, who came to a vote that it should not pass till 
their list of grievances was ready to be presented. No 
notice was taken of these till the next session, beginning 
in November, 1606, when the king returned an answer 
to each of the sixteen articles in which matters of 
grievance were alleged. Of these the greater part refer 
to certain grants made to particular persons in the nature 
of monopolies ; the king either defending these in his 
answer, or remitting the parties to the courts „ . 
of law to try their legality. The principal Scotland 
business of this third session, as it had been debated - 
of the last, was James's favourite scheme of a perfect 
union between England and Scotland. It may be 
collected, though this was never explicitly brought 
forward, that his views extended to a legislative incor- 
poration." But in all the speeches on this subject, and 
especially his own, there is a want of distinctness as to 
the object proposed. He dwells continually upon the 
advantage of unity of laws, yet extols those of England as 
the best, which the Scots, as was evident, had no incli- 
nation to adopt. Wherefore then was delay to be 
imputed to our English parliament, if it waited for that 
of the sister kingdom? And what steps were recom- 
mended towards this measure that the commons can be 



n Journals, 316. of itself was a sufficient justification for 

An acute historical critic doubts the dilatorinessofthe English parliament, 

whether James aimed at an union of Nor were the common lawyers who sat 

legislatures, though suggested by Bacon, in the house much better pleased with 

Laing's Hist, of Scotland, Hi. 17. It is Bacon's schemes for remodelling all our 

certain that his own speeches on the sub- laws. See his speech, vol. i. p. 654, for 

ject do not mention this ; nor do I know naturalizing the ante-nati. In this he 

that it was ever distinctly brought for- asserts the kingdom not to be fully 

ward by the government; yet it is hard peopled; "the territories of France, 

to see how the incorporation could have Italy, Flanders, and some parts of Ger- 

been complete without it. Bacon not many, do in equal space of ground bear 

only contemplates the formation of a and contain a far greater quantity of 

single parliament, but the alterations people, if they were mustered by the 

necessary to give it effect, vol. i. p. 638; poll; " and even goes on to assert the 

suggesting that the previous commission population to have been more consider- 

of lords of articles might be adopted for able under the heptarchy, 
some, though not for all, purposes. This 



310 BICKERINGS BETWEEN THE Chap. VI. 

said to have declined, except only the naturalization of 
the ante-nati, or Scots born before the king's accession to 
our throne, which could only have a temporary effect ? * 
Yet Hume, ever prone to eulogize this monarch at the 
expense of his people, while he bestows merited praise 
on his speech in favour of the union, which is upon the 
whole a well- written and judicious performance, charges 
the parliament with prejudice, reluctance, and obstinacy. 
The code, as it may be called, of international hostility, 
those numerous statutes treating the northern inhabitants 
of this island as foreigners and enemies, were entirely 
abrogated. And if the commons, while both the theoiy 
of our own constitution was so unsettled, and its practice 
so full of abuse, did not precipitately give in to schemes 
that might create still further difficulty in all questions 
between the crown and themselves, schemes, too, which 
there was no imperious motive for carrying into effect 
at that juncture, we may justly consider it as an 
additional proof of their wisdom and public spirit. 
Their slow progress, however, in this favourite measure, 
which, though they could not refuse to entertain it, 
they endeavoured to defeat by interposing delays and 
impediments, gave much offence to the king, which 
he expressed in a speech to the two houses, with the 
haughtiness, but not the dignity, of Elizabeth. He 
threatened them to live alternately in the two king- 
doms, or to keep his court at York ; and alluded, with 

* It was held by twelve judges out of after laws, and it is in vigour when laws 

fourteen, in Calvin's case, that the post- are suspended and have not had their 

nati, or Scots born after the king's acces- force." Id. 596. So lord Coke : " What- 

sion, were natural subjects of the king of soever is due by the law or constitution 

England. This is laid down, and irre- of man may be altered; but natural 

sistibly demonstrated by Coke, then legiance or obedience of the subject to 

chief justice, with his abundant legal the sovereign cannot be altered; ergo, 

learning. State Trials, vol. ii. 559. natural legiance or obedience to the sove- 

It may be observed that the high- reign is not due by the law or constitu- 

flying creed of prerogative mingled itself tion of man." 652. 

intimately with this question of natural- There are many doubtful positions 

ization ; which was much argued on the scattered through the judgment in this 

monarchical principle of personal alle- famous case. Its surest basis is the long 

giance to the sovereign, as opposed to the series of precedents, evincing that the 

half-republican theory that lurked in the natives of Jersey, Guernsey, Calais, and 

contrary proposition. " Allegiance," says even Normandy and Guienne, while these 

lord Bacon, " is of a greater extent and countries appertained to the kings of 

dimension than laws or kingdoms, and England, though not in right of its 

cannot consist by the laws merely, be- crown, were never reputed aliens, 
cause It began before laws ; it contlnueth 



James I. CROWN AND THE COMMONS. 311 

peculiar acrimony, to certain speeches made in the 
house, wherein probably his own fame had not been 
spared/ "I looked," he says, "for no such fruits at 
your hands, such personal discourses and speeches, 
which, of all other, I looked you should avoid, as not 
beseeming the gravity of your assembly. I am your 
king ; I am placed to govern you, and shall answer for 
your errors ; I am a man of flesh and blood, and have 
my passions and affections as other men ; I pray you do 
not too far move me to do that which my power may 
tempt me unto." z 

It is most probable, as experience had shown, that such 
a demonstration of displeasure from Elizabeth continual 
would have ensured the repentant submission of bickerings 

,t_ t, , .., i n /. ,! between the 

the commons. But, within a few years ot the cr0 wn and 
most unbroken tranquillity, there had been one commons, 
of those changes of popular feeling which a government 
is seldom observant enough to watch. Two springs had 
kept in play the machine of her administration, affection 
and fear ; attachment arising from the sense of dangers 
endured, and glory achieved, for her people, tempered, 
though n.ot subdued, by the dread of her stern courage 
and vindictive rigour. For James not a particle of loyal 
affection lived in the hearts of the nation, while his 
easy and pusillanimous, though choleric, disposition had 
gradually diminished those sentiments of apprehension 
which royal frowns used to excite. The commons, after 
some angry speeches, resolved to make known to the 
king, through the speaker, their desire that he would 
listen to no private reports, but take his information of 
the house's meaning from themselves ; that he would give 
leave to such persons as he had blamed for their speeches 



y The house had lately expelled sir tain: p. 186. Another, with more asto- 
Christopher Pigott for reflecting on the nishing sagacity, feared that the king 
Scots nation in a speech. Journals, 13th might succeed, by what the lawyers call 
Feb. 1 60V. remitter, to the prerogatives of the British 
* Commons' Journals, 366. kings before Julius Caesar, which would 
The journals are full of notes of these supersede Magna Charta : p. 185. 
long discussions about the union in 1604, James took the title of King of Great 
1606, 1607, and even 1610. It is easy Britain in the second year of his reign, 
to perceive a jealousy that the preroga» Lord Bacon drew a well-written proba- 
tive by some means or other would be mation on that occasion. Bacon, i. 621 ; 
the gainer. The very change of name Rymer, xvi. 603. But it was, not long 
to Great Britain was objected to. One afterwards, abandoned, 
said, we cannot legislate for Great Bri- 



312 JEALOUSY OF COMMONS' INTERFERENCE. Chap. VI. 

to clear themselves in his hearing ; and that he would 
by some gracious message make known his intention 
that they should deliver their opinions with full libeily, 
and without fear. The speaker next day communicated 
a slight but civil answer he had received from the 
king, importing his wish to preserve their privileges, 
especially that of liberty of speech." This, however, 
did not prevent his sending a message a few days 
afterwards, commenting on their debates, and on some 
clauses they had introduced into the bill for the abolition 
of all hostile laws. b And a petition having been prepared 
by a committee under the house's direction for better 
execution of the laws against recusants, the speaker, on 
its being moved that the petition be read, said that his 
majesty had taken notice of the petition as a thing 
belonging to himself, concerning which it was needless 
to press him. This interference provoked some members 
to resent it as an infringement of their liberties. The 
speaker replied that there were many precedents in the 
late queen's time where she had restrained the house 
from meddling in politics of divers kinds. This, as a 
matter of fact, was too notorious to be denied. A motion 
was made for a committee " to search for precedents 
of ancient as well as later times that do concern any 
messages from the sovereign magistrate, king or queen 
of this realm, touching petitions offered to the house 
of commons." The king now interposed by a second 
message, that, though the petition were such as the like 
had not been read in the honse, and contained matter 
whereof the house could not properly take knowledge, 
yet, if they thought good to have it read, he was not 
against the reading. And the commons were so well 
satisfied with this concession, that no further proceedings 
were had ; and the petition, says the Journal, was at 
length, with general liking, agreed to sleep. It con- 
tained some strong remonstrances against ecclesiastical 
abuses, and in favour of the deprived and silenced 
puritans, but such as the house had often before in 
various modes brought forward. 

The ministry betrayed, in a still more pointed manner, 
their jealousy of any interference on the part of the 

a Commons' Journals, p. 370. b p. 377. c P. 384. 



ames I. JEALOUSY OF COMMONS' INTERFERENCE. 313 

commons with the conduct of public affairs in a business 
of a different nature. The pacification concluded with 
Spain in 1604, very much against the general wish, d 
had neither removed all grounds of dispute between the 
governments, nor allayed the dislike of the nations. 
Spain advanced in that age the most preposterous claims 
to an exclusive navigation beyond the tropic, and to the 
sole possession of the American continent; while the 
English "merchants, mindful of the lucrative adventures 
of the queen's reign, could not be restrained from tres- 
passing on the rich harvest of the Indies by contraband 
and sometimes piratical voyages. These conflicting 
interests led of course to mutual complaints of maritime 
tyranny and fraud ; neither likely to be ill-founded, 
where the one party was as much distinguished for the 
despotic exercise of vast power, as the other by boldness 
and cupidity. It was the prevailing bias of the king's 
temper to keep on friendly terms with Spain, or rather 
to court her with undisguised and impolitic partiality . e 
But this so much thwarted the prejudices of his subjects, 
that no part, perhaps, of his administration had such a 
disadvantageous effect on his popularity. The merchants 
presented to the commons, in this session of 1607, a 
petition upon the grievances they sustained from Spain, 
entering into such a detail of alleged cruelties as was 
likely to exasperate that assembly. Nothing, however, 
was done for a considerable time, when, after receiving 
the report of a committee on the subject, the house 
prayed a conference with the lords. They, who acted 
in this and the preceding session as the mere agents of 
government, intimated in their reply that they thought 
it an unusual matter for the commons to enter upon, 
and took time to consider about a conference. After 

d James entertained the strange notion minister, are said to have been favourable 

that the war with Spain ceased by his to peace. Id. 938. 

accession to the throne. By a proclama- e Win wood, vol. ii. p. 100, 152, &c; 
tion dated 23rd June, 1603, he permits Birch's Negotiations of Edmondes. If 
his subjects to keep such ships as had we may believe sir Charles Cornwallis, 
been captured by them before the 24th our ambassador at Madrid, " England 
April, but orders all taken since to be never lost such an opportunity of win- 
restored to the owners. Rymer, xvi. 516. ning honour and wealth as by relinquish- 
He had been used to call the Dutch ing the war." The Spaniards were 
rebels, and was probably kept with diffl- astonished how peace could have been 
culty by Cecil from displaying his par- obtained on such advantageous condi- 
tiality still more outrageously. Carte, tions. Winwood, p. 75. 
iii. 714. All the council, except this 



314 JEALOUSY OF COMMONS' INTERFERENCE. Chap. VI. 

some delay this was granted, and sir Francis Bacon 
reported its result to the lower house. The earl of 
Salisbury managed the conference on the part of the 
lords. The tenor of his speech, as reported by Bacon, 
is very remarkable. After discussing the merits of 
the petition, and considerably extenuating the wrongs 
imputed to Spain, he adverted to the circumstance of 
its being presented to the commons. The crown of 
England was invested, he said, with an absolute power 
of peace and war ; and inferred, from a series of prece- 
dents which he vouched, that petitions made in parlia- 
ment, intermeddling with such matters, had gained little 
success ; that great inconveniences must follow from the 
public debate of a king's designs, which, if they take 
wind, must be frustrated ; and that,, if parliaments have 
ever been made acquainted with matter of peace or war 
in a general way, it was either when the king and 
council conceived that it was material to have some 
declaration of the zeal and aifection of the people, or 
else when they needed money for the charge of a war, 
in which case they should be sure enough to hear of it ; 
that the lords would make a good construction of the 
commons' desire, that it sprang from a forwardness to 
assist his majesty's future resolutions, rather than a 
determination to do that wrong to his supreme power 
which haply might appear to those who were prone to 
draw evil inferences from their proceedings. The earl 
of Northampton, who also bore a part in this conference, 
gave as one reason among others why the lords could 
not concur in forwarding the petition to the crown, that 
the composition of the house of commons was in its first 
foundation intended merely to be of those that have 
their residence and vocation in the places for which 
they serve, and therefore to have a private and local . 
wisdom according to that compass, and so not fit to 
examine or determine secrets of state which depend 
upon such variety of circumstances ; and although he 
acknowledged that there were divers gentlemen in the 
house of good capacity and insight into matters of state, 
yet that was the accident of the person, and not the 
intention of the place ; and things were to be taken in 
the institution, and not in the practice. The commons 
seem to have acquiesced in this rather contemptuous 



James I. ILLEGAL IMPOSITIONS. 315 

treatment. Several precedents indeed might have been 
opposed to those of the earl of Salisbury, wherein the 
commons, especially under Eichard II. and Henry VI., 
had assumed a right of advising on matters of peace and 
war. But the more recent usage of the constitution did 
not warrant such an interference. It was, however, 
rather a bold assertion that they were not the proper 
channel through which public grievances, or those of so 
large a portion of the community as the merchants, 
ought to be represented to the throne/ 

During the interval of two years and a half that 
elapsed before the commencement of the next T mpo8 itJons 
session, a decision had occurred in the court of «n merchan- 

i i • i_ a.1 i t ±1 ±- dise without 

exchequer which threatened the entire over- consent of 
throw of our constitution. It had always been parliament. 
deemed the indispensable characteristic of a limited 
monarchy, however irregular and inconsistent might be 
the exercise of some prerogatives, that no money could 
be raised from the subject without the consent of the 
estates. This essential principle was settled in England, 
after much contention, by the statute entitled Confirmatio 
Chartarum, in the 25th year of Edward I. More com- 
prehensive and specific in its expression than the Great 
Charter of John, it abolishes all " aids, tasks, and prises, 
unless by the common assent of the realm, and for the 
common profit thereof, saving the ancient aids and prises 
due and accustomed ;" the king explicitly renouncing 
the custom he had lately set on wool. Thus the letter 
of the statute and the history of the times conspire to 
prove that impositions on merchandise at the ports, to 
which alone the word prises was applicable, could no 
more be levied by the royal prerogative after its enact- 
ment, than internal taxes upon landed or moveable pro- 
perty, known in that age by the appellations of aids and 
tallages. But as the former could be assessed with 
great ease, and with no risk of immediate resistance, 

f Bacon, i. 663 ; Journals, p. 341. Carte by Salisbury's behaviour. It was Carte's 

says, on the authority of the French am- mistake to rely too much on the de- 

bassador's despatches, that the ministry spatches he was permitted to read in the 

secretly put forward this petition of the IMpot des Affaires Etrangeres ; as if an 

commons in order to frighten the Spanish ambassador were not liable to be deceived 

court into making compensation to the by rumours in a country of which he has 

merchants, wherein they succeeded': iii. in general too little knowledge to correct 

766. This is rendered very improbable them. 



f> 



316 IMPOSITIONS ON MERCHANDISE Chap. VI. 

and especially as certain ancient customs were preserved 
by the statute, 8 so that a train of fiscal oflicers, and a 
scheme of regulations and restraints upon the export and 
import of goods became necessary, it was long before 
the sovereigns of this kingdom could be induced con- 
stantly to respect this part of the law. Hence several 
remonstrances from the commons under Edward III. 
against the maletolts or unjust exactions upon wool, by 
which, if they did not obtain more than a promise of 
effectual redress, they kept up their claim, and per- 
petuated the recognition of its justice, for the sake of 
posterity. They became powerful enough to enforce it 
under Eichard II., in whose time there is little clear 
evidence of illegal impositions ; and from the accession 
of the house of Lancaster it is undeniable that they 
ceased altogether. The grant of tonnage and poundage 
for the king's life, which from the time of Henry V. was 
made in the first parliament of every reign, might per- 
haps be considered as a tacit compensation to the crown 
for its abandonment of these irregular extortions. 

Henry VII., the most rapacious, and Henry VIII., the 
most despotic, of English monarchs, did not presume to 
violate this acknowledged right. The first who had 
again recourse to this means of enhancing the revenue 
was Mary, who, in the year 1557, set a duty upon cloths 
exported beyond seas, and afterwards another on the 
importation of French wines. The former of those was 
probably defended by arguing that there was already a 
duty on wool ; and if cloth, which was wool manufac- 
tured, could pass free, there would be a fraud on the 
revenue. The merchants, however, did not acquiesce 
in this arbitrary imposition, and, as soon as Elizabeth's 
accession gave hopes of a restoration of English govern- 
ment, they petitioned to be released from this burthen. 
The question appears, by a memorandum in Dyer's 

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



James I. WITHOUT CONSENT OF PARLIAMENT. 317 

Beports, to have been extrajudicially referred to the 
judges, unless it were rather as assistants to the privy 
council that their opinion was demanded. This entry 
concludes abruptly, without any determination of the 
judges. 11 But we may presume that, if any such had 
been given in favour of the crown, it would have been 
made public. And that the majority of the bench would 
not have favoured this claim of the crown, we may 
strongly presume from their doctrine in a case of the 
same description, wherein they held the assessment of 
treble custom on aliens for violation of letters patent to 
be absolutely against the law. 1 The administration, 
however, would not release this duty, which continued 
to be paid under Elizabeth. She also imposed one upon 
sweet wines. We read of no complaint in parliament 
against this novel taxation; but it is alluded to by 
Bacon in one of his tracts during the queen's reign, as a 
grievance alleged by her enemies. He defends it, as 
laid only on a foreign merchandise, and a delicacy which 
might be forborne. k But, considering Elizabeth's un- 
willingness to require subsidies from the commons, and 
the rapid increase of foreign traffic during her reign, it 
might be asked why she did not extend these duties to 
other commodities, and secure to herself no trifling 

b Dyer, fol. 165. An argument of the in the exchequer, 1 Eliz., and argued 
great lawyer Plowden in this case of the several times in the presence of all the 
queen's increasing the duty on cloths is judges. Eight were of opinion against 
in the British Museum, Hargrave MSS. the letters patent, among whom Dyer 
32, and seems, as far as the difficult and Catlin, chief justices, as well for the 
handwriting permitted me to judge, ad- principal matter of restraint in the land- 
verse to the prerogative. ing of malmsies at the will and pleasure 

• This case I have had the good fortune of the merchants, for that it was against 

to discover in one of Mr. Hargrave's the laws, statutes, and customs of the 

MSS. in the Museum, 132, foL 66. It realm, Magna Charta, c 30 ; 9 E. 3 ; 14 

is in the handwriting of chief justice E. 3 ; 25 E. 3, c. 2 ; 27 E. 3 ; 28 E. 3 ; 2 

Hyde (temp. Car. I.), who has written R. 2, c 1, and others; as also in the 

in the margin, " This is the report of a assessment of treble custom, which is 

case in my lord Dyer's written original, merely against the law ; also the prohibi- 

but is not in the printed books." The tion above said was held to be private, 

reader will judge for himself why it was and not public. But baron Lake e contra, 

omitted, and why the entry of the former and Browne J. censuit deliberandum, 

case breaks off so abruptly. " Philip And after, at an after meeting the same 

and Mary granted to the town of South- Easter term at Serjeants' Inn, it was re- 

ampton that all malmsy wines should be solved as above. And after by parlia- 

landed at that port under penalty of pay- ment, 5 Eliz., the patent was confirmed 

ing treble custom. Some merchants of and affirmed against aliens." 
Venice having landed wines elsewhere, w Bacon, i. 521. 
an information was brought against them 



318 ILLEGAL IMPOSITIONS. Chap. VI. 

annual revenue. What answer can be given, except 
that, aware how little any unparliamentary levying of 
money could be supported by law or usage, her ministers 
shunned to excite attention to these innovations, which 
wanted hitherto the stamp of time to give them pre- 
scriptive validity ? m 

James had imposed a duty of five shillings per hun- 
dredweight on currants, over and above that of two 
shillings and sixpence, which was granted by the statute 
of tonnage and poundage." Bates, a Turkey merchant, 
having refused payment, an information was exhibited 
against him in the exchequer. Judgment was soon 
given for the crown. The courts of justice, it is hardly 
necessary to say, did not consist of men conscientiously 
impartial between the king and the subject ; some cor- 
rupt with hope of promotion, many more fearful of 
removal, or awe-struck by the frowns of power. The 
speeches of chief baron Fleming, and of baron Clark, 
the only two that are preserved in Lane's Reports, con- 
tain propositions still worse than their decision, and 
wholly subversive of all liberty. " The king's power," 
it was said, " is double — ordinary and absolute ; and 
these have several laws and ends. That of the ordinary 
is for the profit of particular subjects, exercised in ordi- 
nary courts, and called common law, which cannot be 
changed in substance without parliament. The king's 
absolute power is applied to no particular person's bene- 
fit, but to the general safety ; and this is not directed by 
the rules of common law, but more properly termed 
policy and government, varying according to his wisdom 
for the common good ; and all things done within those 
rules are lawful. The matter in question is matter of 
state, to be ruled according to policy by the king's ex- 
traordinary power. All customs (duties so called) are 
the effects of foreign commerce ; but all affairs of com- 
merce and all treaties with foreign nations belong to the 
king's absolute power ; he therefore who has power over 

m Hale's Treatise on the Customs, patent, setting a duty of six shillings 
part 3 ; in Hargrave's Collection of and eightpence a pound, in addition to 
Law Tracts. See also the preface by twopence already payable, on tobacco ; 
Hargrave to Bates's case, in the State intended, no doubt, to operate as a pro- 
Trials, where this most important ques- hibition of a drug t he so much hated, 
tion is learnedly argued. Rymer, xvi. 602. 

n He had previously published letters 



James I. REMONSTRANCES OF THE COMMONS. 319 

the cause, must have it also over the effect. The sea- 
ports are the king's gates, which he may open and shut 
to whom he pleases." The ancient customs on wine 
and wool are asserted to have originated in the king's 
absolute power, and not in a grant of parliament; a 
point, whether true or not, of no great importance, if it 
were acknowledged that many statutes had subsequently 
controlled this prerogative. But these judges impugned 
the authority of statutes derogatory to their idol. That 
of 45 E. 3, c. 4, that no new imposition should be laid 
on wool or leather, one of them maintains, did not bind 
the king's successors ; for the right to impose such 
duties was a principal part of the crown of England, 
which the king could not diminish. They extolled the 
king's grace in permitting the matter to be argued, com- 
menting at the same time on the insolence shown in 
disputing so undeniable a claim. Nor could any judges 
be more peremptory in resisting an attempt to overthrow 
the most established precedents than were these barons 
of king James's exchequer in giving away those funda- 
mental liberties which were the inheritance of every 
Englishman." 

The immediate consequence of this decision was a 
book of rates, published in July, 1608, under the autho- 
rity of the great seal, imposing heavy duties upon almost 
all merchandise. 1 " But the judgment of the court of 
exchequer did not satisfy men jealous of the crown's 
encroachments. The imposition on currants had been 
already noticed as a grievance by the house of commons 
in 1 606. But the king answered, that the question was 
in a course for legal determination; and the commons 
themselves, which is worthy of remark, do not appear 
to have entertained any clear persuasion that the impost 
was contrary to law. q In the session, however, 
which began in February, 1610, they had ac- strances 
quired new light by sifting the legal authorities, ^gj"^'^"^ 
and, instead of submitting their opinions to the session of 
courts of law, which were in truth little worthy . I610- 
of such deference, were the more provoked to remonstrate 

° State Trials, ii. 371. cessors, on pain of his displeasure." State 

P Hale'* Treatise on the Customs. Trials, 481. 

These were perpetual, " to be for ever 9 Journals, 295, 297. 
hereafter paid to the king and his sue- 



320 REMONSTRANCES OF THE COMMONS Chap. VI. 

against the novel usurpation those servile men had en- 
deavoured to prop up. Lawyers, as learned probably 
as most of the judges, were not wanting in their ranks. 
The illegality of impositions was shown in two elaborate 
speeches by Hakewill and Yelverton/ And the countiy 
gentlemen, who, though less deeply versed in prece- 
dents, had too good sense not to discern that the next 
step would be to levy taxes on their lands, were de- 
lighted to find that there had been an old English con- 
stitution not yet abrogated, which would bear them out 
in their opposition. When the king therefore had inti- 
mated by a message, and afterwards in a speech, his 
command not to enter on the subject, couched in that 
arrogant tone of despotism which this absurd prince 
affected, 8 they presented a strong remonstrance against 
this inhibition ; claiming* "as an ancient, general, and 
undoubted right of parliament to debate freely all mat- 
ters which do properly concern the subject ; which 
freedom of debate being once foreclosed, the essence of 
the liberty of parliament is withal dissolved. For the 
judgment given by the exchequer, they take not on them 
to review it, but desire to know the reasons whereon it 
was grounded ; especially as it was generally appre- 
hended that the reasons of that judgment extended much 
farther, even to the utter ruin of the ancient liberty of 
this kingdom, and of the subjects' right of property in 
their lands and goods."' " The policy and constitution 

r Mr. Hakewill's speech, though long, Tracts, p. xxx.. &c. It seems to have 
will repay the diligent reader's trouble, been chiefly as to exportation of corn, 
as being a very luminous and masterly * Aikin's Memoirs of James 1., i. 350. 
statement of this great argument. State This speech justly gave offence. " The 
Trials, ii. 407. The extreme inferiority 21st of this present (May, 1610)," says 
of Bacon, who sustained the cause of a correspondent of sir Ralph Winwood, 
prerogative, must be apparent to every " he made another speech to both the 
one. Id. 345. Sir John Davis makes houses, but so little to their satisfaction 
somewhat a better defence; his argument that I hear it bred generally much dis- 
is, that the king may lay an embargo on comfort to see our monarchical power 
trade, so as to prevent it entirely, and and royal prerogative strained so high, 
consequently may annex conditions to it. and made so transcendent every way, that, 
Id. 399. But to this it was answered, if the practice should follow the positions, 
that the king can only lay a temporary we are not likely to leave to our successors 
embargo, for the sake of some public that freedom we received from our fore- 
good, not prohibit foreign trade alto- fathers ; nor make account of anything 
gether. we have longer than they list that 

As to the king's prerogative of restrain- govern." Winwood, iii. 175. Thetraces 

ing foreign trade, see extracts from of this discontent appear in short notes 

Hale's MS. Treatise de Jure Coronie, in of the debate. Journals, p. 430. 
Hargrave's Preface to Collection of Law t Journals, 431. 



James I. AGAINST IMPOSITIONS. 321 

of this your kingdom (they say) appropriates unto the 
kings of this realm, with the assent of the parliament, 
as well the sovereign power of making laws, as that of 
taxing, or imposing upon the subjects' goods or mer- 
chandises, as may not, without their consents, be altered 
or changed. This is the cause that the people of this 
kingdom, as they ever showed themselves faithful and 
loving to their kings, and ready to aid them in all their 
just occasions with voluntary contributions, so have they 
been ever careful to preserve their own liberties and 
rights when anything hath been done to prejudice or 
impeach the same. And therefore, when their princes, 
occasioned either by their wars or their over- great 
bounty, or by any other necessity, have without consent 
of parliament set impositions, either within the land, or 
upon commodities either exported or imported by the 
merchants, they have, in open parliament, complained 
of it, in that it was done without their consents ; and 
thereupon never failed to obtain a speedy and full redress, 
without any claim made by the kings, of any power or 
prerogative in that point. And though the law of pro- 
perty be original, and carefully preserved by the common 
laws of this realm, which are as ancient as the kingdom 
itself, yet these famous kings, for the better content- 
ment and assurance of their loving subjects, agreed that 
this old fundamental right should be further declared 
and established by act of parliament. Wherein it is 
provided that no such charges should ever be laid upon 
the people without their common consent, as may appear 
by sundry records of former times. We, therefore, your 
majesty's most humble commons assembled in parlia- 
ment, following the example of this worthy case of our 
ancestors, and out of a duty of those for whom we serve, 
finding that your majesty, without advice or consent of 
parliament, hath lately, in time of peace, set both greater 
impositions, and far more in number, than any your 
noble ancestors did ever in time of war, have, with all 
humility, presumed to present this most just and neces- 
sary petition unto your majesty, that all impositions set 
without the assent of parliament may be quite abolished 
and taken away; and that your majesty, in imitation 

» Journals, 431. 
VOL. I. Y 



322 DOCTRINE OF ABSOLUTISM Chap. VI. 

likewise of your noble progenitors, will be pleased that 
a law be made during this session of parliament, to 
declare that all impositions set or to be set upon your 
people, their goods or merchandises, save only by com- 
mon consent in parliament, are and shall be void." u They 
proceeded accordingly, after a pretty long time occupied 
in searching for precedents, to pass a bill taking away 
impositions ; which, as might be anticipated, did not 
obtain the concurrence of the upper house. 

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

It is not impossible that a man might adopt this theory 

u Somers Tracts, vol. ii. 159 ; in the taught by experience the necessity of 

Journals much shorter. government ; and that therefore they 

x These canons were published in chose some among themselves to order 

1690, from a copy belonging to bishop and rule the rest, giving them power and 

Overall, with Sancroft's imprimatur. The authority so to do ; and that consequently 

title-page runs in an odd expression: all civil power, jurisdiction, and authority 

— ' Bishop Overall's Convocation - Book was first derived from the people and dis- 

concerning the Government of God's ordered multitude, or either is originally 

Catholic Church and the Kingdoms of still in them, or else is deduced by their 

the whole World.' The second canon consent naturally from them, and is not 

is as follows : — " If any man shall affirm God's ordinance, originally descending 

that men at the first ran up and down from him and depending upon him, he 

ju woods and fields, &c, until they were doth greatly err." P. 3. 



James I. INCULCATED BY CLERGY. 323 

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

The real aim of the clergy in thus enormously en- 
hancing the pretensions of the crown was to gain its 
sanction and support for their own. Schemes of eccle- 
siastical jurisdiction, hardly less extensive than had 
warmed the imagination of Becket, now floated before 
the eyes of his successor Bancroft. He had fallen indeed 
upon evil days, and perfect independence on the tem- 
poral magistrate could no longer be attempted ; but he 
acted upon the refined policy of making the royal supre- 
macy over the church, which he was obliged to acknow- 
ledge, and professed to exaggerate, the very instrument 
of its independence upon the law. The favourite object 
of the bishops in this age was to render their eccle- 
siastical jurisdiction, no part of which had been curtailed 
in our hasty reformation, as unrestrained as possible by 
the courts of law. These had been wont, down from 
the reign of Henry II., to grant writs of prohibition 
whenever the spiritual courts transgressed their proper 
limits ; to the great benefit of the subject, who would 
otherwise have lost his birthright of the common law, 
and been exposed to the defective, not to say iniquitous 
and corrupt, procedure of the ecclesiastical tribunals. 
But the civilians, supported by the prelates, loudly com- 
plained of these prohibitions, which seem to have been 
much more frequent in the latter years of Elizabeth and 

y 2 



324 ARTICULI CLERI. Chap. VL 

the reign of James than in any other period. Bancroft 
Articuii accordingly presented to the star-chamber, in 
cieri. 1605, a series of petitions in the name of the 
clergy, which lord Coke has denominated Articuii Cleri, 
by analogy to some similar representations of that order 
under Edward 11/ In these it was complained that the 
courts of law interfered by continual prohibitions with a 
jurisdiction as established and as much derived from the 
king as their own, either in cases which were clearly 
within that jurisdiction's limits, or on the slightest sug- 
gestion of some matter belonging to the temporal court. 
It was hinted that the whole course of granting prohibi- 
tions was an encroachment of the king's bench and com- 
mon pleas, and that they could regularly issue only out 
of chancery. To each of these articles of complaint, 
extending to twenty-five, the judges made separate an- 
swers, in a rough and, some might say, a rude style, but 
pointed and much to the purpose, vindicating in every 
instance their right to take cognizance of every colla- 
teral matter springing out of an ecclesiastical suit, and 
repelling the attack upon their power to issue prohibi- 
tions as a strange presumption. Nothing was done, nor, 
thanks to the firmness of the judges, could be done, by 
the council in this respect. For the clergy had begun 
by advancing that the king's authority was sufficient to 
reform what was amiss in any of his own courts, all 
jurisdiction, spiritual and temporal, being annexed to 
his crown. But it was positively and repeatedly denied, 
in reply, that anything less than an act of parliament 
could alter the course of justice established by law. 
This effectually silenced the archbishop, who knew how 
little he had to hope from the commons. By the pre- 
tensions made for the church in this affair he exasperated 
the judges, who had been quite sufficiently disposed to 
second all rigorous measures against the puritan minis- 
ters, and aggravated that jealousy of the ecclesiastical 
courts which the common lawyers had long entertained. 
An opportunity was soon given to those who disliked 
Co weirs the civilians, that is, not only to the common 
interpreter, lawyers, but to all the patriots and puritans 

y Coke's 2nd Institute, 601. Collier, 1611 (Strype's Life of Whitgift, Append. 
688. State Trials, ii. 131. See, too, an 227), wherein he inveighs against the 
angry letter of Bancroft, written about common lawyers and the parliament. 



James I. COWELL'S INTERPRETER. 325 

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

Such monstrous positions from the mouth of a man of 
learning and conspicuous in his profession, who was 
surmised to have been instigated as well as patronised 
by the archbishop, and of whose book the king was 
reported to have spoken in terms of eulogy, gave very 



* Cowell's Interpreter, or Law Die- very invidious towards the common law- 

tionary; edit. 1607. These passages are yers, treating such restraints upon the 

expunged in the later editions of this ecclesiastical jurisdiction as necessary in 

useful book. What the author says of former ages, but now become useless since 

the writ of prohibition, and the statutes the annexation of the supremacy to :he 

of praemunire, under these words, was crown. 



326 DEFICIENCY OF REVENUE. Chap. VI. 

just scandal to the house of commons. They solicited 
and obtained a conference with the lords, which the 
attorney-general, sir Francis Bacon, managed on the 
part of the lower house ; a remarkable proof of his 
adroitness and pliancy. James now discovered that it 
was necessary to sacrifice this too unguarded advocate 
of prerogative : Cowell's book was suppressed by pro- 
clamation, for which the commons returned thanks, 
with great joy at their victory." 

It is the evident policy of every administration, in 
dealing with the house of commons, to humour them in 
everything that touches their pride and tenaciousness of 
privilege, never attempting to protect any one who 
incurs their displeasure by want of respect. This seems 
to have been understood by the earl of Salisbury, the 
first English minister who, having long sat in the lower 
house, had become skilful in those arts of management 
which his successors have always reckoned so essential 
a part of their mystery. He wanted a considerable sum 
of money to defray the king's debts, which, on his 
coming into the office of lord treasurer after lord Buck- 
hurst's death, he had found to amount to 1,300,000Z., 
about one-third of which was still undischarged. The 
ordinary expense also surpassed the revenue by 81,000?. 
It was impossible that this could continue without 
involving the crown in such embarrassments as would 
leave it wholly at the mercy of parliament. Cecil 
therefore devised the scheme of obtaining a perpetual 
yearly revenue of 200,000/., to be granted once for all 
by parliament ; and, the better to incline the house to 
this high and extraordinary demand, he promised in the 
king's name to give all the redress and satisfaction in 
his power for any grievances they might bring forward. 11 

This offer on the part of government seemed to make 
an opening for a prosperous adjustment of the differ- 
ences which had subsisted ever since the king's acces- 

a Commons' Journals, 339, and after- latter makes a false and disingenuous 

wards to 415. The authors of the Par- excuse for Cowell. Vol. iii. p. 798. 

liamentary History say there is no fur- Several passages concerning this affair 

ther mention of the business after the occur in Winwood's Memorials, to which 

conference ; overlooking the most import- I refer the curious reader. Vol. iii. pp. 

ant circumstance, the king's proclamation 125, 129, 131, 136, 137, 145. 

suppressing the book, which yet is men- b Winwood, iii. 123. 
tioned by Rapin and Carte, though the 



James I. RENEWED COMPLAINTS OF COMMONS. 327 

sion. The commons, accordingly, postponing the busi- 
ness of a subsidy, to which the courtiers wished 
to give priority, brought forward a host of their complaints 
accustomed grievances in ecclesiastical and tern- of the 

i mi j.- i commons. 

poral concerns. The most essential was un- 
doubtedly that of impositions, which they sent up a bill to 
the lords, as above mentioned, to take away. They next 
complained of the ecclesiastical high commission court, 
which took upon itself to fine and imprison, powers not 
belonging to their jurisdiction, and passed sentences 
without appeal, interfering frequently with civil rights, 
and in all its procedure neglecting the rules and precau- 
tions of the common law. They dwelt on the late 
abuse of proclamations assuming the character of laws. 
" Amongst many other points of happiness and freedom," 
it is said, " which your majesty's subjects of this king- 
dom have enjoyed under your royal progenitors, kings 
and queens of this realm, there is none which they have 
accounted more dear and precious than this, to be 
guided and governed by the certain rule of the law, 
which giveth both to the head and members that which 
of right belongeth to them, and not by any uncertain or 
arbitrary form of government, which, as it hath pro- 
ceeded from the original good constitution and tempera- 
ture of this estate, so hath it been the principal means 
of upholding the same, in such sort as that their kings 
have been just, beloved, happy, and glorious, and the 
kingdom itself peaceable, flourishing, and durable so 
many ages. And the effect, as well of the contentment 
that the subjects of this kingdom have taken in this 
form of government, as also of the love, respect, and 
duty which they have by reason of the same rendered 
unto their princes, may appear in this, that they have, 
as occasion hath required, yielded more extraordinary 
and voluntary contribution to assist their kings than the 
subjects of any other known kingdom whatsoever. Out 
of this root hath grown the indubitable right of the 
people of this kingdom, not to be made subject to any 
punishment that shall extend to their lives, lands, 
bodies, or goods, other than such as are ordained by the 
common laws of this land, or the statutes made by their 
common consent in parliament. Nevertheless, it is ap- 
parent, both that proclamations have been of late years 



328 COMPLAINTS OF THE COMMONS. Chap. VI. 

much more frequent than heretofore, and that they are 
extended, not only to the liberty, but also to the goods, 
inheritances, and livelihood of men; some of them 
tending to alter some points of the law, and make a 
new ; other some made, shortly after a session of parlia- 
ment, for matter directly rejected in the same session ; 
other appointing punishments to be inflicted before 
lawful trial and conviction; some containing penalties 
in form of penal statutes ; some referring the punishment 
of offenders to courts of arbitrary discretion, which have 
laid heavy and grievous censures upon the delinquents ; 
some, as the proclamation for starch, accompanied with 
letters commanding inquiry to be made against the trans- 
gressors at the quarter-sessions ; and some vouching for- 
mer proclamations to countenance and warrant the later, 
as by a catalogue here underwritten more particularly ap- 
peareth. By reason whereof there is a general fear con* 
ceived and spread amongst your majesty's people, that 
proclamations will, by degrees, grow up and increase to 
the strength and nature of laws ; whereby not only that 
ancient happiness, freedom, will be much blemished (if 
not quite taken away), which their ancestors have so long 
enjoyed ; but the same may also (in process of time) bring 
a new form of arbitrary government upon the realm ; and 
this their fear is the more increased by occasion of certain 
books lately published, which ascribe a greater power to 
proclamations than heretofore had been conceived to be- 
long unto them ; as also of the care taken to reduce all the 
proclamations made since your majesty's reign into one 
volume, and to print them in such form as acts of par- 
liament formerly have been, and still are used to be, 
which seemeth to imply a purpose to give them more re- 
putation and more establishment than heretofore they 
have had." c 

They proceed, after a list of these illegal proclama- 
tions, to enumerate other grievances, such as the delay 
of courts of law in granting writs of prohibition and 
habeas corpus, the jurisdiction of the council of Wales 
over the four bordering shires of Gloucester, Worcester, 
Hereford, and Salop, d some patents of monopolies, and 

c Somers Tracts, ii. 162. State Trials, was erected by statute 34 H. 8, c. 26, for 

ji. 519. that principality and Its marches, with 

d The court of the council of Wales authority to determine such causes and 



James I. THE FEUDAL REVENUE. 329 

a tax tinder the name of a licence recently set upon vic- 
tuallers. The king answered these remonstrances with 
civility, making, as usual, no concession with respect 
to the ecclesiastical commission, and evading some of 
their other requests ; but promising that his proclama- 
tions should go no farther than was warranted by law, 
and that the royal licences to victuallers should be re- 
voked. 

It appears that the commons, deeming these enu- 
merated abuses contrary to law, were unwilling to 
chaffer with the crown for the restitution of their actual 
rights. There were, however, parts of the prerogative 
which they could not dispute, though galled by the 
burthen — the incidents of feudal tenure and purveyance. 
A negotiation was accordingly commenced and carried 
on for some time with the court for abolishing Negotlat | 0n 
both these, or at least the former. The king, for giving 
though he refused to part with tenure by " e udaf 
knight's service, which he thought connected revenue. 
with the honour of the monarchy, was induced, with 
some real or pretended reluctance, to give up its lucrative 
incidents, relief, primer seisin, and wardship, as well as 
the right of purveyance. But material difficulties re- 
curred in the prosecution of this treaty. Some were 
apprehensive that the validity of a statute cutting off 
such ancient branches of prerogative might hereafter be 
called in question, especially if the root from which 
they sprung, tenure in capite, should still remain. The 
king's demands, too, seemed exorbitant. He asked 

matters as should be assigned to them been." Fourth Inst 242. An elaborate 
by the king, " as heretofore hath been argument in defence of the jurisdiction 
accustomed and used ;" which implies a may be found in Bacon, ii. 122. And 
previous existence of some such juris- there are many papers on this subject 
diction. It was pretended that the four in Cotton MSS. Vitellius, C. i. The 
counties of Hereford, Worcester, Glou- complaints of this enactment bad begun 
cester, and Salop were included within in the time of Elizabeth. It was alleged 
their authority as marches of Wales, that the four counties had been reduced 
This was controverted in the reign of from a very disorderly state to tranquil- 
James by the inhabitants of these coun- lity by means of the council's jurisdic- 
ties ; and on reference to the twelve tion. But if this were true, it did not 
judges, according to lord Coke, it was furnish a reason for continuing to ex- 
resolved that they were ancient English elude them from the general privileges 
shires, and not within the jurisdiction of of the common law, after the necessity 
the council of Wales ; " and yet," he sub- had ceased. The king, however, was 
joins, " the commission was not after determined not to concede this point, 
reformed in all points as it ought to have Carle, iii. 794. 



330 THE FEUDAL REVENUE. Chap. VI. 

200,000?. as a yearly revenue over and above 100,000/., 
at which his wardships were valued, and which the 
commons were content to give. After some days' pause 
upon this proposition, they represented to the lords, 
with whom, through committees of conference, the 
whole matter had been discussed, that, if such a sum 
were to be levied on those only who had lands subject 
to wardship, it would be a burthen they could not en- 
dure ; and that, if it were imposed equally on the king- 
dom, it would cause more offence and commotion in 
the people than they could risk. After a good deal of 
haggling, Salisbury delivered the king's final deter- 
mination to accept of 200,000?. per annum, which the 
commons voted to grant as a full composition for abolish- 
ing the right of wardship and dissolving the court that 
managed it, and for taking away all purveyance ; with 
some further concessions, and particularly that the 
king's claim to lands should be bound by sixty years' 
prescription. Two points yet remained, of no small 
moment ; namely, by what assurance they could secure 
themselves against the king's prerogative, so often held 
up by court lawyers as something uncontrollable by 
statute, and by what means so great an imposition should 
be levied ; but the consideration of these was reserved 
for the ensuing session, which was to take place in 
October. 6 They were prorogued in July till that month, 
having previously granted a subsidy for the king's im- 
mediate exigencies. On their meeting again, the lords 
began the business by requesting a conference with the 
other house about the proposed contract. But it appeared 
that the commons had lost their disposition to comply. 
Time had been given them to calculate the disproportion 
of the terms, and the perpetual burthen that lands held 
by knights' service must endtire. They had reflected, 
too, on the king's prodigal humour, the rapacity of the 
Scots in his service, and the probability that this addi- 
tional revenue would be wasted without sustaining the 
national honour, or preventing future applications for 
money. They saw that, after all the specious promises 
by which they had been led on, no redress was to be 
expected as to those grievances they had most at heart ; 

e Commons' Journals for 1610, passim. Hist 1124, et post. Bacon, i. 676. Win- 
Lords' Journals, 7 th May, et post. Pari, wood, iii. 119. et post. 



James I. CHARACTER OF JAMES. 331 

that the ecclesiastical courts would not be suffered to 
lose a jot of their jurisdiction ; that illegal customs were 
still to be levied at the outports; that proclamations 
were still to be enforced like acts of parliament. D . . „ 
Great coldness accordingly was displayed in ofpariia- 
their proceedings, and in a short time this dis- ment- 
tinguished parliament, after sitting nearly seven years, 
was dissolved by proclamation/ 

It was now perhaps too late for the king, by any 
reform or concession, to regain that public character 
esteem which he had forfeited. Deceived by of James. 
an overweening opinion of his own learning, which was 
not inconsiderable, of his general abilities, which were 
far from contemptible, and of his capacity for govern- 
ment, which was very small, and confirmed in this 
delusion by the disgraceful flattery of his courtiers and 
bishops, he had wholly overlooked the real difficulties 
of his position — as a foreigner, rather distantly con- 
nected with the royal stock, and as a native of a hostile 
and hateful kingdom come to succeed the most renowned 
of sovereigns, and to grasp a sceptre which deep policy 
and long experience had taught her admirably to 
wield. 8 The people were proud of martial glory ; he 
spoke only of the blessing of the peacemakers : they 
abhorred the court of Spain ; he sought its friendship : 
they asked indulgence for scrupulous consciences ; he 
would bear no deviation from conformity : they writhed 
under the yoke of the bishops, whose power he thought 
necessary to his own — they were animated by a perse- 
cuting temper towards the catholics ; he was averse to 

f It appears by a letter of the king, noyed our health, wounded our reputa- 

in Murden's State Papers, p. 813, that tlon, emboldened all ill-natured people, 

some indecent allusions to himself in the encroached upon many of our privileges, 

house of commons had irritated him: and plagued our people with their delays. 

— " Wherein we have misbehaved our- It only resteth now that you labour all 

selves we know not, nor we can never yet you can to do that you think best to the 

learn ; but sure we are we may say with repairing of our estate." 

Bellarmin in his book, that in all the 8 "Your queen," says lord Thomas 

lower houses these seven years past, espe- Howard, in a letter, "did talk of her 

cially these two last sessions, Ego pun- subjects' love and good affection, and in 

gor, ego carpor. Our fame and actions good truth she aimed well; our king 

have been tossed like tennis-balls among talketh of his subjects' fear and subjec- 

them, and all that spite and malice durst tion, and herein I think he doth well too, 

do to disgrace and inflame us hath been as long as it holdeth good." Nugaj An- 

used. To be short, this lower house by tiquae, i. 395. 
their behaviour have perilled and an« 



332 DEATH OF SALISBURY. Chap. VI. 

extreme rigour : they had been used to the utmost fru- 
gality in dispensing the public treasure ; he squandered 
it on unworthy favourites : they had seen at least 
exterior decency of morals prevail in the queen's court ; 
they now heard only of its dissoluteness and extrava- 
gance : h they had imbibed an exclusive fondness for the 
common law as the source of their liberties and privi- 
leges ; his churchmen and courtiers, but none more than 
himself, talked of absolute power and the imprescriptible 
rights of monarchy.' 

James lost in 1611 his son prince Henry, and in 1612 
Death f ^e ^ 0T ^ t reasurer Salisbury. He showed little 
lord regret for the former, whose high spirit and 

Salisbury. gj. ea t popularity afforded a mortifying contrast, 
especially as the young prince had not taken sufficient 
pains to disguise his contempt for his father. k Salisbury 
was a very able man, to whom, perhaps, his contem- 
poraries did some injustice. The ministers of weak and 
wilful monarchs are made answerable for the mischiefs 
they are compelled to suffer, and gain no credit for 
those which they prevent. Cecil had made personal ene- 
mies of those who had loved Essex or admired Ealeigh, 
as well as those who looked invidiously on his elevation. 
It was believed that the desire shown by the house of 
commons to abolish the feudal wardships proceeded in 
a great measure from the circumstance that this ob- 
noxious minister was master of the court of wards, an 

h The court of James I. was incom- ject to dispute what a king can do, or say 
parably the most disgraceful scene of that a king cannot do this or that." 
profligacy which this country has ever King James's Works, p. 557. 
witnessed; equal to that of Charles II. It is probable that his familiar con- 
in the laxity of female virtue, and with- versation was full of this rhodomontade, 
out any sort of parallel in some other disgusting and contemptible from so 
respects. Gross drunkenness is imputed wretched a pedant, as well as offensive 
even to some of the ladies who acted in to the indignant ears of those who knew 
the court pageants, Nugse Antique, i. and valued their liberties. The story of 
348, which Mr. Gifford, who seems ab- bishops Neile and Andrews is far too 
solutely enraptured with this age and its trite for repetition, 
manners, might as well have remem- k Carte, iii. 747. Birch's Life of P. 
bered. Life of Ben Jonson, p. 231, &c Henry, 405. Rochester, three days after, 
The king's prodigality is notorious. directed sir Thomas Edmondes at Paris 

i "It is atheism and blasphemy," he to commence a negotiation for a marriage 

says, in a speech made in the star-cham- between prince Charles and the second 

ber, 1616, " to dispute what God can do; daughter of the late king of France ; but 

good Christians content themselves with the ambassador had more sense of de- 

his will revealed in his word : so it is cency, and declined to enter on such an 

presumption and high contempt in a sub- affair at that moment. 



James I. FOREIGN POLITICS OF JAMES. 333 

office both lucrative and productive of much influence. 
But he came into the scheme of abolishing it 
with a readiness that did him credit. His chief p^u^of 
praise, however, was his management of conti- thegovern- 
nental relations. The only minister of James's 
cabinet who had been trained in the councils of Eliza- 
beth, he retained some of her jealousy of Spain and of 
her regard for the protestant interests. The court of 
Madrid, aware both of the king's pusillanimity and of 
his favourable dispositions, affected a tone in the con- 
ferences held in 1604 about a treaty of peace which 
Elizabeth would have resented in a very different 
manner." 1 On this occasion he not only deserted the 
United Provinces, but gave hopes to Spain that he 
might, if they persevered in their obstinacy, take part 
against them. Nor have I any doubt that his blind 
attachment to that power would have precipitated him 
into a ruinous connexion, if Cecil's wisdom had not 
influenced his councils. During this minister's life our 
foreign politics seem to have been conducted with as 
much firmness and prudence as his master's temper 
would allow ; the mediation of England was of consider- 
able service in bringing about the great truce of twelve 

m Winwood, vol. iL Carte, iii. 149. the catalogue of the Lansdowne manu- 
Watson's Hist of Philip III., Appendix, scripts in the Museum has thought fit not 
In some passages of this negotiation Cecil only to charge sir Michael Hicks with 
may appear not wholly to have deserved venality, but to add, — " It is certain that 
the character I have given him for adher- articles among these papers contribute to 
ing to Elizabeth's principles of policy, justify very strong suspicions that neither 
But he was placed in a difficult position, of the secretary's masters [lord Burleigh 
not feeling himself secure of the king's and lord Salisbury] was altogether inno- 
favour, which, notwithstanding his great cent on the score of corruption." Lansd. 
previous services, that capricious prince, Cat. vol. xci. p. 45. This is much too 
for the first year after his accession, strong an accusation to be brought for- 
rather sparingly afforded ; as appears ward without more proof than appears, 
from the Memoirs of Sully, i. 14, and It is absurd to mention presents of fat 
Nugae Antiquae, i. 345. It may be said bucks to men in power as bribes ; and 
that Cecil was as little Spanish, just as rather more so to charge a man with 
Walpole was as little Hanoverian, as the being corrupted because an attempt is 
partialities of their respective sovereigns made to corrupt him, as the catalogue- 
would permit, though too much so in maker has done in this place. I would 
appearance for their own reputation. It not offend this respectable gentleman ; 
Is hardly necessary to observe that James but by referring to many of the Lans- 
and the kingdom were chiefly indebted downe manuscripts I am enabled to say 
to Cecil for the tranquillity that attended that he has travelled frequently out of his 
the accession of the former to the throne, province, and substituted his conjectures 
I will take this opportunity of noticing for an analysis or abstract of the docu- 
that the learned and worthy compiler of ment before him. 



334 COKE'S ALIENATION Chap. VI. 

years between Spain and Holland in 1609; and in the 
dispute which sprang up soon afterwards concerning the 
succession to the duchies of Cleves and Juliers, a dispute 
which threatened to mingle in arms the catholic and pro- 
testant parties throughout Europe," our councils were 
full of a vigour and promptitude unusual in this reign, 
nor did anything but the assassination of Henry IV. 
prevent the appearance of an English army in the 
Netherlands. It must at least be confessed that the 
king's affairs, both at home and abroad, were far worse 
conducted after the death of the Earl of Salisbury than 
before. 

The administration found an important disadvantage. 

about this time, in a sort of defection of sir 
^enato k n' s Edward Coke (more usually called lord Coke), 
from the chief -justice of the king's bench, from the side 

of prerogative. He was a man of strong though 
narrow intellect; confessedly the greatest master of 
English law that had ever appeared, but proud and 
overbearing, a flatterer and tool of the court till he had 
obtained his ends, and odious to the nation for the brutal 
manner in which, as attorney-general, he had behaved 
towards sir Walter Raleigh on his trial. In raising him 
to the post of chief-justice the council had of course 
relied on finding his unfathomable stores of precedent 
subservient to their purposes. But, soon after his pro- 
motion, Coke, from various causes, began to steer a more 
independent course. He was little formed to endure a 
competitor in his own profession, and lived on ill terms 
both with the lord chancellor Egerton, and with the 
attorney-general, sir Francis Bacon. The latter had 
long been his rival and enemy. Discountenanced by 

n A great part of Winwood's third elector of Brandenburg, the chief pro- 
volume relates to this business, which, as testant competitor, 
is well known, attracted a prodigious ° Winwood, vols. ii. and iii. passim, 
degree of attention throughout Europe. Birch, that accurate master of this part 
The question, as Winwood wrote to Salis- of English history, has done justice to 
bury, was " not of the succession of Salisbury's character. Negotiations of 
Cleves and Juliers, but whether the house Edmondes, p. 347. Miss Aikin, looking 
of Austria and the church of Rome, both to his want of constitutional principle, is 
now on the wane, shall recover their more unfavourable, and in that respect 
lustre and greatness in these parts of justly: but what statesman of that age 
Europe." P. 378. James wished to have was ready to admit the new creed of par- 
the right referred to his arbitration, and liamentary control over the executive 
would have decided in favour of the government? Memoirs of James, i. 395. 



James I. FROM THE COURT. 335 

Elizabeth, who, against the importunity of Essex, had 
raised Coke over his head, that great and aspiring genius 
was now high in the king's favour. The chief -justice 
affected to look down on one as inferior to him in know- 
ledge of our municipal law, as he was superior in all 
other learning and in all the philosophy of jurisprudence. 
And the mutual enmity of these illustrious men never 
ceased till each in his turn satiated his revenge by 
the other's fall. Coke was also much offended by the 
attempts of the bishops to emancipate their ecclesiastical 
courts from the civil jurisdiction. I have already men- 
tioned the peremptory tone in which he repelled Ban- 
croft's Articuli Cleri. But as the king and some of the 
council rather favoured these episcopal pretensions, they 
were troubled by what they deemed his obstinacy, and 
discovered more and more that they had to deal with a 
most impracticable spirit. 

It would be invidious to exclude from the motives 
that altered lord Coke's behaviour in matters of prero- 
gative his real affection for the laws of the land, which 
novel systems, broached by the churchmen and civilians, 
threatened to subvert.* In Bates's case, which seems to 
have come in some shape extra-judicially before him, he 
had delivered an opinion in favour of the king's right to 
impose at the outports ; but so cautiously guarded, and 
bottomed on such different grounds from those taken by 
the barons of the exchequer, that it could not be cited 
in favour of any fresh encroachments.* 1 He now per- 

P " On Sunday, before the king's going admiralty] was as good a man as Coke ; 

to Newmarket (which was Sunday last my lord Coke having then, by way of 

was a se'nnight), my lord Coke and all exception, used some speech against sir 

the judges of the common law were before Thomas Crompton. Had not my lord 

his majesty to answer some complaints treasurer, most humbly on his knee, used 

made by the civil lawyers for the general many good words to pacify his majesty, 

granting of prohibitions. I heard that and to excuse that which had been spoken, 

the lord Coke, amongst other offensive it was thought his highness would have 

speech, should say to his majesty that his been much more offended. Intheconclu- 

highness was defended by his laws. At sion, his majesty, by means of my lord 

which saying, with other speech then treasurer, was well pacified, and gave a 

used by the lord Coke, his majesty was gracious countenance to all the other 

very much offended, and told him he judges, and said he would maintain the 

spoke foolishly, and said that he was not common law." Lodge, iii. 364. This 

defended by his laws, but by God; and letter is dated 25th November, 1608, 

so gave the lord Coke, in other words, a which shows how early Coke had begun 

very sharp reprehension, both for that to give offence by his zeal for the law. 
and other things ; and withal told him 1 12 Reports. In his Second Institute, 

that sir Thomas Crompton [judge of the p. 57, written a good deal later, he speaks 



336 ILLEGAL PROCLAMATIONS. Chap. VI. 

formed a great service to his country. The practice of 
illegal pro- issuing proclamations, by way of temporary 
ciamations. regulation indeed, but interfering with the 
subject's liberty, in cases unprovided for by parliament, 
had grown still more usual than under Elizabeth. Coke 
was sent for to attend some of the council, who might 
perhaps have reason to conjecture his sentiments, and it 
was demanded whether the king, by his proclamation, 
might prohibit new buildings about London, and whether 
he might prohibit the making of starch from wheat. 
This was during the session of parliament in 1610, and 
with a view to what answer the king should make to 
the commons' remonstrance against these proclamations. 
Coke replied that it was a matter of great importance, 
on which he would confer with his brethren. "The 
chancellor said that every precedent had first a com- 
mencement, and he would advise the judges to maintain 
the power and prerogative of the king; and in cases 
wherein there is no authority and precedent, to leave it 
to the king to order in it according to his wisdom and 
for the good of his subjects, or otherwise the king would 
be no more than the duke of Venice ; and that the king 
was so much restrained in his prerogative that it was to 
be feared the bonds would be broken. And the lord 
privy-seal (Northampton) said that the physician was 
not always bound to a precedent, but to apply his medi- 
cine according to the quality of the disease ; and all 
concluded that it should be necessary at that time to 
confirm the king's prerogative with our opinions, al- 
though that there were not any former precedent or 
authority in law, for every precedent ought to have a 
commencement. To which I answered, that true it is 
that every precedent ought to have a commencement ; 
but, when authority and precedent is wanting, there 
is need of great consideration before that anything of 
novelty shall be established, and to provide that this be 
not against the law of the land ; for I said that the king 
cannot change any part of the common law, nor create 
any offence by his proclamation which was not an 
offence before, without parliament. But at this time I 
only desired to have a time of consultation and confer- 
in a very different manner of Bates's court of exchequer to be contrary to 
case, and declares the judgment of the law. 



James I. ILLEGAL PROCLAMATIONS. 337 

ence with my brothers." This was agreed to by the 
council and three judges, besides Coke, appointed to 
consider it. They resolved that the king, by his pro- 
clamation, cannot create any offence which was not one 
before ; for then he might alter the law of the land in a 
high point ; for if he may create an offence where none 
is, upon that ensues fine and imprisonment. It was 
also resolved that the king hath no prerogative but what 
the law of the land allows him. But the king, for the 
prevention of offences, may by proclamation admonish 
all his subjects that they keep the laws and do not 
offend them, upon punishment to be inflicted by the 
law ; and the neglect of such proclamation, Coke says, 
aggravates the offence. Lastly, they resolved that, if an 
offence be not punishable in the star-chamber, the pro- 
hibition of it by proclamation cannot make it so. After 
this resolution, the report goes on to remark, no pro- 
clamation imposing fine and imprisonment was made.* 

By the abrupt dissolution of parliament James was 
left nearly in the same necessity as before : their subsidy 
being by no means sufficient to defray his ex- M re _ 
penses, far less to discharge bis debts. He had sorted to in 
frequently betaken himself to the usual re- °^[ j£ e 
source of applying to private subjects, espe- meeting of 
cially rich merchants, for loans of money.* 

* 12 Reports. There were, however, had caused, redounded to their honour, 

several proclamations afterwards to forbid The king's comparison of them to ships 

building within two miles of London, ex- in a river and in the sea is well known, 

cept on old foundations, and in that case Still, in a constitutional point of view, we 

only with brick or stone, under penalty may be startled at proclamations com- 

of being proceeded against by the attor- manding them to return to their country 

ney-general in the star-chamber. Rymer, houses, and maintain hospitality, on 

xvii. 107 (161H), 144 (1619), 607 (1624). pain of condign punishment. Rymer, 

London nevertheless increased rapidly, xvi. 517 (1604); xvii. 417 (1622), 632 

which was by means of licences to build ; (1 624). 

the prohibition being in this, as in many I neglected, in the first chapter, the 

other cases, enacted chiefly for the sake reference I had made to an important 

of the dispensations. dictum of the judges in the reign of Mary, 

James made use of proclamations to which is decisive as to the legal character 

infringe personal liberty in another re- of proclamations even in the midst of the 

spect. He disliked to see any country Tndor period. "The king, it is said, may 

gentleman come up to London, where, it make a proclamation, quoad terrorem 

must be confessed, if we trust to what populi, to put them in fear of his dis- 

those proclamations assert and the me- pleasure, but not to impose any fine, for- 

nioirs of the age confirm, neither their feiture, or imprisonment ; for no procla- 

own behaviour, nor that of their wives mation can make a new law, but only 

and daughters, who took the worst means confirm and ratify an ancient one." Dali- 

of repairing the ruin their extravagance sou's Reports, 20. 

VOL. I. Z 



338 ATTEMPTS TO RAISE MONEY. Chap. VI. 

These loans, which bore no interest, and for the re- 
payment of which there was no security, disturbed the 
prudent citizens, especially as the council used to solicit 
them with a degree of importunity at least bordering on 
compulsion. The house of commons had in the last 
session requested that no one should be bound to lend 
money to the king against his will. The king had 
answered that he allowed not of any precedents from the 
time of usurping or decaying princes, or people too bold 
and wanton ; that he desired not to govern in that com- 
monwealth where the people should be assured of every- 
thing and hope for nothing, nor would he leave to pos- 
terity such a mark of weakness on his reign ; yet, in the 
matter of loans, he would refuse no reasonable excuse.' 
Forced loans or benevolences were directly prohibited 
by an act of Eichard III., whose laws, however the court 
might sometimes throw a slur upon his usurpation, had 
always been in the statute-book. After the dissolution 
of 1610, James attempted as usual to obtain loans; but 
the merchants, grown bolder with the spirit of the times, 
refused him the accommodation." He had recourse to 
another method of raising money, unprecedented, I 
believe, before his reign, though long practised in 
France, the sale of honours. He sold several peerages 
for considerable sums, and created a new order of here- 
ditary knights, called baronets, who paid 1000Z. each for 
their patents.* 

Such resources, however, being evidently insufficient 
and temporary, it was almost indispensable to try once 
more the temper of a parliament. This was strongly 
urged by Bacon, whose fertility of invention rendered 
him constitutionally sanguine of success. He submitted 
to the king that there were expedients for more judi- 
ciously managing a house of commons, than Cecil, upon 
whom he was too willing to throw blame, had done with 

» Winwood, iii. 193. it seems) to receive knighthood, or to 
u Carte, iii. 805. pay a composition. Rymer, xvi. 530. 
x The number of these was intended to The object of this was of course to raise 
be two hundred, but only ninety-three money from those who thought the ho- 
patents were sold in the first six years, nour troublesome and expensive, but 
Lingard, ix. 203, from Somers Tracts, such as chose to appear could not be re- 
in the first part of his reign he had fused ; and this accounts for his having 
availed himself of an old feudal resource, made many hundred knights in the first 
calling on all who held iol. a year in year of his reign. Harris's Life of 
chivalry (whether of the crown or not, as James, 69. 



James I. UNDERTAKERS. 339 

the last ; that some of those who had been most forward in 
opposing were now won over, such as Neville, Yelverton, 
Hyde, Crew, Dudley Digges ; that much might he done 
by forethought towards filling the house with well- 
affected persons, winning or blinding the lawyers, 
whom he calls " the literse vocales of the house," and 
drawing the chief constituent bodies of the assembly, 
the country gentlemen, the merchants, the courtiers, to 
act for the king's advantage ; that it would be expedient 
to tender voluntarily certain graces and modifications of 
the king's prerogative, such as might with smallest in- 
jury be conceded, lest they should be first demanded, 
and in order to save more important points/ This advice 
was seconded by sir Henry Neville, an ambitious man, 
who had narrowly escaped in the queen's time for having 
tampered in Essex's conspiracy, and had much promoted 
the opposition in the late parliament, but was now seek- 
ing the post of secretary of state. He advised the king, 
in a very sensible memorial, to consider what had been 
demanded and what had been promised in the last 
session, granting the more reasonable of the commons' 
requests, and performing all his own promises ; to avoid 
any speech likely to excite irritation ; and to seem con- 
fident of the parliament's good affections, not waiting to 
be pressed for what he meant to do. z Neville, and others 
who, like him, professed to understand the temper of the 
commons, and to facilitate the king's dealings under- 
with them, were called undertakers.* This cir- tokev s. 
cumstance, like several others in the present reign, is 
curious, as it shows the rise of a systematic parliamen- 
tary influence, which was one day to become the main- 
spring of government. 

Neville, however, and his associates, had deceived the 
courtiers with promises they could not realise. It was 
resolved to announce certain intended graces in the 
speech from the throne : that is, to declare the king's 
readiness to pass bills that might remedy some grievances 
and retrench a part of his prerogative. These proffered 
amendments of the law, though eleven in number, failed 
altogether of giving the content that had been fully ex- 
pected. Except the repeal of a strange act of Henry 
VIII., allowing the king to make such laws as he should 

y MS. Penes autorem. * Carte, iv. 17. a Wilson, in Kennet, ii. 696. 

z 2 



340 PARLIAMENT OF 1614 Chap. VI. 

think fit for the principality of Wales without consent of 
parliament, 1 " none of them could perhaps be reckoned of 
any constitutional importance. In all domanial and fiscal 
causes, and wherever the private interests of the crown 
stood in competition with those of a subject, the former 
enjoyed enormous and superior advantages, whereof what 
is strictly called its prerogative was principally composed. 
The terms of prescription that bound other men's right, 
the rules of pleading and procedure established for the 
sake of truth and justice, did not in general oblige the 
king. It was not by doing away a very few of these 
invidious and oppressive distinctions that the crown 
could be allowed to keep on foot still more momentous 
Parliament abuses. The commons of 1614 accordingly 
of i6i4. W ent at once to the characteristic grievance of 
this reign, the customs at the outports. They had grown 
so confident in their cause by ransacking ancient records, 
that an unanimous vote passed against the king's right of 
imposition ; not that there were no courtiers in the house, 
but the cry was too obstreperous to be withstood. They 
demanded a conference on the subject with the lords, who 
preserved a kind of mediating neutrality throughout this 
reign. d In the course of their debate, Neyle, bishop of 
Lichfield, threw out some aspersion on the commons. 
They were immediately in a flame, and demanded repa- 
ration. This Neyle was a man of indifferent character, 
and very unpopular from the share he had taken in the 
earl of Essex's divorce, and from his severity towards the 
puritans ; nor did the house fail to comment upon all his 
faults in their debate. He had, however, the prudence 
to excuse himself ("with many tears," as the Lords' 
Journals inform us), denying the most offensive words 

b This act (34 H. VIII. c. 26) was re- and Sandys answered him very properly, 

pealed a few years afterwards. 21 J. I. <* The judges, having been called upon 

c 10. by the house of lords to deliver their 

c Commons' Journals, 466, 472, 481, opinions on the subject of impositions, 

486. Sir Henry Wotton at length mut- previous to the intended conference, re- 

terc-d something in favour of the prero- quested, by the mouth of chief justice 

gative of laying impositions, as belonging Coke, to be excused. This was probably a 

to hereditary, though not to elective, disappointment to lord chancellor Eger- 

princes. Id. 493. This silly argument ton, who moved to consult them, and 

is only worth notice as a proof what proceeded from Coke's dislike to him 

erroneous notions of government were and to the court. It induced the house 

sometimes imbibed from an intercourse to decline the conference. Lords' Jour- 

with foreign nations. Dudley Pigges nals, 23rd May. 



James I. REFUSE TO GRANT SUPPLIES. 341 

imputed to him; and the affair went no farther.' This 
ill-humour of the commons disconcerted those who had 
relied on the undertakers. But as the secret of these 
men had not been kept, their project considerably aggra- 
vated the prevailing discontent/ The king had posi- 
tively denied in his first speech that there were any 
such undertakers ; and Bacon, then attorney-general, 
laughed at the chimerical notion that private men 
should undertake for all the commons of England. 5 
That some persons, however, had obtained that name at 
court, and held out such promises, is at present out of 
doubt; and indeed the king, forgetful of his former 
denial, expressly confessed it on opening the session of 
1621. 

Amidst these heats little progress was made ; and no 
one took up the essential business of supply. The king 
at length sent a message requesting that a supply might 
be granted, with a threat of dissolving parliament unless 
it were done. But the days of intimidation were gone 
by. The house voted that they would first proceed with 
the business of impositions, and postpone supply till 
their grievances should be redressed. h Aware 
of the impossibility of conquering their reso- without 
lution, the king carried his measure into effect P ass , fa g * 

O _ SlUClG £LCt 

by a dissolution. 1 They had sat about two 
months, and, what is perhaps unprecedented in our his- 
tory, had not passed a single bill. James followed up 
this strong step by one still more vigorous. Several 
members, who had distinguished themselves by warm 
language against the government, were arrested after the 
dissolution, and kept for a short time in custody ; a mani- 
fest violation of that freedom of speech, without which no 
assembly can be independent, and which is the stipulated 
privilege of the house of commons. 1 



c Lords' Journals, May 31. Commons' of the law of nations. 

Journals, 496, 498. i It is said that, previously to taking 

f Carte, iv. 23. Neville's memorial, this step, the king sent for the commons, 

above mentioned, was read in the house, and tore all their bills before their faces 

May 14. in the banqueting-house at Whitehall. 

e Carte, iv. 19, 20. Bacon, i. 695. Disraeli's Character of James, p. 158, 

C. J. 462. on the authority of an unpublished 

h C. J. 506. Carte. 23. This writer Letter, 

absurdly defends the prerogative of lay- W Carte. Wilson. Camden's Annals 

ing impositions on merchandise as part of James I. (in Kennet, ii. 643). 



342 BENEVOLENCES. Chap. VI. 

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

m Carte, iv. 56. n 12 Report, 119. 



James I. PROSECUTION OF PEACHAM. 343 

came under the consideration of the star-chamber, where 
the offence having been severely descanted upon by the 
attorney-general, Mr. St. John was sentenced to a fine 
of 5000Z. and to imprisonment during pleasure. 

Coke, though still much at the council-board, was re- 
garded with increasing dislike on account of his prosecution 
uncompromising humour. This he had occasion of Peacham - 
to display in perhaps the worst and most tyrannical act 
of king James's reign, the prosecution of one Peacham, a 
minister in Somersetshire, for high treason. A sermon 
had been found in this man's' study (it does not appear 
what led to the search) , never preached, nor, if judge 
Coke is right, intended to be preached, containing such 
sharp censures upon the king, and invectives against the 
government, as, had they been published, would have 
amounted to a seditious libel. But common sense re- 
volted at construing it into treason under the statute of 
Edward III., as a compassing of the king's death. James, 
however, took it up with indecent eagerness. Peacham 
was put to the rack, and examined upon various interro- 
gatories, as it is expressed by secretary Win wood, " before 
torture, in torture, between torture, and after torture." 
Nothing could be drawn from him as to any accomplices, 
nor any explanation of his design in writing the sermon ; 
which was probably but an intemperate effusion, so com- 
mon among the puritan clergy. It was necessary there- 
fore to rely on this as the overt act of treason. Aware 
of the difficulties that attended this course, the king di- 
rected Bacon previously to confer with the judges of the 
king's bench, one by one, in order to secure their deter- 
mination for the crown. Coke objected that " such parti- 
cular, and, as he called it, auricular taking of opinions 
was not according to the custom of this realm." p The 
other three judges, having been tampered with, agreed 
to answer such questions concerning the case as the king 
might direct to be put to them ; yielding to the sophism 
that every judge was bound by his oath to give counsel 
to his majesty. The chief-justice continued to maintain 
his objection to this separate closeting of judges; yet, 

° State Trials, ii. 889. I cannot at present quote my authority. 

P There had, however, been instances In a former age the judges had refused 
of it, as in sir Walter Raleigh's case, to give an extra-judicial answer to the 
Lodge, iii. 172, 173 ; and I have found king. Lingard, v. 382, from the Year- 
proofs of it in the queen's reign ; though book, Pasch. 1 H. VII. 15. Trin. 1. 



344 DISPUTED JURISDICTION OF Chap. VI. 

finding himself abandoned by his colleagues, consented 
to give answers in writing, which seem to have been 
merely evasive. Peacham was brought to trial, and 
found guilty, but not executed, dying in prison a few 
months after. q 

It was not long before the intrepid chief-justice in- 
Dispute curred again the council's displeasure. This 
about the ju- w iH require, for the sake of part of my readers, 
the court of some little previous explanation. The equi- 
chancery. table jurisdiction, as it is called, of the court of 
chancery appears to have been derived from that exten- 
sive judicial power which, in early times, the king's 
ordinary council had exercised. The chancellor, as one 
of the highest officers of state, took a great share in the 
council's business ; and when it was not sitting, he had 
a court of his own, with jurisdiction in many important 
matters, out of which process to compel appearance of 
parties might at any time emanate. It is not unlikely 
therefore that redress, in matters beyond the legal pro- 
vince of the chancellor, was occasionally given through 
the paramount authority of this court. We find the 
council and the chanceiy named together in many re- 
monstrances of the commons against this interference 
with private rights, from the time of Richard II. to that 
of Henry VI. It was probably in the former reign that 
the chancellor began to establish systematically his pecu- 
liar restraining jurisdiction. This originated in the prac- 
tice of feoffments to uses, by which the feoffee, who had 
legal seisin of the land, stood bound by private engage- 
ment to suffer another, called the cestui que use, to en- 
joy its use and possession. Such fiduciary estates were 
well known to the Roman jurists, but inconsistent with 
the feudal genius of our law. The courts of justice 
gave no redress, if the feoffee to uses violated his trust 

1 State Trials, ii. 869. Bacon, ii. 483, killed by any one, which killing would 
&c. Dalrymple's Memorials of James I. not be murder, being the execution of 
vol. i. p. 56. Some other very unjusti- the supreme sentence of the pope ; " a 
fiable constructions of the law of treason position very atrocious, but not amount- 
took place in this reign. Thomas Owen ing to treason. State Trials, ii. 879. 
was indicted and found guilty, under the And Williams, another papist, was con- 
statute of Edward III., for saying that victed of treason, by a still more violent 
" the king, being excommunicated (i. «. stretch ' of law, for writing a book pre- 
if he should be excommunicated) by the dieting the king's death in the year 1621. 
pope, might be lawfully deposed and Id. 1085. 



James L THE COURT OF CHANCERY. 345 

by detaining the land. To remedy this, an ecclesiastical 
chancellor devised the writ of subpoena, compelling him 
to answer upon oath as to his trust. It was evidently 
necessary also to restrain him from proceeding, as he 
might do, to obtain possession; and this gave rise to 
injunctions, that is, prohibitions to sue at law, the viola- 
tion of which was punishable by imprisonment as a con- 
tempt of court. Other instances of breach of trust oc- 
curred in personal contracts, and cases also wherein, 
without any trust, there was a wrong committed beyond 
the competence of the courts of law to redress ; to all 
which the process of subpoena was made applicable. 
This extension of a novel jurisdiction was partly owing 
to a fundamental principle of our common law, that a 
defendant cannot be examined ; so that, if no witness or 
written instrument could be produced to prove a de- 
mand, the plaintiff was wholly debarred of justice : but 
in a still greater degree to a strange narrowness and 
scrupulosity of the judges, who, fearful of quitting the 
letter of their precedents, even with the clearest analo- 
gies to guide them, repelled so many just suits, and set 
up rules of so much hardship, that men were thankful 
to embrace the relief held out by a tribunal acting in a 
more rational spirit. This error the common lawyers 
began to discover in time to resume a great part of their 
jurisdiction in matters of contract, which would other- 
wise have escaped from them. They made too an appa- 
rently successful effort to recover their exclusive autho- 
rity over real property, by obtaining a statute for turn- 
ing uses into possession; that is, for annihilating the 
fictitious estate of the feoffee to uses, and vesting the 
legal as well as equitable possession in the cestui que 
use. But this victory, if I may use such an expression 
(since it would have freed them, in a most important 
point, from the chancellor's control), they threw away by 
one of those timid and narrow constructions which had 
already turned so much to their prejudice ; and they per- 
mitted trust estates, by the introduction of a few more 
words into a conveyance, to maintain their ground, 
contradistinguished from the legal seisin, under the pro- 
tection and guarantee, as before, of the courts of equity. 
The particular limits of this equitable jurisdiction 
were as yet exceedingly indefinite. The chancellors 



346 COMMEXDAMS. ' Chap. VI. 

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

The chief-justice almost at the same time gave another 
Case of com- provocation, which exposed him more directly 
inendanm. ^ ^g CO urt's resentment. A cause happened to 

r Bacon, ii. 500, 518, 522. Cro. Jac. 335, 343. 



James I. COMMENDAMS. 347 

"be argued in the court of king's bench, wherein the va- 
lidity of a particular grant of a benefice to a bishop to be 
held in commendam, that is, along with his bishopric, 
came into question ; and the counsel at the bar, besides 
the special points of the case, had disputed the king's 
general prerogative of making such a grant. The king, 
on receiving information of this, signified to the chief- 
justice, through the attorney-general, that he would not 
have the court proceed to judgment till he had spoken 
with them. Coke requested that similar letters might be 
written to the judges of all the courts. This having been 
done, they assembled, and, by a letter subscribed with 
all their hands, certified his majesty that they were 
bound by their oaths not to regard any letters that might 
come to them contrary to law, but to do the law notwith- 
standing ; that they held with one consent the attorney- 
general's letter to be contrary to law, and such as they 
could not yield to, arid that they had proceeded accord- 
ing to their oath to argue the cause. 

The king, who was then at Newmarket, returned an- 
swer that he would not suffer his prerogative to be 
wounded, under pretext of the interest of private per- 
sons ; that it had already been more boldly dealt with 
in Westminster Hall than in the reigns of preceding 
princes, which popular and unlawful liberty he would no 
longer endure ; that their oath not to delay justice was 
not meant to prejudice the king's prerogative ; conclud- 
ing that out of his absolute power and authority royal he 
commanded them to forbear meddling any farther in the 
cause till they should hear his pleasure from his own 
mouth. Upon his return to London the twelve judges 
appeared as culprits in the council-chamber. The king 
set forth their misdemeanours, both in substance and in 
the tone of their letter. He observed that the judges 
ought to check those advocates who presume to argue 
against his prerogative ; that the popular lawyers had 
been the men, ever since his accession, who had trodden 
in all parliaments upon it, though the law could never 
be respected if the king were not reverenced ; that he 
had a double prerogative — whereof the one was ordinary, 
and had relation to his private interest, which might be 
and was every day disputed in Westminster Hall ; the 
other was of a higher nature, referring to his supreme 



348 CONDUCT OF THE JUDGES. Chap. VI. 

and imperial power and sovereignty, which ought not to 
be disputed or handled in vulgar argument ; but that of 
late the courts of common law are grown so vast and 
transcendent, as they did both meddle with the king's 
prerogative, and had encroached upon all other courts 
of justice. He commented on the form of the letter, as 
highly indecent ; certifying him merely what they had 
done, instead of submitting to his princely judgment 
what they should do. 

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

The behaviour of the judges in this inglorious conten- 
tion was such as to deprive them of every shadow of that 
confidence which ought to be reposed in their integrity. 
Hobart, Doddridge, and several more, were men of much 
consideration for learning ; and their authority in ordi- 
nary matters of law is still held high. But, having been 

8 Bacon, ii. 51T, &c. Carte, iv. 35. tive as much wounded if it be publicly 
Biograph. Brit, art Coke. The king disputed upon, as if any sentence were 
told the judges he thought his preroga- given against it. 



James I. THE STAR-CHAMBER. 349 

induced by a sense of duty, or through the ascendancy 
that Coke had acquired over them, to make a show of 
withstanding the court, they behaved like cowardly 
rebels who surrender at the first discharge of cannon ; 
and prostituted their integrity and their fame, through 
dread of losing their offices, or rather, perhaps, of incur- 
ring the unmerciful and ruinous penalties of the star- 
chamber. 

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

The unconstitutional and usurped authority of the star- 
chamber over-rode every personal right, though 
an assembled parliament might assert its gene- proceedings 
ral privileges. Several remarkable instances in of the star-, 
history illustrate its tyranny and contempt of all 
known laws and liberties. Two puritans, having been 
committed by the high commission court for refusing 
the oath ex-officio, employed Mr. Fuller, a bencher of 
Gray's Inn, to move for their habeas corpus ; which he 
did on the ground that the high commissioners were not 
empowered to commit any of his majesty's subjects to 
prison. This being reckoned a heinous offence, he was 
himself committed, at Bancroft's instigation (whether by 
the king's personal warrant, or that of the council-board, 

t See D'Israeli, Character of James I. Kennet, vol. ii. Wilson, ibid. 704, 705. 

p. 125. He was too much affected by Bacon's Works, ii. 574. The fine im- 

his dismissal from office. posed was 30,000k ; Coke voted for 

u Camden's Annals of James I. in 100,0001. 



350 ARABELLA STUART. Chap. VI. 

does not appear), and lay in gaol to the day of his death ; 
the archhishop constantly opposing his discharge, for 
which he petitioned." Whitelock, a barrister and after- 
wards a judge, was brought before the star-chamber on 
the charge of having given a private opinion to his client, 
that a certain commission issued by the crown was ille- 
gal. This was said to be a high contempt and slander of 
the king's prerogative. But, after a speech from Bacon 
in aggravation of this offence, the delinquent was dis- 
charged on a humble submission/ Such, too, was the 
fate of a more distinguished person on a still more pre- 
posterous accusation. Selden, in his History of Tithes, 
had indirectly weakened the claim of divine right, which 
the high-church faction pretended, and had attacked the 
argument from prescription, deriving their legal institu- 
tion from the age of Charlemagne, or even a later era. 
Not content with letting loose on him some stanch pole- 
mical writers, the bishops prevailed on James to summon 
the author before the council. This proceeding is as 
much the disgrace of England as that against Galileo 
nearly at the same time is of Italy. Selden, like the 
great Florentine astronomer, bent to the rod of power, 
and made rather too submissive an apology for entering 
on this purely historical discussion. 1 

Every generous mind must reckon the treatment of 
Arabella Arabella Stuart among the hard measures of 
stuart. despotism, even if it were not also grossly in 
violation of English law. Exposed by her high descent 
and ambiguous pretensions to become the victim of am- 
bitious designs wherein she did not participate, that lady 
may be added to the sad list of royal sufferers who have 
envied the lot of humble birth. There is not, as I be- 
lieve, the least particle of evidence that she was engaged 
in the intrigues of the catholic party to place her on the 
throne. It was, however, thought a necessary precaution 
to put her in confinement a short time before the queen's 
death. a At the trial of Raleigh she was present ; and 
Cecil openly acquitted her of any share in the conspi- 
racy. 5 She enjoyed afterwards a pension from the king, 

x Fuller's Church Hist 56. Neal, i. Biographia Brit. 

435. Lodge, iii. 344. ° Carte, iii. 698. 

y State Trials, ii. 765. b State Trials, ii. 23. Lodge's Illus- 

2 Collier, 712, 717. Selden's Life in trations, iii. 217. 



James I.- ARABELLA STUART. 351 

and might have died in peace and obscurity, had she not 
conceived an unhappy attachment for Mr. Seymour, 
grandson of that earl of Hertford, himself so memorable 
an example of the perils of ambitious love. They were 
privately married ; but on the fact transpiring, the coun- 
cil, who saw with jealous eyes the possible union of two 
dormant pretensions to the crown, committed them to 
the Tower. They both made their escape, but Arabella 
was arrested and brought back. Long and hopeless cala- 
mity broke down her mind ; imploring in vain the just 
privileges of an Englishwoman, and nearly in want 
of necessaries, she died in prison, and in a state of 
lunacy, some years afterwards/ 1 And this through the 
oppression of a kinsman whose advocates are always 
vaunting his good nature ! Her husband became the 
famous marquis of Hertford, the faithful counsellor of 
Charles I., and partaker of his adversity. Lady Shrews- 
bury, aunt to Arabella, was examined on suspicion 
of being privy to her escape ; and for refusing to answer 
the questions put to her, or, in other words, to accuse her- 



c Winwood, iii. 201, 279. to remove her far from those courts of 

d Winwood, iii. 178. In this collection justice where she ought to be tried and 

are one or two letters from Arabella, condemned, or cleared, to remote parts, 

which show her to have been a lively whose courts she holds unfitted for her 

and accomplished woman. It is said, in offence. "And if your lordships may 

a manuscript account of circumstances not or will not grant unto me the ordi- 

about the king's accession, which seems nary relief of a distressed subject, then I 

entitled to some credit, that on its being beseech you become humble intercessors 

proposed that she should walk at the to his majesty that I may receive such 

queen's funeral, she answered with spirit benefit of justice as both his majesty by 

that, as she had been debarred her ma- his oath hath promised, and the laws of 

jesty's presence while living, she would this realm afford to all others, those of 

not be brought on the stage as a public h' s blood not excepted. And though, un- 

spectacle after her death. Sloane MSS. fortunate woman! I can obtain neither, 

827. yet I beseech your lordships retain me in 

Much occurs on the subjec.t of this your good opinion, and judge charitably, 

lady's imprisonment in one of the valu- till I be proved to have committed any 

able volumes in Dr. Birch's handwriting, offence, either against God or his majesty, 

among the same MSS. 4161. Those have deserving so long restraint or separation 

already assisted Mr. DTsraeli in his in- from my lawful husband." 
teresting memoir on Arabella Stuart, in Arabella did not profess the Roman 

the Curiosities of Literature, new series, catholic religion, but that party seem to 

vol. i. They cannot be read (as I should have relied upon her ; and so late as 

conceive) without indignation at James 1610 she Incurred some "suspicion of 

and his ministers. One of her letters is being collapsed." AVinwood, ii. 117. 
addressed to the two chief-justices, beg- This had been also conjectured in the 

ging to be brought before them by habeas queen's lifetime. Secret Correspondence 

corpus, being informed that it is designed of Cecil with James I., p. 118. 



352 SOMERSET AND OVERBURY. Chap. VI. 

self, was sentenced to a fine of 20,000/., and discretionary- 
imprisonment. 8 

Several events, so well known that it is hardly neces- 
sary to dwell on them, aggravated the king's unpopularity 
Somerset during this parliamentary interval. The murder 
and over- f Overbury burst into light, and revealed to an 
indignant nation the king's unworthy favourite, 
the earl of Somerset, and the hoary pander of that fa- 
vourite's vices, the earl of Northampton, accomplices in 
that deep-laid and deliberate atrocity. Nor was it only 
that men so flagitious should have swayed the councils of 
this country, and rioted in the king's favour. Strange 
things were whispered, as if the death of Overbury was 
connected with something that did not yet transpire, and 
which every effort was employed to conceal. The people, 
who had already attributed prince Henry's death to poi- 
son, now laid it at the door of Somerset ; but for that 
conjecture, however highly countenanced at the time, 
there could be no foundation. The symptoms of the 
prince's illness, and the appearances on dissection, are 
not such as could result from any poison, and manifestly 
indicate a malignant fever, aggravated perhaps by inju- 
dicious treatment/ Yet it is certain that a mystery hangs 
over this scandalous tale of Overbury's murder. The inso- 
lence and menaces of Somerset in the Tower, the shrinking 
apprehensions of him which the king could not conceal, 
the pains taken by Bacon to prevent his becoming despe- 
rate, and, as I suspect, to mislead the hearers by throwing 

e State Trials, ii. 769. Carte says, vol. iv. 33, that the queen 
f Sir Charles Cornwallis's Memoir of charged Somerset with designing to poison 
Prince Henry, reprinted in the Somers her, prince Charles, and the elector pala- 
Tracts, vol. ii., and of -which sufficient tine, in order to marry the electress to 
extracts may he found in Birch's Life, lord Suffolk's son. But this is too extra- 
contains a remarkably minute detail of vagant, whatever Anne might have 
all the symptoms attending the prince's thrown out in passion against a favour- 
illness, which was an epidemic typhus ite she hated. On Henry's death, the 
fever. The report of his physicians after first suspicion fell of course on the pa- 
dissection may also be read in many pists. Winwood, iii. 410. Burnet doubts 
books. Nature might possibly have over- whether his aversion to popery did not 
come the disorder, if an empirical doctor hasten his death. And there is a remark- 
had not insisted on continually bleeding able letter from sir Robert Naunton to 
him. He had no other murderer. We Winwood, in the note of the last refer- 
need not even have recourse to Hume's ence, which shows that suspicions of some 
acute and decisive remark, that, if Somer- such agency were entertained very early, 
set had been so experienced in this trade, But the positive evidence we have of his 
he would not have spent five months disease outweighs all conjecture, 
in bungling about Overbury's death. 



James I. 



SIR WALTER RALEIGH. 



353 



them on a wrong scent, are very remarkable circumstances 
to which, after a good deal of attention, I can discover no 
probable clue. But it is evident that he was master of 
some secret which it would have highly prejudiced the 
king's honour to divulge.* 



5 The circumstances to which I allude 
are well known to the curious in Knglish 
history, and might furnish materials for 
a separate dissertation, had I leisure to 
stray in these hy-paths. Hume has 
treated them as quite unimportant; and 
Carte, with his usual honesty, has never 
alluded to them. Those who read care- 
fully the new edition of the State Trials, 
and various passages in lord Bacon's 
Letters, may form for themselves the 
best judgment they can. A few conclu- 
sions may, perhaps, be laid down as esta- 
blished. 1. That Overbury'8 death was 
occasioned, not merely by lady Somerset's 
revenge, but by his possession of impor- 
tant secrets, which in his passion he had 
threatened Somerset to divulge. 2. That 
Somerset conceived himself to have a 
hold over the king by the possession 
of the same or some other secrets, and 
used indirect threats of revealing them. 

3. That the king was in the utmost terror 
at hearing of these measures ; as is proved 
by a passage in Weldon's Memoirs, p. 1 15, 
which, after being long ascribed to his 
libellous spirit, has lately received the 
most entire confirmation by some letters 
from More, lieutenant of the Tower, 
published in the Archajologia, vol. xviii. 

4. That Bacon was in the king's confi- 
dence, and employed by him so to manage 
Somerset's trial as to prevent him from 
making any imprudent disclosure, or the 
judges from getting any insight into that 
which it was not meant to reveal. See 
particularly a passage in his letter to 
Coke, vol. ii. 514, beginning, "This crime 
■was second to none but the powder- 
plot." 

Upon the whole, I cannot satisfy my- 
self in any manner as to this mystery. 
Prince Henry's death, as I have observed, 
is out of the question ; nor does a differ- 
ent solution, hinted by Harris and others, 
and which may have suggested itself to 
the reader, appear probable to my judg- 
ment on weighing the whole case. Over- 
bury was an ambitious, unprincipled 
man ; and it seems more likely than any- 
VOL. I. 



thing else that James had listened too 
much to some criminal suggestion from 
him and Somerset, — but of what nature 
I cannot pretend even to conjecture ; and 
that, through apprehension of this being 
disclosed, he had pusillanimously acqui- 
esced in the scheme of Overbury's mur- 
der. 

It is a remarkable fact, mentioned by 
Burnet, and perhaps little believed, but 
which, like the former, has lately been 
confirmed by documents printed in the 
Archaeologia, that James, in the last year 
of his reign, while dissatisfied with Buck- 
ingham, privately renewed his corre- 
spondence with Somerset, on whom he 
bestowed at the same time a full pardon, 
and seems to have given him hopes of 
being restored to his former favour. A 
memorial drawn up by Somerset, evi- 
dently at the king's command, and most 
probably after the clandestine interview 
reported by Burnet, contains strong 
charges against Buckingham. Archaeolo- 
gia, vol. xvii. 280. But no consequences 
resulted from this; James was either re- 
conciled to his favourite before his death, 
or felt himself too old for a struggle. 
Somerset seems to have tampered a little 
with the popular party in the beginning 
of the next reign. A speech of sir Robert 
Cotton's, in 1625, Pari. Hist ii. 145, 
praises him, comparatively at least with 
his successor in royal favour ; and he was 
one of those against whom informations 
were brought in the star-chamber for 
dispersing sir Robert Dudley's famous 
proposal for bridling the impertinences of 
parliament. Kennet, iii. 62. The pa- 
triots, however, of that age had too much 
sense to encumber themselves with an 
ally equally unserviceable and infamous. 
There cannot be the slightest doubt of 
Somerset's guilt as to the murder, though 
some have thought the evidence insuffi- 
cient (Carte, iv. 34) ; he does not deny it 
in his remarkable letter to James, re- 
questing, or rather demanding, mercy, 
printed in the Cabala, and in Bacon'* 
Works. 

2 A 



354 



SIR WALTER RALEIGH. 



Chap. VI. 



Sir Walter Ealeigh's execution was another stain upon 
Sir Waiter the reputation of James I. It is needless 
Raieigb. ^0 men tion that he fell under a sentence passed 
fifteen years before, on a charge of high treason, in 
plotting to raise Arabella Stuart to the throne. It is 
very probable that this charge was, partly at least, 
founded in truth ; h but his conviction was obtained on 
the single deposition of lord Cobham, an accomplice, a 
prisoner, not examined in court, and known to have 
already retracted his accusation. Such a verdict was 
thought contrary to law, even in that age of ready con- 
victions. It was a severe measure to detain for twelve 
years in prison so splendid an ornament of his country, 
and to confiscate his whole estate.' For Ealeigh's conduct 
in the expedition to Guiana there is not much excuse to 
make. Rashness and want of foresight were always 



r t» Raleigh made an attempt to destroy 
himself on being committed to the Tower, 
which of course affords a presumption of 
his consciousness that something could 
be proved against him. Cayley's Life of 
Raleigh, vol. ii. p. 10. Hume says, it 
appears from Sully's Memoirs that he 
had offered his services to the French 
ambassador. 1 cannot find this in Sully; 
■whom Raleigh, however, and his party 
seem to have aimed at deceiving by 
false information. Nor could there be 
any treason in making an interest with 
the minister of a friendly power. Carte 
quotes the despatches of Beaumont, the 
French ambassador, to prove the con- 
nexion of the conspirators with the 
Spanish plenipotentiary. But it may be 
questioned whether he knew any more 
than the government gave out If Ra- 
leigh had ever shown a discretion bearing 
the least proportion to his genius, we 
might reject the whole story as impro- 
bable. But it is to be remembered that 
there had long been a catholic faction, 
who fixed their hopes on Arabella; so 
that the conspiracy, though extremely 
injudicious, was not so perfectly unintel- 
ligible as it appears to a reader of Hume, 
who has overlooked the previous circum- 
stances. It is also to be considered that 
the king had shown so marked a prejudice 
against Raleigh on his coming to Eng- 
land, and the hostility of Cecil was so 
insidious and implacable, as might drive 



a man of his rash and impetuous courage 
to desperate courses. See Cayley's Life 
of Raleigh, vol. ii. ; a work containing 
much interesting matter, but unfortu- 
nately written too much in the spirit of 
an advocate, which, with so faulty a 
client, must tend to an erroneous repre- 
sentation of facts. 

i This estate was Sherborn castle, 
which Raleigh had not very fairly ob- 
tained from the see of Salisbury. He 
settled this before his conviction upon 
his son; but an accidental flaw in the 
deed enabled the king to wrest it from 
him, and bestow it on the earl of Somer- 
set. Lady Raleigh, it is said, solicited 
his majesty on her knees to spare it ; but 
he only answered, " 1 mun have the land, 
I mun have it for Carr." He gave him, 
however, 12,0002. instead. But the estate 
was worth 50002. per annum. This ruin 
of the prospects of a man, far too intent 
on aggrandizement, impelled him once 
more into the labyrinth of fatal and dis- 
honest speculations. Cayley, 89, &c. ; 
Somers Tracts, ii. 22, &c. ; Curiosities of 
Literature, new series, vol. ii. It has 
been said that Raleigh's unjust conviction 
made him in one day the most popular, 
from having been the most odious, man in 
England. He was certainly such under 
Elizabeth. This is a striking, but by no 
means solitary, instance of the impolicy 
of political persecution. 



James I. JAMES'S PREDILECTION FOR SPAIN. 355 

among his failings; else he would not have undertaken 
a "service of so much hazard without obtaining a regular 
pardon for his former offence. But it might surely he 
urged that either his commission was absolutely null, or 
that it operated as a pardon ; since a man attainted of 
treason is incapable of exercising that authority which is 
conferred upon him. v Be this as it may, no technical 
reasoning could overcome the moral sense that revolted 
at carrying the original sentence into execution. Ra- 
leigh might be amenable to punishment for the deception 
by which he had obtained a commission that ought never 
to have issued ; but the nation could not help seeing in 
his death the sacrifice of the bravest and most renowned 
of Englishmen to the vengeance of Spain. 1 

This unfortunate predilection for the court of Madrid 
had always exposed James to his subjects' jealousy. They 
connected it with an inclination at least to tolerate po- 
pery, and with a dereliction of their commercial interests. 
But from the time that he fixed his hopes on the union of 
his son with the infanta, m the popular dislike to Spain in- 
creased in proportion to his blind preference. If the king 
had not systematically disregarded the public wishes, he 
could never have set his heart on this impolitic match ; 
contrary to the wiser maxim he had laid down in his own 
Basilicon Doron, never to seek a wife for his son except 
in a protestant family. But his absurd pride made him 
despise the uncrowned princes of Germany. This Spa- 

k Rymer, xvi. 789. He was empow- ledge the sovereignty of prince Henry 

ered to name officers, to use martial law, and the infanta on their marriage ; and 

&c. Cornwallis was directed to propose this 

1 James made it a merit with the formally to the court of Madrid. Id. 

court of Madrid that he had put to death p. 201. But Spain would not cede the 

a man so capable of serving him, merely point of so vereignty ; nor was this scheme 

to give them satisfaction. Somers Tracts, likely to please either the states-general 

ii. 437. There is even reason to suspect or the court of France, 
that he betrayed the secret of Raleigh's In the later negotiation about the 

voyage to Gondomar before he sailed, marriage of prince Charles, those of the 

Hardwicke, State Papers, i. 398. It is council who were known or suspected 

said in Mr. Cayley's Life of Raleigh that catholics, Arundel, Worcester, Digby, 

his fatal mistake in not securing a par- Weston, Calvert, as well as Buckingham, 

don under the great seal was on account whose connections were such, were in the 

Of the expense. But the king would have Spanish party. Those reputed to be 

made some difficulty at least about zealous protestants were all against it 

granting it Wilson in Kennet, ii. 725. Many of 

m This project began as early as 1605. the former were bribed by Gondomar. 

Winwood, vol. ii. The king had hopes Id., and Rushworth, i. 19. 
that the United Provinces would acknow- 

2 A 2 



356 PARLIAMENT OF 1621. Chap. VI. 

nish policy grew much more odious after the memorable 
events of 1619, the election of the king's son-in-law to 
the throne of Bohemia, his rapid downfall, and the con- 
quest of the Upper Palatinate by Austria. If James had 
listened to some sanguine advisers, he would in the first 
instance have supported the pretensions of Frederic. But 
neither his own views of public law nor true policy dic- 
tated such an interference. The case was changed after 
the loss of his hereditary dominions, and the king was 
sincerely desirous to restore him to the Palatinate ; but 
he unreasonably expected that he could effect this through 
the friendly mediation of Spain, while the nation, not per- 
haps less unreasonably, were clamorous for his attempting 
it by force of arms. In this agitation of the public mind 
he summoned the parliament that met in February, 
1621. n 

The king's speech on opening the session was, like all 
Parliament he had made on former occasions, full of hopes 
of i62i. an( j promises, taking cheerfully his share of the 
blame as to past disagreements, and treating them as 
little likely to recur though all their causes were still in 
operation. He displayed, however, more judgment than 
usual in the commencement of this parliament. Among the 
methods devised to compensate the want of subsidies, none 
had been more injurious to the subject than patents of 
monopoly, including licences for exclusively carrying on 
certain trades. Though the government was principally 
responsible for the exactions they connived at, and from 
which they reaped a large benefit, the popular odium fell 
of course on the monopolists. Of these the most obnoxious 
Proceedings was s * r G*^ es Mompesson, who, having obtained 
against a patent for gold and silver thread, sold it of 
Mompesson. k aser me tal. This fraud seems neither very ex- 
traordinary nor very important ; but he had another patent 

n The proclamation for this parliament last parliament there was " a strange kind 

contains many of the unconstitutional of beast called undertaker," &c. Pari, 

directions to the electors, contained, as Hist. i. 1180. Yet this coaxing language 

has been seen, in that of 1604, though was oddly mingled with sallies of his 

shorter. Rymer, xvii. 270. pride and prerogative notions. It is 

"Deal with me as I shall desire at evidently his own composition, not Ba-, 

your hands," &c. "He knew not," he con's. The latter, in granting the speaker's 

told them, " the laws and customs of the petitions, took the high tone so usual in 

land when he first came, and was misled this reign, and directed the house of 

by the old councillors whom the old commons like a schoolmaster. Bacon's 

queen had left ; "—he owns that at the Works, 1. 701. 



James I. PROCEEDINGS AGAINST MOMPESSON. 357 

for licensing inns and alehouses, wherein he is said to 
have used extreme violence and oppression. The house 
of commons proceeded to investigate Mompesson's delin- 
quency. Conscious that the crown had withdrawn its 
protection, he fled heyond sea. One Michell, a justice of 
peace, who had been the instrument of his tyranny, fell 
into the hands of the commons, who voted him incapable 
of being in the commission of the peace and sent him to 
the Tower. p Entertaining however, upon second thoughts, 
as we must presume, some doubts about their competence 
to inflict this punishment, especially the former part of it, 
they took the more prudent course, with respect to Mom- 
pesson, of appointing Noy and Hakewill to search for 
precedents in order to show how far and for what 
offences their power extended to punish delinquents 
against the state as well as those who offended against 
that house. The result appears some days after, in a 
vote that " they must join with the lords for punishing 
sir Giles Mompesson; it being no offence against our 
particular house, nor any member of it, but a general 
grievance. " q 

The earliest instance of parliamentary impeachment, 
or of a solemn accusation of any individual by the com- 
mons at the bar of the lords, was that of lord Latimer in 
the year 1376. The latest hitherto was that of the duke 
of Suffolk in 1449 ; for a proceeding against the bishop 
of London in 1534, which has sometimes been reckoned 
an instance of parliamentary impeachment, does not by 
any means support that privilege of the commons. r It 
bad fallen into disuse, partly from the loss of that control 
which the commons had obtained under Eichard II. and 
the Lancastrian kings, and partly from the preference 
the Tudor princes had given to bills of attainder or of 

P Debates of Commons in 1621, vol. answer their complaint. The bishop laid 

L p. 84. I quote the two volumes pub- the matter before the lords, who all de- 

lished at Oxford in 1766 : they are clared that it was unbecoming for any 

abridged in the new Parliamentary His- lord of Parliament to make answer to 

tory. any one in thai place ; " quod non con- 

1 Debates of Commons in 1621, vol. L sentaneum fuit aliquem procerum prse- 

p. 103, 109. dictorum alicui in eo loco responsurum. - ' 

r The commons in this session com- Lords' Journals, i. 71. The lords, how- 
plained to the lords that the bishop of ever, in 1701 (State Trials, xiv. 275), 
London (Stokesley) had imprisoned one seem to have recognised this as a case of 
Philips on suspicion of heresy. Some impeachment, 
time afterwards they called upon him to 



358 PROCEEDINGS AGAINST MOMPESSON ; Chap. VI. 

pains and penalties, when they wished to turn the arm 
of parliament against an obnoxious subject. The revival 
of this ancient mode of proceeding in the case of Mom- 
pesson, though a remarkable event in our constitutional 
annals, does not appear to have been noticed as an ano- 
maly. It was not indeed conducted according to all the 
forms of an impeachment. The commons, requesting a 
conference with the other house, informed them gene- 
rally of that person's offence, but did not exhibit any dis- 
tinct articles at their bar. The lords took up themselves 
the inquiry ; and, having become satisfied of his guilt, 
sent a message to the commons that they were ready to 
pronounce sentence. The speaker accordingly, attended 
by all the house, demanded judgment at the bar : when 
the lords passed as heavy a sentence as could be awarded 
for any misdemeanour ; to which the king, by a stretch 
of prerogative which no one was then inclined to call in 
question, was pleased to add perpetual banishment. * 

The impeachment of Mompesson was followed up by 
others against Michell, the associate in' his iniquities ; 
against sir John Bennet, judge of the prerogative court, 
for corruption in his office ; and against Field, bishop of 
Llandaff, for being concerned in a matter of bribery.' 
The first of these was punished ; but the prosecution of 
Bennet seems to have dropped in consequence of the ad- 
journment, and that of the bishop ended in a slight cen- 
sure. But the wrath of the commons was justly roused 
against that shameless corruption which characterizes 
the reign of James beyond every other in our history. It 
is too well known how deeply the greatest man of that 
age was tarnished by the prevailing iniquity. Com- 
ProceedinRs Points poured in against the chancellor Bacon 
against lord for receiving bribes from suitors in his court. 
Some have vainly endeavoured to discover an 
excuse which he did not pretend to set up, and even 
ascribed the prosecution to the malevolence of sir Edward 
Coke. u But Coke took no prominent share in this busi- 
ness ; and though some of the charges against Bacon may 
not appear very heinous, especially for those times, I 
know not whether the unanimous conviction of such a 
man, and the conscious pusillanimity of his defence, do 
not afford a more irresistible presumption of his miscon- 

8 Debates in 1621, p. 114, 228, 229. t id. passim. u Carte. 



James I. 



AND AGAINST LORD BACON. 



359 



duct than anything specially alleged. He was aban- 
doned^ by the court, and had previously lost, as I rather 
suspect, Buckingham's favour ; but the king, who had a 
sense of his transcendent genius, remitted the fine of 
40,000/. imposed by the lords, which he was wholly un- 
able to pay. x 

There was much to commend in the severity practised 
by the house towards public delinquents ; such examples 



x Clarendon speaks of this impeach- 
ment as an unhappy precedent, made to 
gratify a private displeasure. This ex- 
pression seems rather to point to Buck- 
ingham than to Coke ; and some letters 
of Bacon to the favourite at the time of 
his fall display a consciousness of having 
offended him. Yet Buckingham had 
much more reason to thank Bacon as his 
wisest counsellor than to assist in crush- 
ing him. In his Works, vol. i. p. 71^7 
is a tract entitled ' Advice to the Duke 
of Buckingham, containing instructions 
for his governance as Minister.' These 
are marked by the deep sagacity and ex- 
tensive observation of the writer. One 
passage should be quoted in justice to 
Bacon. " As far as it may lie in you, 
let no arbitrary power be intruded ; the 
people of this kingdom love the laws 
thereof, and nothing will oblige them 
more than a confidence of the free enjoy- 
ing of them; what the nobles npon an 
occasion once said in Parliament, * Nolu- 
rnus leges Angliae mutiri,' is imprinted 
in the hearts of all the people." I may 
add, that, with all Bacon's pliancy, there 
are fewer overstrained expressions about 
the prerogative in his political writings 
than we should expect. His practice 
was servile, but his principles were not 
unconstitutional. We have seen how 
strongly he urged the calling of parlia- 
ment in 1614: and he did the same, un- 
happily for himself, in 1621. VoL ii. 
p. 580. He refused also to set the great 
seal to an office intended to be erected 
for enrolling prentices, a speculation ap- 
parently of some monopolists; writing a 
very proper letter to Buckingham, that 
there was no ground of law for it. P. 555. 
I am very loth to call Bacon, for the 
sake of Pope's antithesis, " the meanest 
of mankind." Who would not wish to 
believe the feeling language of his letter 
to the king, after the attack on him had 



already begun ? "I hope I shall not be 
found to have thfe troubled fountain of a 
corrupt heart, in a depraved habit of 
taking rewards to pervert justice ; how- 
soever I may be frail, and partake of the 
abuses of the times." P. 589. Yet the 
general disesteem of his contemporaries 
speaks forcibly against him. Sir Simon 
d'Ewes and Weldon, both indeed bitter 
men, give him the worst of characters. 
" Surely," says the latter, " never so 
many parts and so base and abject a 
spirit tenanted together in any one 
earthen cottage as in this man." It is a 
striking proof of the splendour of Bacon's 
genius that it was unanimously acknow- 
ledged in his own age amidst so much 
that should excite contempt He had 
indeed ingratiated himself with every 
preceding parliament through his incom- 
parable ductility ; having taken an active 
part in their complaints of grievances in 
1604, before he became attorney-general, 
and even on many occasions afterwards, 
while he held that office, having been 
intrusted with the management of con- 
ferences on the most delicate subjects. 
In 1614 the commons, after voting that 
the attorney-general onght not to be 
elected to parliament, made an exception 
in favour of Bacon. Journals, p. 460. 
" I have been always gracious in the 
lower house," he writes to James in 
1616, begging for the post of chancellor : 
"I have interest in the gentlemen of 
England, and shall be able to do some 
good effect in rectifying that body of 
parliament-men, which is cardo rerum." 
Vol. ii. p. 496. 

I shall conclude this note by observing, 
that, if all lord Bacon's philosophy had 
never existed, there would be enough in 
his political writings to place him among 
the greatest men tins country has pro- 
duced. 



360 VIOLENCE OF PARLIAMENT Chap. VI. 

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

This message put them into some embarrassment. 
They had come to a vote in Mompesson's case, in the very 
words employed in the king's message, confes'sing them- 
selves to have no jurisdiction, except over offences against 
themselves. The warm speakers now controverted this 
proposition with such arguments as they could muster ; 
Coke, though from the reported debates he seems not to 
have gone the whole length, contending that the house 
was a court of record, and that it consequently had 
power to administer an oath. y They returned a message 
by the speaker, excepting to the record in 1 H. IV., be- 
cause it was not an act of parliament to bind them, and 
persisting, though with humility, in their first votes." 
The king replied mildly ; urging them to show prece- 

7 Debates in 1621, vol. ii. p. 1. * Debates, p. 14. 



James I. IN THE CASE OF FLOYD. 361 

dents, which they were manifestly incapable of doing. 
The lords requested a conference, which they managed 
with more temper, and, notwithstanding the solicitude 
displayed by the commons to maintain their pretended 
right, succeeded in withdrawing the matter to their own 
jurisdiction. a This conflict of privileges was by no means 
of service to the unfortunate culprit : the lords perceived 
that they could not mitigate the sentence of the lower 
house without reviving their dispute, and vindicated 
themselves from all suspicion of indifference towards the 
cause of the Palatinate by augmented severity. Floyd 
was adjudged to be degraded from his gentility, Violence jn 
and to be held an infamous person ; his testi- the case of 
mony not to be received ; to ride from the Fleet Floyd * 
to Cheapside on horseback without a saddle, with his 
face to the horse's tail, and the tail in his hand, and there 
to stand two hours in the pillory, and to be branded in 
the forehead with the letter K ; to ride four days after- 
wards in the same manner to Westminster, and there to 
stand two hours more in the pillory, with words in a 
paper in his hat showing his offence ; to be whipped at 
the cart's tail from the Fleet to Westminster Hall; to 
pay a fine of 5000/., and to be a prisoner in Newgate 
during his life. The whipping was a few days after re- 
mitted on prince Charles's motion ; but he seems to have 
undergone the rest of the sentence. There is surely no 
instance in the annals of our own, and hardly of any 
civilized country, where a trifling offence, if it were 
one, has been visited with such outrageous cruelty. The 
cold-blooded deliberate policy of the lords is still more 
disgusting than the wild fury of the lower house. b 

a In a former parliament of this reign, afterwards, to denominate their own 

the commons having sent up a message, house a court, as appears by memoranda 

wherein they entitled themselves the of 27th and 28th May ; they even issued 

knights, citizens, burgesses, and barons a habeas corpus, as from a court, to bring 

of the commons" court of parliament, the a servant of the earl of Bedford before 

lords sent them word t