jL. I B A. ^ PRiNCEroy. y. j. \ The J- and Law. — Hemy VII. — Statute for the Security of the Subject under a King dc facto. — Statute of Fines. — Discussion of its Effect and Motive. — Exactions of Money under Heni-y VII. — Taxes demanded by Henry VIII. — Illegal Ex- actions 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 Execu- tions 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. — Govenunent of Edward VI.'s Coun- selors.— Attainder of Lord Seymour and Duke of Somerset. — Violence of Mary's Reign. — The House of Commons recovei's Part of its independ- ent 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 Coimcil of Star Chamber. — This not the same with the Court erected by Henry VII. — Influence of the Author- ity of the Star Chamber in enhancing the Royal Power. — Tendency of ReUgious Disputes to the same End. The government of England, in all times Ancient gov- I'ecorded by history, has been ernmentof one of those mixed or limited England. monarchies which the Celtic and Gothic tribes appear universally to have es- tablished, in preference to the coarse des- potism of Eastern nations, to the more arti- ficial tyranny of Rome and Constantinople, or to the various models of Republican poli- ty Avhich were tried upon the coasts of the Mediterranean Sea. It bore the same gen- eral features ; it belonged, as it were, to the same family, as the governments of almost every European state, though less resem- bling, perhaps, that of France than any oth- er. But, in the course of many centuries, the boundaries which determined the sov- ereign's prerogative and the people's liberty or power having seldom been very accu- rately defined by law, or at least by such law as was deemed fundamental and un- changeable, the forms and principles of po- litical regimen in these difl'ercnt nations be- came more divergent from each other, ac- cording to their peculiar dispositions, the revolutions they undei-^vent, or the influ- ence of personal character. England, more fortunate than the rest, had acquired in the fifteenth century a just 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 hiippier season for its perfect ripeness, but already giving proof of the vigor and industry which had been employed in its cultui-e. I have endeavor- ed, in a work of which this may in a certain degi'ee be reckoned a continuation, to trace the leading events and causes of its prog- ress. It will be sufficient in this place briefly to point out the principal circum- stances in the polity of England at the ac- cession of Hemy VII. 14 CONSTITUTIONAL HISTORY OF ENGLA'ND [Chap. 1. The essential checks upon the royal au- L m tat on ^'^°''''-y '^^cre five in number : 1 . of royal au- The king could levy no sort of thority. new tax upon his people except by the grant of his Parliament, consisting as well of bishops and miti'ed abbots or lords spiritual, and of hereditaiy peers or tempo- ra.\ lords, who sat and voted promiscuously in the same chamber, as of representatives from the freeholders of each county, and from the burgesses of many towns and less considerable places, forming the Lower, or Commons' House. 2. The previous assent and authority of the same Eissembly was necessary for eveiy new law, whether of a general or temporar}' nature. 3. No man could be committed to prison but by a legal warrant specifying his offense ; and, by a usEige nearly tantamount to constitutional right, he must be speedily brought to ti-ial by means of regular sessions of jail-deliv- ery. 4. The fact of guilt or innocence on a criminal charge was determined in a public court, and in the county where the offense was alleged to have occurred, by a jmy 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 sen'ants of the crown, violating the personal liberty or other right of the subject, might be sued in an action for dam- ages, 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 or- der of the king. These secmities, though it would be easy to prove that they were all rec- Diflference in . j ■ , j i_ - the effective ognized m law, dmered much m operation of ^jjg degree of their effective op- tnese. ° i /- , eration. It may be said of the first that it was now completely established. After a long contention, the kings of Eng- land had desisted for near a hundred years from eveiy attempt to impose taxes with- out consent of Parliament; and their re- cent device of demanding benevolences, or half-compulsory gifts, though veiy oppress- ive, and on that account just abolished by an act of the late usurper, Richard, was in ef- fect a recognition of the general principle, which it sought to elude rather than trans- gress. The necessary concurrence of the two houses of Parliament in legislation, though it could not be more unequivocally estab- lished than the former, had in earlier times been more free from all attempt or pretext of 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 wheth- er the repi'esentatives of the ordinary free- holders, 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 plenaiy legislative authority ; and if the sanction of a statute were required for this fundamental axiom, we might refer to one in the loth 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 es- tablished in Parliament, by the king, and by the assent of the prelates, earls, and barons, and the commonalty of the realm, accord- ing as had been before accustomed."* It may not be impertinent to remark in this place, that the opinion of such as have fancied the royal prerogative mider the houses of Plantagenet and Tudor to have had no effectual or unquestioned limitations, is decidedly refuted by the notorious fact that no alteration in tlie general laws of the realm was ever made, or attempted to be made, without the consent of Pailiament. It is not surprising that the council, in great exigency of money, should sometimes em- ploy force to extort it from the merchants, or that sei-vile lawyers should be found to vindicate these encroachments of power. Impositions, like other arbitrary measures, were particular and temporary, prompted by rapacity, and endui-ed tlu-ough compul- sion. But if the kings of England had been supposed to enjoy an absolute authority, we should find some proofs of it in their exer- * This statute is not even alluded to in Ruff- head's edition, and has been very little noticed by writers on our law or historj-. It is printed in the late edition, published by authority, and is brought forward in the First Report of the Lords' Commit- tee, on the dignity of a Peer (1819), p. 282. Noth- ing can be more evident than that it not only es- tablishes by a legislative declaration the present constitution of Parliament, but recognizes it as al- ready standing upon a custom of some length of time. Hk-n. VII.] FROM HENRY VII. TO GEORGE II. 15 cise of the supreme function of sovereignty, j merous and respectable body, some occu- the enactment of new laws. Yet there is pying their own estates, some those of land- not a single instance, from tlie first dawn of lords; the burgesses and inferior inhabitants our Constitutional history, where a procla- of trading towns ; and, lastly, the peasantry mation, or order of council, has dictated any and laborers. Of these, in earlier times, a change, however trifling, in the code of pri- considerable part, though not, perhaps, so vate rights, or in the penalties of criminal very large a proportion as is usually taken offenses. Was it ever pretended that the for gi-anted, had been in the ignominious king could empower his subjects to devise state of villenage, incapable of possessing their freeholds, or to le\'j' fines of their en- property but at the will of their lords, tailed lands ? Has even the slightest regu- They had, hov\'ever, gradually been raised lation, as to judicial procedure, or any per- above this servitude ; many had acquhed a manent prohibition, even in fiscal law, been stable possession of lands under the name ever enforced without statute ? There was, of copy -holders ; and the condition of mere indeed, a period, later than that of Henry villenage was become rare. V^II., when a control over the subject's free ' The three courts at Westminster — the right of doing all things not unlawful was King's Bench, Common Pleas, and E xcheq- □surped by means of proclamations. These, uer — consisting each of four or five judges, however, were always temporary, and did administered justice to the whole kingdom ; not affect to alter the established law. But the first having an appellant jurisdiction though it would be difficult to assert that over the second, and the third bein^ in a none of this kind had ever been issued in rude and in-egular times, I have not ob- served any under the kings of the Plantag- enet name which evidently transgress the boundaries of their legal prerogative. The general privileges of the nation were far more secure than those of private men. Great violence was often used by the va- rious oflficers 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 aggi'essions ; juries, through intimida- tion or ignorance, returned such verdicts as were desired by the crown ; and, in gener- al, there was perhaps little effective restraint upon the government, except in the two ar- ticles of levying money and enacting laws. The peers alone, a small body vaiying State of soci- from about fifty to eighty per- ety and law. gons, enjoyed the privileges of aristocracy ; which, except that of sitting in Parliament, were not veiy considerable, far less oppressive. AU 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 rec- ognized, must still subsist through the nec- essary inequalities of birth and wealth, we find the gentiy or principal landholders, many of them distinguished by knighthood, and all by bearing coat armor, but without any exclusive privilege ; the yeomanry, or email freeholders and farmers, a vei-y nu- great measure confined to causes affecting the crown's property-. But as all suits re- , lating to land, as well as most others, and all criminal indictments, could only be de- termined, so far as they depended upon oral evidence, by a jury of the county, it was necessaiy that justices of .issize and jail-delivery, being in general the judges , of the courts at Westminster, should travel into each countj-, commonly twice a year, in order to tiy issues of fact, so ciilled in distinction from issues of law, where the suitors, admitting all essential facts, disput- ed the rule applicable to them.* By this ' * The pleadintrs, as they are called, or written allesrations of both parties, which form the basis of a judicial inquirj-, commence with the declara- tion, wherein the plaintiff states, either specially or in some established form, according: to the na- ture of the case, that he has a debt to demand fi-om, or an injiuy to be redressed by, the defend- ant. The latter, in return, puts in his plea ; which, j if it amount to a denial of the facts alleged in the declaration, must conclude to the countr//, that is, must refer the whole matter to a jury. But if it , contain an admission of the fact, alonsr with a lesal ■ justification of it, it is said to conclude to the court ; the effect of which is to make it neccssarj- for the plaintiff to reply ; in wliich replication he may de- ny the facts pleaded in justification, and conclude to the country ; or allege some new matter in ex- planation, to show that the}' do not meet all the circumstances, concluding to the court. Either party also may demur, that is, deny that, although true and complete as a statement of facts, the dec- laration or plea is sufficient according to law to found or repel the plaintiff's suit. In the last case IG device, wliicli is as ancient as the reign of Henry II., the fundamental privilege of ti'ial by jury, and the convenience of private suit- ors, as well as accused persons, were made consistent with a 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 liad doubtless a powerful tend- ency to knit together the different parts of England, to check the influence of feudality and clanship, to make the inhabitants of dis- it becomes an issue iu law, and is determined by the judges, without the intervention of a jury ; it being a principle tliat, by demumng, the pai1y ac- knowledges the tiiith of all matters alleged on the pleadings. But in whatever stage of the proceed- ings cither of the litigants concludes to the coun- ti-y (which he is obliged to do, whenever the ques- tion can be reduced to a disputed fact), a jury must be impaimeled to decide 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, reciting that aflrrward the cause was so tried, and such a verdict return- ed, with the subsequent entrj- of the judgment it- self, fonn the record. This is merely intendad to explain the pLrn - in the text, which common readers might not clear- ly understand. The theorj' of special pleading, as it is generally called, could not be farther elucidated without lengthening this note beyond all bounds. But it all rests upon the ancient maxim, " De fac- to respondent juratores, de jure judices." Per- haps it may be well to add one observation — that in many forms of action, and those of most fre- quent occuiTence in modem times, it is not re- quired to state the legal justification on the plead- ings, but to give it in evidence on the general is- sue ; that is, upon a bare plea of denial. Iu this case the whole matter is actually in the power of the jurj'. But they are generally bound in con- science 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 liis directions, it is usual to amiul the verdict, and grant a new ti'i- al. There seem to be some disadvantages in the annihilation, as it may be called, of written plead- ings, by their reduction to an unmeaning fonn, which has prevailed iu three such important and extensive forms of action, as ejectment, general as- sumpsit, and trover ; both as it throws too much power into the hands of the juiy, and as it almost nullifies the ajipellant jurisdiction, which can only be exercised where some error is apparent on the face of the record. But great practical conveni- ence, and almost necessity, has generally been al- leged as far more than a compensation for these evils. — [1827.] [This note is left, but the last par- agi'aph is no longer so near the trath as it was, iu consequence of the alterations subsequently made by the judges in the rules of pleading.] [Chap. L tant counties better acquainted with the capital city and more accustomed to the course of government, and to impair the sph'it of provincial patriotism and animosity. The minor tribunals of each county, hun- dred, and manor, respectable for their an- tiquity and for their effect in preserving a sense of fi'cedom and justice, had in a great measure, though not probably so much as in modern 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 juiy were preseiTed. 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 jail-delivery. The chartered towns had their separate jurisdiction 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 veiy imperfect dispo- sitions for preserving the public peace, nat- urally gave rise. These were frequentlj^ perpetrated or instigated by men of superi- or wealth and power, above the conti'ol of the mere officers of justice. Meanwhile the kingdom was increasing in opulence : the English merchants possessed a large share of the trade of the north ; and a wool- en manufacture, established in different parts of the kingdom, had not only enabled the Legislature to restrain the import of cloths, but had begun to supply foreign na- tions. The population may probably be reckoned, without any material error, at about three millions, but by no means dis- tributed in the same proportions as at pres- ent ; the northern counties, especially Lan- cashire and Cumberland, being veiy iU peo- pled, and the inhabitants of London and Westminster not exceeding sixty or seven- ty thousand.* * The population for 148.5 is estimated by com- paring a sort of census iu 1378, when the inhabi- tants of the realm seem to have amounted to about 2,300,000, with one still more loose under EUzabcth, in 1588, which would give about 4,400,000 ; making some allowance for the more rapid increase in the latter period. Three millions at the accession of Henrj- VII. is probably not too low an estimate. CONSTITUTIONAL HISTORY OF ENGLAND Hen. VII.] FROM HENRY VII. TO GEORGE II. 17 Such was the political condition of Eng- land when Henry Tudor, the only living representative of the house of Lancaster, though incapable, by reason of the illegiti- macy of the ancestor, who connected him with it, of asserting a just right of inherit- ance, became master of the throne by the defeat and death of his competitor at Bos- worth, and by the general submission of the kingdom. He assumed the royal Henry VII. . , . , ,, , . •' title immediately alter his victory, and summoned a Parliament to recognize or sanction his possession. The circum- stances were by no means such as to offer an auspicious presage for the future. A subdued party had risen from the gi-ound, incensed by proscription and elated by suc- cess ; the late battle had, in effect, been a contest between one usurper and another ; and England had little better prospect than a I'enewal of that desperate and intermina- ble contention, which pretenses of heredi- tary right have so often entailed upon na- tions. A Parliament called by a conqueror might be presumed 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 Eng- land and France, and all dominions apper- taining to them, should remain in Henry VII. and the heirs of his body forever, and in none other."* Words studiously ambig- uous, which, while they avoid the assertion of an hereditary right that the public voice repelled, were meant to create a Parlia- mentary 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 specter of indefeas- ible right should stand once more in arms on the tomb of the house of York, the two houses of Parliament showed an earnest desii-e for the king's marriage with the [I now incline to rate the population somevifhat higher, 1841.] * Rot. Pari., vi., 270. But the pope's bull of dispensation for the king's marriage speaks of the realm of England as "jure haercditario ad te legit- imum in illo prsedecessoram tuorum successorem pertineus." IljTuer, xii., 294. And all Henry's own instruments claim an hereditary right, of which many proofs appear in Rymer. B daughter of Edward IV , who, if .she should bear only the name of royalty, might trans- mit an undisputed inheritance of its pre- rogatives to her posterity. This maiTiage, and the king's great vigi- lance in guarding his crown, statute for caused his reien to pass with ^^'^ security . of the suliject considerable reputation, though under a kmg not without disturbance. He '^'J'"'''"- had to learn by the extraordinaiy, though transient, success of two impostors, that his subjects were still strongly infected with the prejudice which had once over- thrown the family he claimed to represent. Nor could those who sei-ved him be exempt from apprehensions of a change of dynasty, which might convert them into attainted rebels. The state of the nobles and gently 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 secui-ity against the violence and vengeance of factions, to place the civil duty of allegiance on a just and reasonable foundation, and indirectly to cut away the distinction 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 be- ing 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 pro- cess of law, nor suffer any forfeiture or punishment ; but that every act made con- trary to this statute should be void and of no effect."* The endeavor to bind future Parliaments was of course nugatory; but the statute remains an unquestionable au- thority for the constitutional maxim, that possession of the throne gives a sufficient title to tlie subject's allegiance, and justifies his resistance of those who may pretend to a better right. It was much resorted to in argument at the time of the Revolution, and in the subsequent period. f * Stat. 11 H. 7, c. 1. t Blaclistoue (vol. iv., c. 6) has some rather per- plexed reasoning on this statute, leaning a littla toward the dcjure doctrine, and at best confound- ing moral with legal obligations. In the latter 18 CONSTITUTIONAL HISTORY OF ENGLAND [Chap. L It has been usual to speak of this reign as if it formed a great epoch in our Consti- tution ; the king having by his politic meas- ures broken the power of the barons who had hitherto -withstood the prerogative, •while the Commons had not yet risen from the humble station which they were sup- posed to have occuj)ied. I doubt, however, whether the change was quite so ))recise!y refeiTible to the time of Henry VII., and whether his policy has not been somewhat oveiTated. In certain respects, his reign is undoubtedly an era in our history. It be- gan in revolution and a change ia the line of descent. It nearly coincides, w^hich is more material, with the commencement of what is termed modem history, as distin- guished from the 3Iiddle Ages, and with the memorable events that have led us to make that leading distinction, especially the con- solidation of the gi-eat European monar- chies, among which England took a con- spicuous station. But, relatively to the main subject of our inquiiy, it is not evident that Henry YII. carried the authority of the cro'\vn 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. Fi-om this cause, or from the general intimidation, we find, as I have observed in another work, that no laws favorable to public liberty, or remedial with respect to the aggi-essions 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 ap- plied. The Commons, who had not always been so humble and abject as smatterers in history are apt to fancy, were by this time much degenerated from the spirit they had displayed under Edward IH. and Richard 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 extend. sense, whoever attends to the preamble of the act srill see that Hawkins, whose opinion Blackstone calls in question, is right ; and that he is himself WTons in pretending that " the statute of Heniy VII. does by no means command any opposition to a king de jvrc, but excuses the obedience paid to a king dc facto." The laws of Henry VII. have been high- ly praised by Lord Bacon as "deep statute of and not vulgar, not made upon the Fines, spur of a particular occa.sion for the present, but out of providence for the future, to make the estate of his people still more and more I happy, after the manner of the legislators i in ancient and heroical times." But when j we consider how very few kings or states- ; men have displayed this prospective wisdom and benevolence in legislation, we may hes- itate a little to bestow so rare a praise upon j Henry. Like the laws of all other times, , his statutes seem to have had no further ' aim than to remove some immediate mis- ] chief, or to promote 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 : j I mean the statute of fines (as one passed in the fourth year of his reign is commonly 1 called), which is supposed to have given the ' power of alienating entailed lands. But both the intention and effect of this seem ' not to have been justly apprehended, j In the first place, it is remarkable that the statute of Henry VII. is , ... Discnssion of merely a transcnpt, with very n, effect and little variation, from one of Rich- ard III., which is actually printed in most editions. It was re-enacted, as we must presume, in order to obviate any doubt, how- ever ill-grounded, which might hang upon the validity of Richard's laws. Thus van- ish at once into air the deep policy of Hen- ry VII., and his insidious schemes of lead- ing on a prodigal aristocracy to its ruin. It is surely strange, that those who have ex- tolled 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 honor of the unfortimate usurper. But Richard, in truth, had no leisure for such long-sighted projects of strengthening a throne for his posterity which he could not presei-ve for himself. His law, and that of his successor, had a different object in view. It would be useless to some readers, and perhaps disgusting to others, especially in the very outset of this work, to enter upon the history of the English law as to the pow- er of alienation. But I can not explain the Hes. FROM HENRY VII. TO GEORGE II. 19 present subject without mentioning that, by a statute in the reign of Edward I., com- monly called de donis conditionalibus, lands given to a man and the heirs of his body, with remainder to other persons, or rever- sion 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 inca- pable of forfeiture for treason or felony ; and more, perhaps, upon this account than from any more enlarged principle, these en- tails were not viewed with favor by the courts of justice. Several attempts were successfully made to relax their sti-ictness ; and finally, in the reign of Edward IV., it was held by the judges in the ftlmous 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 af- ter him of their succession, and become owner of the fee simple. Such a decision was certainly far beyond the sphere of ju- dicial authority. The Legislature, it was probably suspected, would not have consent- ed to infringe a statute which they reck- oned the safeguard of their families. The law, however, was laid down by the judg- es; and in those days the appellant juris- diction of the House of Lords, by means of which the ai-istocracy might have indignant- ly reversed the insidious decision, had gone wholly into disuse. It became by degrees a fundamental principle, that an estate in tail can be baired by a common recoveiy ; nor is it possible by any legal subtlety to deprive the tenant of this conti'ol over his estate. Schemes were, indeed, gradually devised, which to a limited extent have re- sti'ained the power of alienation ; but these do not belong to our subject. The real intention of these statutes of Richard and Henry was not to give the ten- ant in tail a gi'eater power over his estate (for it is by no means clear that the words enable him to bar his issue by levying a fine ; and when a decision to that effect took place long aftenvard (19 H. 8). it was with such difference of opinion that it was thought necessary to confirm the interpre- tation by a now act of Parliament) ; but rather, by establishing a short term of pre- scription, to put a check on the suits for re- covery of lauds, which, after times of so much violence and disturbance, were natu- rally springing up in the courts. It is the usual policy of governments to favor pos- session ; and on this princi|)le the statute enacts that a fine levied v^nth 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 libeity of alienation was neither necessaiy, nor pi'obably intended to be given.* The first two of the Tudors rarely expe- rienced opposition but when they Exactions of endeavored to levy money. Tax- U^nry vii. ation, in the eyes of their subjects, was so far from being no tyranny, that it seemed the only species worth a complaint. Heniy VII. obtained 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 innocent man led to prison or the scaffold with little attention, twice broke out into dangerous rebellions ; and as these, however arising from such immediate dis- content, were j'et a good deal connected with the opinion of Henry's usurpation and the claims of a pretendei', it was a necessa- ry policy to avoid too frequent imposition of burdens upon the poorer cliisses of the community. f He had recourse, accord- * For these observations on the statute of Fines, I am principally indebted to Reeves's History of the English Law (iv., 133), a work, especially in the latter volumes, of great research and judgment : a continuation of which, in the same spirit, and with the same qualities, would be a valuable ac- cession not only to the lawyer's, but philosopher's library. That entails had been defeated by means of a common recovery before the statute, had been remarked by fonner writers, and is indeed obvi- ous ; but the subject was never put in so clear a light as by Mr. Reeves. The principle of breaking down the statute de donis was so little established, or consistently act- ed upon, in this reign, that in II H. 7, the judges held that the donor of an estate-tail might resti-ain the tenant from sutfeiing a recovery. — Id., p. 15S, from the Year book. t It is said by the biographer of Sir Thomas More, that Parliament refused the king a subsidy in 1.502, which he demanded on account of the mar- riage of his daughter Margaret, at the advice of More, then but twenty -two years old. " Forthwith Mr. Tyler, one of the privy chamber, that was then present, resorted to the king, declaring that a beardless boy, called More, had done more harm than all the rest, for by his means all the purpose 20 CONSTITUTIONAL HISTOHY OF ENGLAND [Chap, I. ingly, to the sj'stem of benevolences, or contributions apparently voluntaiy, though in fact extorted from his richer subjects. These, having become an intolerable gi-iev- ance under Edward IV., were abolished in the only Parliament of Richard III., with sti'ong expressions of indignation. But in the seventh year of Henry's reign, when, after having with timid and parsimonious hesitation suffered the maiTiage of Anne of Brittany with Charles VIII., he was com- pelled by the national spirit to make a dem- onstration of war, he ventured to try this unfair and unconstitutional method of ob- taining aid ; which received aftenvard too much of a Parliamentaiy sanction, by an act enforcing the payment of arrears of money ■which private men had thus been prevailed upon to promise.* The statute, indeed, of Richai'd is so expressed as not clearly to for- bid the solicitation of voluntary gifts, which, of course, rendered it almost nugatoiy. Archbishop Morton is famous for the di- lemma 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 ex- penditure. Those, again, whose course of living was less sumptuous, must have gi-own rich by their economy. Either class could well afford assistance to their sovereign. This piece of logic, unanswerable in the mouth of a privy councilor, acquired the name of Morton's fork. Henry doubtless reaped gi'eat profit from these indefinite ex- actions, miscalled benevolences. But, insa- tiate of accumulating treasure, he discover- ed other methods of extortion, stUl moi-e odious, and possibly more lucrative. Many statutes had been enacted in preceding reigns, sometimes rashly or from temporaiy motives, sometimes in opposition to prevail- ing usages which they could not restrain, of which the pecuniary penalties, though ex- is dashed." This, of course, displeased Henrj-, who would not, however, he says, " iufring'e the an- cient libei-ties of that house, which would have been odiously taken." — ^Wordsworth's Eccles. Bi- ography, ii., 66. This story is also told by Roper. * Stat. 11 H. 7, c. 10. Bacon says the benevo- lence was granted by act of Parliament, which Hume shows to be a mistake. The preamble of 11 H. 7 recites it to have been "granted by di- vers of your subjects severally." and contams a provision that no heir shall be charged on account of his ancestor's promise. ceedingly severe, were so little enforced as to have lost their teiTor. These his minis- ters raked out from oblivion ; and, prosecut- ing such as could afford to endure the law's severity, filled his treasury with the dishon- orable produce of amercements and forfeit- ures. The feudal rights became, as indeed they always had been, instmmental to op- pression. The lands of those who died without heirs fell back to the crown by es- cheat. 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 juiy , summoned at the instance of the escheator, and returned into the Exchequer. 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 im- posed on granting liveiy to the king's wards on their majority. Informations for intru- sions, criminal indictments, outlawries on civil process, in short, the whole course of justice, furnished pretenses for exacting money ; while a host of dependents on the court, suborned to play their part as wit- nesses, or even as jurors, rendered it hardly possible for the most innocent to escape these penalties. Empson and Dudley are notorious as the prostitute instraments of Heniy's avarice in the later and more un- popular years of his reign ; but they dearly purchased a brief hour of favor by an igno- minious death and perpetual infamy.* The avarice of Henry VII., as it rendered his government unpopular, wliich had always been penurious, must be deemed a draw- back from the wisdom ascribed to him ; though by his good fortune it answered the end of invigorating his power. By these fines and forfeitures he impoverished and in- timidated the nobility. The Earl of Oxford compounded, by the payment of c£l5,000, for the penalties he had incurred by keep- ing retainers in liveiy ; a practice mischiev- ous and illegal, but too customary to have been punished before this reign. Even the king's clemency seems to have been influ- enced by the sordid motive of selling par- dons ; and it has been shown that he made a profit of every office in his court, and re- ceived money for conferring bishopries.! * Hah, 50-2. t Turner's History of England, iii., 628, from a EES. VIII.] FROM HENRY VII. TO GEORGE II. 21 It is asserted by early \witers, though perhaps only on conjecture, that he left a sum thus amassed, of no less than 1,800,000 pounds, at his decease. This ti-easure was soon dissipated bj^ his successor, who had recourse to the assistance of Parliament in the very first year of his reign. The for- eign policy of Henry VIII., far unlike that of his father, was ambitious and enterpris- ing. No former king had involved himself so frequently in the labyrinth of Continent- al alliances. And, if it were necessaiy to abandon that neun-ality 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 honora- ble, than the opposite policy which he pur- sued after the battle of Pavia. The cam- paigns of Heniy in France and Scotland displayed the valor of our English infantry, seldom called into action for fifty years be- fore, and conh'ibuted, with other circum- stances, to throw a luster over his reign, which prevented most of his contempora- ries 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 gov- ernment very burdensome. At his acces- sion, however, the rapacity of his father's administration had excited such imiversal discontent that it was found expedient to conciliate the nation. An act was passed in his first Parliament to coiTect the abuses that had prevailed in finding the king's title to lauds by escheat.* The same Parlia- ment repealed the law of the late reign, en- abling justices of assize and of the peace to determine all offenses, except ti'eason and felony, against any statute in force, without a jmy, upon information in the king's name.f This serious innovation had evidently been prompted by the spirit of rapacity which, probably, some honest juries had shown courage enough to Avithstand. It was a much less laudable concession to the vin- dictive temper of an injured people, seldom unwilling to see bad methods employed in manuscript document. A vast number of persons paid fines for their share hi the western rebeUion of H97, from £200 down to 20s. Hall, 486. El- lis's Letters, illustrative of English Historj*, i., 38. * 1 H. 8, c. 8. t 11 H. 7, c. 3. Rep. 1 H. 8, c. 6. punishing bad men, that Empson and Dud- ley, who might, perhaps, by sti-etching the prerogative, have incurred the penalties of a misdemeanor, were put to death on a frivolous charge of high ti-eason.* The demands made by Hemy VIII. on Parliament were considerable, ^ Taxi's de- both in frequency and amount, inanded by Notwithstanding the servility of ^^<^'"'>' ^ those times, they sometimes attempted to make a stand against these inroads upon the public purse. Wolsey came into the House of Commons in 1523, and asked for c€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. f But the sum demanded was so much beyond any precedent, that iill the independent mem- bers opposed a vigorous resistance. A com- mittee was appointed to remonstrate with the cardinal, and to set forth the impossi- bility of raising such a subsidy. It was al- leged that it exceeded all the cuiTent coin of the kingdom. Wolsey, after giving an uncivil answer to the committee, came down again to the House, on pretense of reason- ing 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 encir- * They were convicted by a jury, and afterward attainted by Parliament, but not executed for more tliau a year after the king's accession. If we may believe Holingshed, the council at Henry VIII.'s accession made restitution to some who had been wronged by the extortion of the late reign ; a sin- gular contrast to their subsequent proceedings ! This, indeed, had been enjoined by Henry VII. 's will. But he had excepted from this restitution " what had been done by the course and order of our laws ;" which, as Mr. Astle observes, was the common mode of his oppressions. t Lord Herbert inserts an acute speech, which he seems to ascribe to More, arguing more ac- quaintance with sound principles of political econ- omy than was usual in iJie supposed speaker's age, or even in that of the writer. But it is more probable that this is of his own invention. He has taken a similar libertj' on another occasion, throw- ing his own broad notions of religion into an imag- inary speech of some unnamed member of the Commons, though manifestly unsuited to the char- acter of the times. That More gave satisfaction to Wolsey by his conduct in the chair, appears by a letter of the latter to the king, in State Papers, temp. H. VIII., p. 124. 22 CONSTITUTIONAL HISTOHY OF ENGLAND [Chap. L cled the hauglitiest 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 hasted fifteen or sixteen days. A considerable part of the Commons appears to have consisted of the king's household officers, whose influ- ence, with the utmost difficulty, obtained a gi'ant much inferior to the cardinal's requi- sition, and payable, by instalments, in four years. But Wolsey, greatly dissatisfied with this imperfect obedience, compelled the people to pay up the whole subsidy at once.* * Roper's Life of More. HaU, 6.156, 672. This chronicler, who wrote under Edward Yl., is our best witness for the events of Henry's reign. Grafton is so literally a copjist from him, that it ■was a great mistake to republish this part of liis chronicle in the late exjjensive, and therefore in- complete 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, thousrb valuable, is later than Hall. Wolsey, the latter observes, gave offense to the Commons, by descanting on the wealth and luxury of the nation, " as though he had repined or dis- claimed that any man should fare weU, 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 Siu"- rey (soon after Duke of Norfolk), at that time the king's lieutenant in the north. "Please it your good lordships to understand, that sithence the beginning of the Parliament there hath been the greatest and sorest hold in the Low- er House for the pajTnent of two shillings of the pound that ever was seen, I think, in any Parha- ment. This matter hath been debated and beaten, fifteen or sixteen days together. The liighest ne- cessity alleged on the king's behalf to us that ever was heard of; and, on the contrary, the highest poverty confessed, as well by knights, esquires, and gentlemen of everj- quarter, as by the com- moners, 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 gentle- men 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 conscience. Tims hanging this matter, yesterday the more part be- ing the king's servants, gentlemen, were there as- sembled ; and so they, being the more part, willed and gave to the king two shiliiuss of the pound of goods or lands, the best to be taken for the king. AH lands to pay two shillings of the pound for the laitj", to the highest. The goods to pay two shil- lings of the pound, for twenty pound upward ; and from forty shillings of goods to twenty pound, to No Parliament was assembled for nearly seven years after this time. Wol- Illegal exac. sey had already resorted to more ,„ 1552 arbitrary methods of raising mon- a"*! '^25. ey by loans and benevolences.* The j'ear before this debate in the Commons, he bon'owed twenty thousand pounds of the city of London; yet so insufficient did thai appear for the king's exigencies, that, with in two months, commissioners were ap pointed throughout the kingdom to sweai every man to the value of his possessions, requiring a ratable part according to such declaration. The clergy, it is said, were expected to contribute a fourth; but I be- lieve that benefices above ten pounds ia yearly value were taxed at one third. Such unparalleled violations of the clearest and most important privilege that belonged to Englishmen excited a general apprehen- sion.f Fresh commissioners, however, 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 thmk, there was nev- er such a president seen before this time. I be- seeke Almighty God, it may be well and peacea- bly levied, and surely payd unto the king's grace, without grudge, and especially without losing 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 }evy this money among the king's sub- jects, I think, shall have no little business about the same." — Strj-pe's Eccles. Memorials, vol. i., p. 49. This is also printed in Ellis's Letters illustra- tive of English Historj-, i., 220. * I may notice here a mistake of Mr. Hume and Dr. Lingard. They assert Henry to have receiv- ed 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 RufFliead's table of con- tents, though not in the body of his volume ; and the act is of course printed at length in the great edition of the statutes. That which probably by its title gave rise to the error, 6 H. 8, c. 13, has a different object. t Hall, 645. This chronicler says, the laitj- were assessed at a tenth part. But this was only so for the smaller estates, namely, from i20 to £300 ; for from £300 to £1000, the contribution demand- ed was twenty marks for each £100, and for an estate of £1000 two hundred marks, and so ia proportion upward. — MS. Instructions to commis- sioners, penes auctorem. This was, "upon suf- ficient promise and assurance, to be repaid unto them upon such grants and contributions as shall be given and granted to his grace at liis next Par- Hen. VIII.] FROM HENRY VII. TO GEORGE IL 23 were appointed in 1525, with insti'uctions | demand Wolsey made in person to the to demand the sixth part of eveiy man's mayor and chief citizens of London. They substance, payable in money, plate, or jew- attempted to remonstrate, but were wai-ned els, according to the last valuation.* This to beware, lest " it might fortune to cost liament." — lb. " Aiid they shall practice 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 persuade and in- duce them mito ; showing unto them that, for the sure payment thereof they shall have writings de- livered 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 foiTU of a minute to be shown unto them by the said com- missioners, 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 re- pay unto our trusty and well-beloved subject, A. B., the sum of , which he hath lovingly ad- vanced unto us by way of loan, for defense 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 152-5, which I find in another manuscript letter. * 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 152.5, rather than that of 1522 ; it being dated on the 10th of April, which appears 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 fii'st commission, being of die fourteenth year of the king's reign, must have sat later than Easter, 1522. He infoiTOS the cardinal that, from twenty pounds upward, there were not twenty in the county of Norfolk who bad not consented. " So that I see great likelihood that this grant shall be much more than the loan was." It was done, however, veiy reluctantly, as he confesses ; " as- Buring your grace tliat they have not granted the same without shedding of many salt tears, only for doubt how to find money to content the king's high- ness." The resistance went further than the duke thought fit to suppose ; for in a veiy short time the insurrection of the common people took jjlace in Suffolk. In another letter from liim 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 anived. The pretext was the king's intention to lead an army into France. Warham wrote more freely than the Duke of Nor- folk as to the popular discontent, in a letter to Wolsey, dated April 5. " It hath been showed me in a secret maimer 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 payments as long as some liveth, and that they had better die than to be tlius continually handled, reckonmg 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 resuscitated, and revived in the minds of the people ; for the loan is not repaid to them upon the first receipt of the grant of Parlia- ment, as it was promised tliem by the commission- ers, showing them the king's grace's instructions, containing the same, signed with liis grace's own hand in summer, that they fear not to speak, that they be continually beguiled, and no promise is kept unto tliem ; and thereupon some of them sup- pose 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 contraiy. And generally it is reported unto me, that for the most part eveiy 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 anj-wise give at oth- er 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 liath been showed me secretly, have wished openly that the French king were at his liberty again, so as there were a good peace, and the king should not attempt to win France, the winning whereof should be more chargeful to England than profitable, and the keeping tliereof much more chargeful than the winning. Also it hath been told me secretly that divers have recounted and repeat- ed 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 captains, and little or nothing in comparison of liis costs hatli 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 expedient." The archbishop goes on to obsei-ve, rather oddly, that " he would that the time had suffered that this practicing with the people for so gi-eat sums might have been spared till the cuckow 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 pay- ment as was required of them, and their unwilling- ness 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 tliis sliire twentj' years and above, and as yet I 2i CONSTITUTIOXAL HISTORY OF ENGLAND [Chap. L some their heads." Some were sent to prison for hasty words, to which the smart of injmy excited them. The clergy, from whom, according to usage, a larger meas- ure of conh'ibution was demanded, stood upon their privilege to gi-ant their money only in convocation, and denied the right of a king of England to ask any man's money without authoritj' of Parliament. The rich and poor agi'eed in cm-sing the cardinal as the subverter of their laws and liberties, and said, " If men shoidd give their goods by a commission, then it would be worse than the taxes of France, and England should be bond, and not fi-ee."* Nor did their discontent terminate in complaints. The commissioners met with forcible op- position in several counties, and a serious insuiTection broke out in Suffolk. So men- acing a spirit overawed the proud tempers of Henry and his minister, who found it necessary, not only to pardon all those con- cerned in these tumults, but to recede alto- gether, upon some frivolous pretexts, from the illegal exaction, revoking the commis- ^ sions, and remitting all sums demanded un- der them. They now resorted to the more specious request of a voluntary benevolence. This, also, the citizens of London endeav- ored to repel, by alleging the statute of Richard III. But it was answered that he was a usurper, whose acts did not oblige a lawful sovereign. It does not appear whether or not Wolsey was more success- ful in this new scheme ; but, generally, rich individuals had no remedy but to compound with the government. No veiy material attempt had been made since the reign of Edward III. to levy a gen- eral imposition without consent of Parlia- ment, and in the most remote and irregular times it would be difficult to find a prece- dent for so universal and enormous an ex- action ; since tallages, however arbiti-ary, were never paid by the barons or fi-eehold- have not seen men but would be conformable to reason, and would be induced to good order, till this rime ; and wliat shall cause them now to fall into these willful and indiscreet ways, I can not tell, except poverty and decay of substance be the cause of it." * Hall, 696. These expressions, and number- less otliers might be found, show the fallacy of Hume's hastv^ assertion, that the writei's of the six- teenth centurj- do not speak of our own government as more free than that of France. ' ers, nor by their tenants ; and the aids to which they were liable wei-e restricted to particular cases. If Wolsey, therefore, { could have procured the acquiescence of I the nation under this yoke, there would / probably have been an end of Parliaments for all ordinary purposes ; though, like the States General of France, they might still be convoked to give weight and security to great innovations. We can not, indeed, doubt that the unshackled condition of his friend, though rival, Francis I., afforded a » mortifying conti'ast to Henry. Even un- der 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 sub- jects had almost forgotten that they ever possessed any. But the courage and love of freedom natural to the English com- mons, speaking in the hoarse voice of tu- mult, though very ill supported by their su- periors, preserved us in so great a peril.* If we justly regard with detestation the memoiy of those ministers who Acu of Pariia- have aimed at subverting the J^e"kin""fro'm° liberties of their countiy, we h's debts, .shall scarcely approve the partiality of some modern historians toward Cardinal Wolsey; a partiality, too, that contiadicts 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 or- der and to the laity, his fidi had long been secretly desired bj' the nation and contrived by his adversaries. His generosity and mag- nificence seem rather to have dazzled suc- ceeding ages than his own. But, in fact, his best apology is the disposition of his master. The latter j-ears of Heniy's reign were far more t^iTannical than those during which he listened to the counsels of Wol- sej'; and though this was pi-incipally 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 spiiit animated the Parliament which met at the era of Wolsey's fall, it might have prompted his impeachment for gi'oss violations of hberty. But these were not the offenses that had forfeited his * Hall, 699. Hek. VIII.] FROM HENUY Vn. TO GEOEGE II. 25 prince's favor, or that they dared bring to justice. They were not absent, pei-haps, from the recollection of some of those who took a poi-t in prosecuting the fallen minis- ter. I can discover no better apology for Sir Thomas More's participation in im- peaching Wolsey on articles so frivolous that they have served to redeem his fame with later times, than his knowledge of weightier offenses against the common weal which could not be alleged, and espe- cially tlie commissions of 1525.* But, in truth, this Pai-liament showed little outward disposition to object any injustice of such a kind to the cardinal. They professed to take upon themselves to give sanction to his proceedings, as if in mockery of their own and their countiy's liberties. They passed a statute, the most exti-aordinary, perhaps, of those strange times, wherein " they do, for themselves and all the whole bodj' of the realm which they represent, freely, liberal- ly, and absolutely give and gi-ant unto the king's highness, by authority of this present Parliament, all and eveiy 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 gi-ace at any time heretofore advanced or paid by way of ti'ust or loan, either upon any letter or letters under the king's privy seal, gen- eral or particular, letter missive, promise bond, or obligation of repayment, or by any taxation or other assessing, by virtue of any commission or commissions, or by any other mean or means, whatever it be, heretofore passed for that purpose. "f This extreme * The word impeaclimeut is not very accurately applicable to these proceedings against Wolsey, since the articles were first presented to the Upper House, and sent down to the Commons, wliere Cromwell so ably defended his fallen master that nothing was done upon them. " Upon this honest beginning," says Lord Herbert, " Cromwell obtain- ed his first reputation." I am disposed to conject- nre, from Cromwell's character and that of the House of Commons, as well as from some passages of Henr\ 's subsequent behaviour toward the cardi- nal, that it was not the king's intention to follow up this prosecution, at least for the present. This also I find to be Dr. Lingard's opinion. t Rot. Pari., N-i., 164. Burnet, Appendix, No. 31. " 'When this release of the loan," says Hall, " was known to the conmions of the realm, Lord ! so they grudged and spake ill of the whole Parliament ; for almost every man counted in his debt, and reck- oned surely of the pa^Tiient of the same, and there- fore some made their wills of the same, and some servility and breach of trust naturally excit- ed loud murmurs ; for the debts thus re- leased had been assigned over by many to theii- own creditors, and having all the secu- rity both of the king's honor and legal obli- gation, were reckoned as valid as any other property. It is said by Hall, that most of this House of Commons held offices imder the crown. This illaudablo precedent was rememl)ered in 1544, when a similar act passed, releasing to the king all moneys bor- rowed by him since 1542, with the addition- al provision that, if he should have already discharged any of these debts, the party or his heirs should repay his majesty.* Henry had once more recourse, about 1545, to a general exaction, mis- . , 1 rr-ii benevo- called benevolence. The coun- lence again cil's instructions to the commis- sioners employed in levj-ing it leave no doubt as to its compulsory character. They Avere directed to incite aU 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 wei-e of less value than 40s., or whose chattels were less than <£15. It is intimated 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 movable goods. Thej' are to sum- mon but a few to attend at one time, and to commune with every one apart, " lest some one uni'easonable man, among so many, forgetting his duty towaixl God, his sover- eign lord, and his counti-y, 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 be- havior," 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 pretense which the connnissioners should deem unfit to be allowed, then, after other did set it over to other for debt ; and so many men liad loss by it, which caused them sore to mumiur, but there was no remedy." — P. 767. * Stat. 33 H. 8, c. 12. I find in a manuscript, which seems to have been copied from an original in the Exchequer, that tlie moneys thus received by way of loan in 1543 amomited to £110,147 \5s. 8d. There was also a sum called derolion money, amounting only to £1093 8,s\ 3(/., levied in 1544, "of the devotion of his highnesse's subjects for De- fense of Christendom, against the Turk." 26 CONSTITUTIONAL HISTORY OF ENGLAND [Chap. I. failure of pei"suasions and reproaches for in- gratitude, they were to command his at- tendance before the privy council, at such time as they should appoint, to whom they were to certify his behavior, enjoining him silence in the mean time, that his evil exam- ple might not cornipt the better disposed.* It is only through the accidental publica- tion of some family papers that we have be- come acquainted with this document, so curiously illustrative of the government of Henry Ylll. From the same authority may be exhibited a particular specimen of the consequences that awaited the refusal of this benevolence. One Richard Reed, an alderman of London, had stood Oppressive ' treatment alone, as is Said, among his fellow- citizens, in refusing to contribute. It was deemed expedient not to overlook this disobedience ; and the course adopted in pursuing it is somewhat remarkable. The English army was then in the field on the Scots border. Reed was sent down to sene as a soldier at his own charge ; and the general, Sir Ralph Ewer, received inti- mations 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 stur- dy disobedience. " Finally," the letter con- cludes, " you must use him in all things ac- cording to the sharpe disciplyne militar of the northei-n wars."f It is natural to pre- sume that few would expose themselves to the treatment of this unfortunate citizen ; and that the commissionei-s, whom we find appointed two years afterward in eveiy county, to obtain from the king's subjects as much as they would willingly give, if * Lodsre's Illustrations of British Historj-, i., 711. Strype's Eccles. Memorials, Appendix, n. 119. The sums raised from different counties for this benevolence afford a sort of criterion of their relative opulence. Somerset pave X6807 ; Kent, £6471 ; Suffolk, £4512; Norfolk, £4046; Devon, £4527; Essex, £5051 ; but L ancaster only £660, and Cum- | berland, £574. The whole produced £119,581 7s. 6d., besides an-ears. In Hajnies's State Papers, ' p. 54, we find a curious minute of Secretary Paget, 1 containing reasons why it was better to get the money wanted by means of a benevolence than ] through Parliament. But he does not hint at any difficulty of obtaining a Parliamentary' grant. | t Lodee, p. 80. Lord Herbert mentions this , storj-, and obsei-ves, tliat Reed ha\-ing been taken ' by the Scots, was compelled to pay much more for nis ransom than the benevolence required of him. , they did not always find perfect readiness, had not to complain of many peremptory denials.* Such was the security that remained against arbitrajy taxation under Severe and the two Henries. Were men's ""J"»' cijtion for lives better protected from unjust treason, measures, and less at the mercy of a jealous court ? It can not be necessaiy to expati- ate very much on this subject in a work that supposes the reader's acquaintance 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 sanguinaiy injustice that have cast so deep a shade over the memory of these princes. The Duke of Clarence, attainted in the reign of his brother Edward IV., Earlof left one son, whom his uncle re- Warwick, stored to the title of Earl of Warwick. This boy, at the accession of Henry VII., being then about twelve years old, was shut up in the Tower. Fifteen years of captiv- ity had elapsed, when, if we trust to the common story, having unfortunately be- come acquainted with his fellow-prisoner Perkin Warbeck, 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 sur- mised, with as much likelihood as the char- acter 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 condition of his daughter's mamage with the Prince of Wales, and the best means of secui-ing their inheritance. War- wick accordingly was brought to trial for a conspiracy to overturn the government ; which he was induced to confess, in the hope, as we must conceive, and perhaps with an assurance, of pai'don, and was im- mediately executed. The nearest heir to the house of York, after the queen and her children, and Earl of the descendants of the Duke of Clar- Suffolk, ence, 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 bat- tle of Stoke. Sufiblk, having killed a man in an affray, obtained a pardon, which the king compelled him to plead in open court * RjTner. xv., 84. These commissions bear date 5th Jan., 1546. Hen. VIIL] FROM HENRY VII. TO GEORGE II. 27 at his arraignment. This laudable impar- tialitj' is said to have given him ofiense, and provoked his flight into the Netherlands ; whence, being a man of a turbulent dispo- sition, and partaking in the hati'ed of his family towai-d the house of Lancaster, he engaged in a conspiracy with some persons at home, which caused him to be attainted of treason. Some time aftei-ward, the Arch- duke Philip, having been shipwrecked on the coast of England, found himself in a sort of honorable detention at Henry's court. On consenting to his departure, the king re- quested him to send over the Earl of Suf- folk; and Philip, though not insensible to the breach of hospitality exacted from him, was content to satisfy his honor by obtain- ing a promise that the prisoner's life should be 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 sentence against Suffolk. Though this was an evi- dent violation of the promise in its spirit, yet Henry VHI., after the lapse of a few years, with uo new pretext, caused him to be executed. The Duke of Buckingham, representing Duke of tlie ancient family of Stafford, Buckingham, and hereditaiy high constable of England, stood the first in rank and conse- quence, perhaps in riches, among the no- bility. But being too ambitious and ari'o- gant for the age in which he was born, he drew on himself the jealousy of the king and the resentment of Wolsey. The evi- dence, on his trial for high treason, was al- most entirely confined to idle and vaunting language, held with servants who betra3"ed his confidence, and soothsayers whom he had believed. As we find no other persons charged as parties with him, it seems man- ifest that Buckingham was innocent of any real conspii'acy. His condemnation not only gratified die cardinal's revenge, but answer- ed a veiy constant purpose of the Tudor government, that of intimidating the gi-eat families, from whom the preceding dynasty had experienced so much disquietude.* * Hall, 622. Hume, who is favorable to Wolsey, says, " There is uo reason to think the sentence against Buckinghain unjust." But no one who reads the trial will find any evidence to satisfy a reasonable mind ; and Hume hunself soon after adds, that his crime jjroceeded more from indis- The execution, however, of Suffolk was at least not contraiT to law : and ' INew treason even Buckingham was attainted created by on evidence which, according to the tremendous latitude with which the law of treason had been construed, a court of justice could not be expected to disre- gard. But after the fall of Wolsey, and Henry's breach with the Roman See, his fierce temper, strengthened by habit and exasperated by resistance, demanded more constant supplies of blood ; and many per- ished by sentences which wc can hardly pre- vent our.selves from considering as illegal, because the statutes to which they might be conformable seem, from their temporary dm-ation, their violence, and the passiveness of the Parliaments that enacted them, rather like arbiti-ary invasions of the law than alterations of it. By an act of 15.34, not only an oath was imposed to maintain the succession in the heirs of the king's second marriage, in exclusion of the Prin- cess Mary, but it was made high treason to deny that ecclesiastical supremacy of the crown, which, tUl about two years before, no one had ever ventured to assert.* Bish- op Fisher, the most inflexibly „ 1 1 /- 1 1 Executions honest churchman who filled a or Fisher and high station in that age, was be- headed for this denial. Sir Thomas More, whose name can ask no epithet, underwent a similar fate. He had offered to take the oath to maintain the succession, which, as he justly said, the Legislature was compe- tent to alter ; but prudently avoided to give cretion than deliberate malice. In fact, the con- demnation of this great noble was owing to Wol- sey's resentment acting on the savage temper of Henry. * [25 H. 8, c. 22. This is not accurately stated. This act does not make it treason to deny tlie eccle- siastical supremacy, which is not hinted in any part of it ; but makes a refusal to take the oath to maintain the succession in the issue of the king's man-iage with Anne Boleyn misprision of treason ; and on this More and Fisher, who scnipled the preamble to the oath, denying the pope's right of dispensation, though they would have sworn to the succession itself, as a legislative enactment, were convicted and imprisoned. But a siibseqiient stat- ute, 26 H. 8, c. 13, made it high treason to wish by words to depinve the king of his title, name, or dignitj-; and the appellation, .Supreme Head, being part of this title, not only More and Fisher, but several others, suffered death on this construction. See this fully explained in the 27th volume of the ArcliKologia, by Mr. Bruce. 184.').] 28 COXSTITUTIOXAL HISTORY OF ENGLAND [Chap. I. an opinion as to the supremacy, till Rich, solicitor-general, and afterward chancellor, elicited, in a private conversation, some ex- pressions which were thought sufficient to bring him withiu the fangs of the recent statute. A considerable number of less distinguished persons, chiefly ecclesiastical, were aftenvard executed by virtue of this law. The sudden and harsh innovations made by He my in religion, as to which every fir- tifice of concealment and delay is required, his desti'uction of venerable establishments, his tyranny over the recesses of the con- science, excited so dangerous a rebellion in the north of England, that his own general, the Duke of Norfolk, thought it absolutely necessaiy to employ measures of concilia- tion.* The insurgents laid down their arms, on an unconditional promise of amnesty. But another rising having occurred in a dif- ferent quarter, the king made use of this pretext to put to death some persons of su- perior rank, who, though they had, volimta- rily or by compulsion, partaken in the first rebellion, had no concern in the second, and to let loose mihtary law upon their follow- ers. 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 * Several letters that passed between the coun- cil and Duke of Noiiblk (Hardwicke State Papers, i., 28, &c.) teud to confirm what some historians have hinted, that he was suspected of leaning too favorahly toward the rebels. The king was most nuwilliug to grant a free pardon. Xorfolk is told, " If you conld, by any good means or possible dex- terity, reserve a very few persons for punislmients, you should assnredlj' administer the greatest pleas- ure to his highness tliat could be imagined, and much iu the same advance your own honor." — P. 32. He must have thought himself in danger from some of these letters, which indicate the king's distrast of him. He had recommended the em- plo\niient of men of high rank as lords of the marches, instead of the ratlier inferior persons whom the king had lately chosen. This called down on him rather a wann reprimand (p. 39); for it was the natural policy of a despotic court to restrain the ascendency of great families ; nor were there wanting veiy good reasons for this, even if the public weal had been the sole object of Henry's council. See, also, for the subject of this note, the State Papers, Hen. VIII., p. 518, et aUbi. They contain a good deal of interesting matter as to the northern rebellion, whicli gave Henrj- a pretext for great severities toward the monasteries iu that part of England. were, some real conspirators among those who suffered on the scaffolds of Henry. Yet in the proceedings against the Count- ess of Salisbury, an aged woman, but ob- noxious as the daughter of the Duke of Clarence and mother of Reginald Pole, an active instrument of the pope in fomenting rebellion* against the abbots of Reading and Glastonbuiy, and others who were implica- ted in charges of treason at this period, we find so much haste, such neglect of judicial forms, and so blood-thirsty a determination 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 Cromwell, a man not destitute ^ of liberal qualities, but who is liable to the one great reproach of having obeyed too implicitly a master whose commands were crimes, asked of the judges whether, if Parliament should condemn a man to die for treason without hearing him, the attain- der could ever be disputed. They answer- ed that it was a dangerous question, and that Parliament should rather set an exam- ple to inferior courts by proceeding accord- ing to justice. But being pressed to reply by the king's express commandment, they said that an attainder in Parliament, wheth- er the party had been heard or not in his defense, 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.f But men prone to remark all that seems an appropriate retri- bution of Providence, took notice, that he, Avho had thus solicited the interpreters of the law to sanction such a violation of natu- * Pole, at his own solicitation, was appointed legate to the Low Countries in 1337, with the sole object of keeping alive the flame of the northern rebellion, and exciting foreign powers, as well as the English nation, to restore religion by force, if not to dethrone Henry. It is difBctUt not to sus- pect that he was influenced by ambitious views in a proceeding so treasonable, and so httle in con- formity with his polished manners and temperate life. Philips, his able and artful biogi-apher, both proves and glories in the treason. — Life of Pole, sect. 3. t Coke's 4th Institute, 37. It is, however, said by Lord Herbert and others, that the Countess of Salisbuiy and the Marchioness of Exeter were not heard in their defense. The acts of attainder a?ainst them were certainly hurried through Par- liament, but whether without hearing the parties does not appear. Hen. VIII.] FROM HENRY VII. TO GEORGE II. 29 ral justice, was himself its earliest exam- ple. In the apparent zenith of favor, this able and faithful minister, the king's vicege- rent in his ecclesiastical supremacy, and re- cently created Earl of Essex, fell so sud- denly, and so totally without offense, 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 CromweU had rec- ommended, alienated his selfish temper, and inclined his ear to the whisperings of those courtiers who abhoiTed the favorite and his measures. An act attainting him of trea- son and heresy was hurried through Parlia- ment, without hearing him in his defense.* 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 inen unheard, by means of an act of attainder, was follow- ed in the case of Dr. Barnes, burned not long afterward for heresy. The Duke of Norfolk had been, through- Puke of 0"*^ Henry's reign, one of his most Norfolk, confidential ministers. But as the king approached his end, an inordinate jeal- ousy of great men, rather than mere ca- price, appears to have prompted the reso- lution of destroying the most conspicuous family in England. Norfolk's son, too, the Ear! of Surrey, though long fi favorite with * Burnet observes that Craiimer was absent the first day the bill was read, 17th of June, 1540 ; and by his silence leaves the reader to infer that he was so likewise on the 19th of ,Iuno, when it was read a second and third time. But this, I fear, can not be asserted. He is marked in the journal as present on the latter day ; and there is the follow- ing enti-y: " Hodie lecta est pro secuudo et tertio, biUa attincturaa Thomae Comitis Essex, et communi omnium procerum tunc praeseutium concessu, ne- mine discrepante, expcdita est." And at the close of the session, we find a still more remarkable tes- timony to the unanimity of Parliament, in the fol- lowing words : " Hoc animadveitendum est, quod in hac sessione cum proceres darent sufFragia, et dicerent sententias super actibus praedictis, ea erat Concordia et sententiarum confonnitas, ut singuli iis et eonim singulis asseuserint, nemine discrep- ante. Thomas de Soulemont, Cleric. Parliament- orum." As far, therefore, as entries on the jour- nals are evidence, Cranmer was placed in the pain- ful and humiliating predicament of voting for the death of his innocent friend. He had gone as far as he dared in writing a letter to Henry, which might be construed into an apology for Cromwell, though it was full as much so for himself. the king, possessed more talents and re- nown, as well as a more haughty spirit, than was compatible with his safety. A sti'ong party at court had always been hos- tile 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 sufficed to take away the life of the noblest and most accomplished man in England. Surrey's treason seems to have consisted chiefly in quartering the ro3'al arms in his escutch- eon; and this false heraldiy, 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 le- gal murders of this reign) was passed with mucli haste, and perhaps irregularly ; but Henry's demise ensuing at the instant, pre- vented the execution of Norfolk. Continu- ing 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 fe- rocity, as we bestow most of our ^ admiration on Sir Thomas Rlore, so we reserve our gi'eatest pity for Anne Bo- leyn. Few, very few, have in any age hesi- itated to admit her innocence.* But her dis- * Buniet has taken much pains with the subject, and set her iimocence in a very clear light (i., 197, and iii., 114. See, also, Strype, i., 280, and Ellis's Letters, ji., 5-2). But Anne had all the failings of a vain, weak woman, raised suddenly to greatness. She behaved with unamiable vindictiveness toward Wolsey, and perhaps (but this worst charge is not fully authenticated) exasperated the king against More. A remarkable passage in Cavendish's Life of Wolsey, p. 103, edit. 1667, strongly displays her indiscretion. A late writer, whose acuteness and industry would raise him to a very respectable place among our historians, if he could have repressed the invet- erate partiality of his profession, has used every oblique artifice to lead his readers into a belief of Anne BoleJ^l'3 guilt, while he affects to hold the balance, and state both sides of the question with- out determining it. Thus he repeats what he must have known to be the strange and extrava- gant lies of Sanders about her birth ; without vouch- ing for them indeed, but without any reprobation of their absurd malignity. — Lingard's Hist, of Eng- land, vi., 153 (8vo edit). Thus he intimates that " the records of her trial and conviction have perish- ed, perhaps by the hands of those who respected 30 CONSTITUTIONAL HISTORY OF ENGLAIS'D [Chap. I. cretion was by no means sufficient to pre- serve her steps on that dizzy height, which she had ascended with more eager ambition than feminine delicacy could approve. Hen- ry was probably quicksighted enough to perceive that he did not possess her affec- tions, and his own were soon ti'ansfeiTed to another object. Nothing in this detesta- ble reign is worse than her ti'ial. She was indicted, pai'tly on the statute of Edwai'd III., which, by a just, though rather tech- nical 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 preservation of the suc- cession, which attached the same penalties to any thing 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 interpi-etation. 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 her memory," p. 316, though the evidence is given by Bui-net ; and the record (in the technical sense) of a trial contains nothing from which a party's gnilt or innocence can be inferred. Thus he says that those wlio were executed on tlie same charge with the queen, neither admitted nor denied the offense for which tbey suffered ; thougli the best informed writers assert that Norris constantly de- clared the queen's innocence and his own. Dr. Lingard can hardly be thought serious when he takes credit to himself, in tlie commencement of a note at the end of the same volume, for not "rendering his book move interesting, by repre- senting her as an innocent and injured woman, falling a victim to the mti-igues of a religious fac- tion." 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 stj-le of a judge who can hardly bear to put for a moment the possibility of a pris- oner's innocence. I regi-et very much to be compelled to add the name of Mr. Sharon Turner to those who have countenanced the supposition of Anne Bolej-n's guilt. But Mr. Turner, a most worthy and pains- taking man, to whose earlier writings our literature is much indebted, has, in his historj' 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 be- longed. Odit damnatos. Perhaps he is the first, and wiU be the last who has defended the attainder of Sir Thomas More. A verdict of a jurj', an as- sertion of a statesman, a recital of an act of Par- liament, are, with him, satisfactorj- proofs of the most improbable accusations against the most blameless character. affixed to her offense, Anne was induced to confess a pre-contract with Lord Percy, on which her mamage with the king Avas an- nulled by an ecclesiastical sentence, without awaiting its certain dissolution by the ax.* Henry seems to have thought his honor too much sullied by the infidelity of a lawful wife. But for this destiny he was yet re- sen-ed. I shall not impute to him as an act of tyranny the execution of Catharine Howard, since it appears probable that the licentious habits of that young woman had continued after her man'iage ;f and though we might not, in general, applaud the ven- geance of a husband who should put a guilty wife to death, it could not be expected that Henry VHI. should lose so reasonable an opportunity of shedding blood. t It was af- * The Lords pronounced a singular sentence, that she should be bui-ned or beheaded at the king's pleasure. Bumet says, the judges complained of this as unprecedented. Perhaps, in strictness, the king's right to alter a sentence is questionable, or rather would be so, if a few precedents were out of the way. In high treason committed by a man, the beheading was part of the sentence, and the king only remitted the more cruel preliminaries. Women, till 1T91, were condemned to be burned. But the two queens of Henry, the Countess of Salis- bury, Lady Rochford, Lady Jane Grey, and, in later times, Mrs. Lisle, were beheaded. Poor Mrs. 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 Somer- set and Lord Audlej-. I know not why the latter obtained this favor ; for it had been refused to Lord Stourton, hanged for murder under Mary, as it was afterward to Earl Ferrers. [t The letters published in State Papers, temp. Hen. VIII., vol. i., p. 689. et post, by no means in- creases this probabiUt)' ; Catharine Howard's post- nuptial guilt must remain verj- questionable, which makes her execution, and that of others who suf- fered with her, another of Henr3''s murders. There is too much appearance that Cranmer, by the king" a order, promised that her life should be spared, with a view of obtaining a confession of a pre-contract with Derham. 1B45.] I It is often difficult to understand the grounds of a Parliamentary attainder, for which any kind of evidence was thoaght sufficient ; and the strong- est proofs against Catharine Howard undoubtedly related to her behavior before mamage, wliich could be no legal crime. But some of the deposi- tions extend further. Dr. Lingard has made a curious obser\'ation on this case. " A plot was woven by the industry of the Reformers, which brought the yomig queen to the scaffold, and weakened the ascendency of the reigning party," p. 407. This is a verj- strange as- sertion ; for he proceeds to admit her ante-nuptial Hen. VIII.] FROM HENRY VII. TO GEORGE 11. 31 ter the execution of this fifth wife that tho celebrated law was enacted, whereby any woman whom the king should maiTy as a virgin incurred the penalties of treason if she did not previously reveal any failings that had disqualified her for the service of Diana.* These Parliamentary attainders, being in- Fresh Stat- tended rather as judicial than leg- utes enact- jslativo proceedings, were viola- ing the pen- „ , . . . , altiesof tions 01 reason and justice m the treason. application of law. But many gen- eral enactments of this reign bear the same character of servility. New political offens- es were created in every Parliament, against which the severest penalties were denounc- ed. The nation had scai'cely time to rejoice in the termination of those long debates be- tween the houses of York and Lancaster, when the king's divorce, and the consequent illegitimacy of his eldest daughter, laid open the succession to fresh questions. It was needlessly unnatural and unjust to bastard- ize the Princess Mary, whose title ought rather to have had the confirmation of Parliament. But Heniy, 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 cliildren by Anne or any subsequent wife. Any person disputing the lawfulness of the king's second marriage might, by the Bort 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, perliaps, have been treasonable to assert the Princess Elizabeth's legitimacy. The same punishment was enacted against such as should marry without license under the great seal, or have a criminal inter- course with, any of the king's children guilt, which, indeed, she is well known to have confessed, and does not give the slightest proof of any plot. Yet, he adds, speaking of the queen and Lady Rocliford, " I fear [i. e., wish to insinuate] bothwere sacrificed to the manesof Anue Boleyn." * Stat. 26 H. 8, c. 13. It may be here observed, that the act attainting Catharine Howard of treason proceeds to declai'e that the king's assent to bills by commission under the great seal is as valid as if he were personally present, any custom or use to the contrary notwith- standing.— 33 H. 8, c. 21. This may be presumed, tlierefore, to be the earliest instance of the king's passing bills in tliis manner. " lawfully born, or othenvise commonly re- puted to bo his children, or his sister, aunt, or niece."* Henry's two divorces had CT'eated an un- certainty as to the line of succes- Art giving' sion, which Parliament endeav- fj'„"'s'''thr ored to remove, not by such con- f^fcc of law, stitutional provisions, in concurrence with the crown, as might define the course of in- heritance, but by enabling the king, on fail- ure of issue by Jane Seymour, or any oth- er lawful wife, to make over and bequeath tho kingdom to any persons at his pleasure, not even reserving a preference to the de- scendants of former sovereigns, f By a sub- sequent statute, the Princesses IVIary and Elizabeth were nominated in the entail, af- ter the king's male issue, subject, however, to such conditions as he should declare, by non-compliance with which their right was to cease. t This act still left it in his pow- er 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, de- scended from his elder sister Margaret. In surrendering the regular laws of the monai'chy to one man's caprice, this Par- liament 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 injuiy 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. § Such a provision not only tended to annihi- late the authority of a regency, and to ex- pose the kingdom to a sort of anarchical confusion during its continuance, but seem- ed to prepare tho way for a more absolute power of abrogating all acts of the Legisla- ture. Three years afterward it was en- acted that proclamations made by the king and council, under penalty of fine and im- prisonment, should have the force of stat- utes, so that they should not be prejudicial to any person's inheritance, offices, liber- ties, goods, and chattels, or infringe the es- tablished laws. This has been often no- * 28 H. 8, C. 18. t 28 H. 8, c. 7. t 35 H. 8, c. 1. § 28 H. 8, c. 17. 32 COXSTITUTIONAL HISTOEY OF ENGLAND [Chap. I. ticed as an instance of senile compliance. | It is, howevei', a sti'iking testimony to the free constitution it infringed, and demon- Sti'ates that the prerogative could not soar to the heights it aimed at, till thus impeded by the perfidious hand of Parliament. It is also to be observed, that the power given to the king's proclamations is considerably limited.* A government administered with so fre- quent 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 abhoirence, and earnest longings for a change. Yet contem- poraiy authorities by no means answer to this expectation. Some mention Heniy af- ter his death in language of eulogy- ; and, if we except those whom attachment to the ancient religion had inspired with hati'ed toward his memory, very few ajipear to have been aware that his name would de- scend 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, in- deed, 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 desen e es- teem, and several which a nation is pleased to behold in a sovereign. He wanted, or * 31 H. 8, c. 8. Burnet, i., 263, explains the origin of this act. Great exceptions had been taken to some of the king's ecclesiastical procla- mations, vrhich altered laws and laid taxes on spiritual persons. He justly observes that the re- strictions contained in it gave great power to the judges, who had the power of expounding in their hands. The preamble is full as offensive as the body of the act ; reciting the contempt and disobe- dience of the king's proclamations by some "who did not consider u-liat a kin^ hy his royal power might do," which, if it continued, would tend to the disobedience of the laws of God, and the dishonor of the king's majestj", " who might full ill bear it," Icc. See this act at length in the great edition of the statutes. There was one singular provision: the clause protecting all persons, as mentioned, in their inheritance or other propertv-, proceeds, "uor shall by virtue of the said act suffer any pains of death." But an exception is afterward made for " such persons which shall offend against any proc- lamation to be made by the king's higlmess, his heirs or successors, for or concerning any kind of heresies against Christian doctrine." Thus it seems that the king claimed a power to declare heresy by proclamation, under penalty of death. at least did not manifest in any eminent de- gree, one usual vice of tyrants, dissimula- tion : his manners were affable, and his tem- per generous. Though his schemes of for- eign policy were not veiy sagacious, and his wars, either with France or Scotland, productive of no material advantage, they were uniformly successful, and retrieved the honor 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 Refor- mation. They saw in him, not, indeed, the proselyte of their faith, but the subveiter of their enemies' power, the avenging minister of Heaven, by whose giant arm the chain of superstition had been broken, and the prison gates burst asunder.* The ill-assorted body of counselors who exercised the functions of regen- Government cy by Heniy's testament, were °4vs7oan- sensible that they had not sinews selors. to wield his u-on scepter, and that some sacrifice must be made to a nation exasper- ated as well as overawed by the violent measures of his reign. In the first ses- sion, accordingly, of Edward's Parliament, the new treasons and felonies which had been created to please his father's sangui- nary disposition were at once abrogated. f The statute of Edward III. became again the standard of high ti'eason, except that the denial of the king's supremacy was still lia- ble to its penalties. The same act, which relieves the subject from these terrors, con- tains also a repeal of that which had given * Gray has finely glanced at this bright point of Henrj's character, in that beautiful stanza where he has made the founders of Cambridge pass before our eyes, like shadows over a magic glass : The majestic lord, broke the bonds of Rorae. In a poet, this was a fair emplojiuent of his art ; but the partiality- of Bumet toward Heurj- VIII. is less wairantable ; and he should have blushed to excuse, by absurd and unworthy sopliistiy, the punishment of those who refused to swear to the king's supremacy, p. 351. After all, Henry was every whit as good a king and man as Francis I., whom there are still some, on the other side of the Channel, servile enough to extol; not in the least more tyrannical and san- guinarj-, and of better faith toward his neighbors. t 1 Edw. 6, c. 12. By this act it is proWded that a lard of Parliament shall have the benefit of clergy, though he can not read. — Sect. 14. Yet one can hardly believe that this provision was neces- sary at so late an era. Edw. VI.] FROM HENRY VII. TO GEORGE 11. 33 legislative validity to the king's proclama- tions. These pi-ovisions appear like an elastic recoil of the Constitution after the ex- traordinary pressure of that despotic reign. But, however 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 arrogant 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 obnoxious to violate than to new-mold the Constitu- tion ; 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 es- tablished by no other authority, though af- terward sanctioned by Parliament. Rates were thus fixed for the price of provisions ; 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 forfeiture.* Some of these might possibly have a sanction from precedent, and from the acknowledged pre- rogative of the crown in regulating the coin. But no legal apology can be made for a proc- lamation in April, 1549, addressed to all justices of the peace, enjoining them to ar- rest 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. f One would * 2 Strype, 147, 341, 491. t Id., 149. Dr. Lingard has remarked an im- portant change in the coronation ceremony of Ed- ward VI. Formerly, the king had taken an oatli to preserve the Uberties of the reahn, and especial- ly those granted by Edward the Confessor, &c., before the people were asked whether they would consent to have him as their king. See the form observed at Richard the Second's coronation in Ryraer, vii., 158. Bat at Edward's coronation, the archbishop presented the king to the people, as rightful and undoubted inheritor by the laws of God and man to the royal dignity and crown impe- rial of this realm, ice, and asked if they would serve him and assent to his coronation, as by their duty of allegiance they were bound to do. AH this was hefore the oath. — 2 Bamet, Appendix, p. 93. Few will pretend that the coronation, or the cor- onation oath, was essential to the legal succession of the crown, or the exercise of its prerogatives. But this alteration in the form is a curious proof of the solicitude displayed by the Tudors, as it was much more by the next family, to suppress every c imagine that the late statute had been re- pealed, as too far restraining the royal pow- er, rather than as giving it an unconstitu- tional extension. It soon became evident that, if the new administration had not fully im- ... . , *; Attainder of bibed the sanguinary spirit of Lord Sey- their late master, they were as little scrupulous in bending the rules of law and justice to their pui-pose in cases of trea- son. The Duke of Somerset, nominated by Henry only as one of his sixteen execu- tors, obtained almost immediately afterward a patent from the young king, constituting him sole regent under the name of protect- or, with the assistance, indeed, of the rest as his counselors, but with the power of adding any others to their number. Con- scious of his own usurpation, 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, according to the policy of that age, he thought it necessary to desti'oy by a bill of attainder. Seymour was appa- rently a dangerous and unprincipled man ; he had courted the favor of the young king by small presents of money, and appears be- yond question to have entertained a hope of marrying the Princess Elizabeth, who had lived much in his house during his short union with the queen dowager. It was sur- mised that this lady had been poisoned to make room for a still nobler consort.* 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 expedient recollection that could make their sovereignty ap- pear to be of popular origin. * Ha_>-nes's State Papers contain many curioaa proofs of the incipient amour between Lord Sey- mour and Elizabeth, and show much indecent fa- miliarity on one side, with a little childish coquetry on the other. These documents also rather tend to confinn tlie story of our elder historians, which I have found attested by foreign writers of that age (though Burnet has thrown doubts upon it), that some differences between the queen-dowager and the Duchess of Somerset aggravated at least those of their husbands. — P. 61, 69. It is alleged with absurd exaggeration, in the articles against Lord Sej-mour, that, had tlie former proved imme- diately with child after her marriage with him, it might have passed for the king's. This marriage, however, did not take place before June, Henry having died in January. — Ellis's Letters, ii., 150. 34 CONSTITUTIONAL HISTOEY OF ENG^LAND [Chap. L to follow the veiy worst of Henry's prece- dents, by not hearing the accused in his de- fense. The bill passed through the Upper House, the natural guardian of a peer's life and honor, without one dissenting voice. The Commons addressed the king that they might hear the witnesses, and also the ac- cused. It was answered that tlie king did not think it necessary for them to hear the latter, but that those who had given their depositions before the Lords might repeat their evidence before the Lower House. It rather appeai-s that the Commons did not insist on this any further ; but the bill of at- tainder was carried with a few negative voices.* How striking a picture it affords of the sixteenth centuiy, to behold the pop- ular and well-natured Duke of Somerset, more estimable, at least, than any other statesman employed 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 to keep in sub- Attainder of . ' Duke of So- jection the subtle and daimg spir- mersot. ti'ained in Heniy's council's, and jealous of the usurpation of an equal. The Protector, attributing his success, as is usual with men in power, rather to skill than fortune, and confident in the two frail- est suj)ports that a minister can have, the favor of a child and of the lower people, was stripped of his authority within a few months after the execution of Lord Sey- mour, by a confederacy which he had nei- ther the discretion to prevent nor the firm- ness 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 Northumber- land, who, with no ostensible title, had be- come not less absolute than himself. It is not improbable that Somerset was innocent of the charge imputed to him, namely, a conspiracy to murder some of the privy- counselors, which had been erected into felony by a recent statute ; but the evi- dence, though it may have been false, does not seem legally insufficient. He demand- ed on his trial to be confi-onted with the * Joumftls, Feb. 27, March 4, 1548-9. From these I am led to doubt whether the Commons ac- tually heard witnesses aQ;ainst Sej-mniir, which Burnet and Strype have taken for granted. witnesses; a favor rarely gi-anted ia that age to state criminals, and which he could not veiy decently solicit after causing his brother to be condemned unheard. Three lords, against whom he was charged to have consj)ired, sat upon his trial; and it Ava3 thought a sufKicient 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 ol- igarchy no measure conducive to liberty and justice could be expected to spring. But among the Commons there must have been men, although their names have not descended to us, Avho, animated by a purer zeal for these objects, perceived on how precarious a thread the life of every man was suspended, when the private disposition of one suborned witness, unconfronted with the prisoner, could suffice to obtain a con- viction 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 in- dicted for any manner of treason, except on the testimony of two lawful witnesses, who shall be brought in person before the ac- cused at the time of his ti'ial, to avow and maintain what they have to say against him, unless he .shall willingly confess the charges."* This salutary provision vras 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 woi'k, I shall find an opportunity for discussing this important branch of consti- tutional law. It seems hai'dly necessary to mention the momentary usurpation of Lady vj„]g„pg Jane Grey, founded on no pretext of .Mary's of title which could be sustained by ^'^'S"- any argument. She certainly did not ob- tain that degi'ee of actual possession which might have sheltered her adherents under the statute of Henry VII. ; nor did the Duke of Northumberland allege this excuse on his trial, thougli he set up one of a more technical nature, that the gi-eat seal was a sufficient protection for acts done by its au- thoritj-.f The reign that immediately fol- * Stat. ."> & 6 Edw. 6, c. 11, s. 12. t Burnet, ii., 243. An act was made to confirm Mart.] FROM HENRY VII. TO GEORGE II. 35 lowed is chiefly remembered as a period of sanguinary persecution ; but though I re- serve for the next chapter all mention of ec- clesiastical disputes, some of Mary's pro- ceedings in re-establishing popery belong to the civU history of our Constitution. Impa- tient, under the existence, for a moment, of rites and usages which she abhorred, this bigoted woman anticipated the legal author- ity which her Parliament was ready to in- terpose for their abrogation; the Latin lit- urgy was restored, the married clergy ex- pelled from their livings, and even many Protestant ministers thrown into prison for no other crime than their religion, before any change had been made in the establish- ed laws.* The queen, in fact, and those around her, acted and felt as a legitimate government i-estored after a usurpation, and treated the recent statutes as null and in- valid. But even in matters of temporal gov- ernment, 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 deeds of private persons, dated during Jane's ten days, concerning which some doubts had arisen. — 1 Mary, sess. 2, c. 4. It is said in this statute, " her highness's most lawful possession was for a time disturbed and disquieted by traitorous rebell- ion and usurpation." It appears that the younc: kind's original inten- tion was to establish a modified Salic law, exclud- ing females from the crown, but not their male heirs. In a writing drawn by himself, and entitled "My Device for the Succession," it is entailed on the heirs male of the lady queen, if she have any before his death : then to the Lady Jane and her heirs male : then to the heirs male of Lady Kath- arine ; and in every instance, except Jane, exclud- ing the female herself. Strype's Cranmer, Append., 164. A late author, on consulting the original MS., in the king's handwriring, found that it had been at first written, " the Lady Jane's heirs male." but that the words " and her" had been interlined. — Nares's Memoirs of Lord Burghley, i., 4.')1. Mr. Nares does not seem to doubt but that this was done by Edward himself: the change, however, is remarkable, and should probably be ascribed to Northumberland's influence. * Bm-net. Strype, iii., .'50, 53. Carte, 290. I doubt whether we have any thing in our liistorv more like conquest than the administration of l.'j.53. The queen, in the month only of October, presented to 256 livings, restoring all those turned out under the acts of uniformitj'. Yet the deprivation of the bishops might be justified probably by the term.s of the commission they had taken out in Edward's reign, to hold their sees during the king's pleasure, for which was afterward siibstitutetl " during good behavior." — Buniet, App., 257. Collier, 218. name, to remark that Maiy was conscien- tiously averse to encroach upon what she understood to be the privileges of her peo- ple. A wretched book having been written to exalt her prerogative, on the ridiculous pretense that, as a queen, she was not bound by the laws of former kings, she showed it to Gardiner, and on his expressing indigna- tion 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 surrounded by wick- ed counselors, renegades of every faith, and ministers of every tyranny. We must, in candor, attribute to their advice her arbiti'a- ry measures, though not her persecution of heresy, which she counted for virtue. She is said to have extorted loans from the citi- zens of London, and others of her subjects. f This, indeed, was not more than had been usual with her predecessors. But we find one clear instance, during her reign, of a duty upon foreign cloth, imposed without assent of Parliament ; an encroachment un- precedented since the reign of Richard II. Several proofs might be adduced from rec- ords of arbitrary inquests for oflTenses, and illegal modes of punishment. The torture is, perhaps, more frequently mentioned in her short reign than in all fonnor ages of our history put together ; and probably from that imitation of foreign governments, which contributed not a little to deface our Consti- tution in tlie sixteenth century, seems de- liberately to have been inti-oduced as a part of the process in those dark and uncontroll- ed ti'ibunals which investigated offenses against the state. t A commission issued in 1557, authorizing the persons named in it to inquire, by any means they could devise, into charges of heresy or other religious of- fenses, and in some instances to punish the guilty, in others of a giaver nature to remit them to their ordinaries, seems (as Burnet has well obsei-ved) to have been meant as a preliminary step to bringing in the Inquisi- tion. It was at least the germ of the High- * Buniet, ii., 278. Stat. 1 Mary, sess. 3, c. 1. Dr. Lingard rather strangely tells this story on the authority of Father Persons, whom his readers probably do not esteem quite as much as he does. If he had attended to Burnet, he would have found a more sufficient voucher. t Carte, 330. t Haynes, 195. Baniet, ii., Appendix, 256 ; iii, 243. 36 CONSTITUTIONAL HISTOEY OF ENGLAND [Chap, t Commission Court in the next reign.* One | proclamation, in the last year of her inau- spicious administration, may be deemed a flight of tyrann}- beyond her father's exam- ple ; which, after denouncing the importa- tion of books filled with heresy and tresison from beyond sea, proceeds to declare, that | whoever should be found to have such books in his possession should be reputed and tak- en for a rebel, and executed according to ' martial law.f This had been provoked as ■ well by a violent libel written at Geneva by Goodman, a refugee, exciting the people to dethrone the queen, as by the recent at- tempt of one .Stafford, a descendant of the house of Buckingham, who, having land- ed with a small force at .Scarborough, had vainly hoped that the general disaffection would enable him to overthrow her govern- ; ment.J j Notwithstanding, however, this apparent- * Buniet, ii., 347. Collier, ii., 404, and Lineard, , vii., 256 (who, by the-way, confounds this commis- : eion with somethin? different two j ears earlier), j will not hear of this allosiou to the Inquisition. ! But Burnet has said nothing that is not perfectly j just. + Strj-pe, iii., 459. t See Stafford's proclamation from Scarborough i Castle, Strype, iii.. Appendix. No 71. It contains no allusion to religion, both parties beins wearj- of , Marj'S Spanish counsels. The important letters of NoaiUes, the French ambassador, to which Carte ' had access, and which have since been printed, have afforded information to Dr. Lineard, and, with those of the imperial ambassador, Renard. which I have not had an opportunity of seein?, throw much Ueht on this reign. They certainly appear to justify the restraint put on Ehzabeth, who, if not herself priry to the conspiracies planned in her behalf (which is, however, ver>- probable*, was at least too dangerous to be left at liberty. Koailles intrigued with the malcontents, and in- stigated the rebellion of Wyatt, of wliich Dr. Lin- eard gives a very interesting account. Carte, In- deed, differs from him in many of these circam- Btances, though writing from the same source, and particularly denies that Noailles gave any encour- agement to Wj-att. It is, however, evident from the tenor of his dispatches that he had gone great lengths in fomenting the discontent, and was evi- dently desirous of the success of the insurrection, iii, 36, 43, kc. This critical state of the government may furnish the usual excuse for its rigor. Bat its unpopularity was brought on by Marj 's breach of her word as to religion, and still more by her obsti- nacy in forming her cmion with Philip against the general voice of the nation, and the opposition of Gardiner; who, however, after her resolution was taken, became its strenuoxis supporter in public. For the detestation in which the queen was held, see the letters of Noailles, passim ; but with scms degree of aUowaoce for his own antipathy to her. ly uncontrolled career of power, it is cer- tain that the children of Henry VIII. did not preserve his almost absolute dominion over Parliament. I have only The Hoas* met with one instance in his "^^mim^s* recmcrs part reign where the Commons re- of lu mJe- fused to pass a bill recommended ^",n"hrte'' by the crown. This was in 1.332; """"g"- but so unquestionable were the legislative rights of Parliament, that ahhough much displeased, even Henry was forced to yield.* 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 al- ways a majoritj- of peers for the government, yet the dissent of no small number is fre- quentlj- recorded in the former reign. Thus the Commons not only threw out a bill creat- ing several new treasons, and substituted one of a more moderate nature, with that memo- rable clause for two witnesses to be produ- ced in open court, which I have already mentioned, t but rejected one attainting Tunstal, bishop of Durham, for misprision of treason, and were hardly brought to grant a subsidy. t Their conduct in the two for- mer 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. Sevend cases of similar unwill- ingness to go along with court measures oc- curred under Mary. She dissolved, in fact, her first two Parliaments on this account. But the third was far from obsequious, and rejected several of her favorite bills. § Two reasons principally contributed to this oppo- sition : the one, a fear of entailing upon the country those numerous exactions of which so many generations had complained, by re- viving the papal supremacy, and more espe- cially of a restoration of abbey lands ; the other, an extreme repugnance to the queen's ' Burnet, i., 117. The king refused his assent to a bill which had passed both Houses, but ap- parently not of a political nature. — Lords' Journals, p. 162. t Burnet, 190. t Id., 195, 215. This was the Parliament, in or- der to secure favorable elections for which the council had written letters to the sheriffs. These do not appear to have availed so much as they might hope. § Carte, 311, 322. Noailles, v., 252. He says that she committed some knights to the Tower for their language in the House. — Id., 247. Bumet, p. 324, mentions the same. Edw. VI. & Mart.] FROM HENRY VII. TO GEORGE U. 37 Spanish connection.* If Mary could have obtained the consent of Parliament, she would have settled the crown on her hus- band, and sent her sister, perhaps, to the scaffold, t There can not be a stronger proof of the , increased weight of the Corn- Attempt of , . , 1 , the court to mons during these reigns than the Useirbjlcre- anxiety of the court to obtain fa- sting new vorable elections. Many ancient oroughs. boroughs undoubtedly have at no period possessed sufficient importance to deserve the elective franchise on the score of their riches or population ; and it is most likely that some temporary interest or par- tiality, which can not now be ti-aced, first caused a writ to be addressed to them. But there is much reason to conclude that the counselors 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 Corn- wall, and several others that appear to have been insignificant. Maiy 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 representation, 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 tlie government scruple a direct and avowed interference with elections. A circular let- ter of Edward to all the sheriffs commands them to give notice to the freeholders, cit- * Burnet, 322. Carte, 296. Noailles says, that a third part of the Commons in Mary's first Parlia- ment was hostile to the repeal of Edward's laws about reUgion, and that the debates lasted a week, ii., 247. The Journals do not mention any division ; though it is said in Strype, iii., 204, that one mem- ber. Sir Ralph Bagnal, refused to concur in the act abolishing the supremacy. The queen, however, in her letter to Cardinal Pole, says of this repeal : " quod non sine conteutione. disputatione acri, et summo labore fidelium factum est." — Lingard, Carte. Philips's Life of Pole. Noailles speaks re- peatedly of the strength of the Protestant party, and of the enmity which the English nation, as he expressed it, bore to the pope. But the aversion to the marriage with Philip, and dread of falling under the yoke of Spain, were common to both religions, with the exception of a few mere bigots to the Church of Rome. t Noailles, vol. v., passim. izens, and burgesses within their respective counties, " that our pleasure and command- ment is, that they shall choose and appoint, as nigh as they possibly may, men of knowl- edge and experience within the counties, cities, and boroughs ;" but nevertheless, that where the privy council should " recom- mend men of learning and wisdom, in such case their directions be regarded and follow- ed." 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 ofifice formed at all times a very considerable portion of the House of Commons. Another circular of Mary before the Parliament of 1554, direct- ing the sheriffs to admonish the electors to choose good Catholics and " inhabitants, as the old laws require," is much less uncon- stitutional; but the Earl of Sussex, one of her most active counselors, wrote to the gen- tlemen of Norfolk, and to the burgesses of Yarmouth, requesting them to reserve their voices for the person he should name.f 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 ; J 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 succor of France, and animating the patri- otism of those unknown leaders of that as- sembly who withstood the design of a be- sotted woman and her unprincipled coun- selors to transfer this kingdom under the yoke of Spain.§ It appears to be a very natural inquiry, after beholding the course of administi-ation * Strype, ii., 394. t Id., iii., 155. Burnet, ii., 228. t Burnet, ii., 2C2, 277. § Noailles, v., 190. Of the truth of this plot there can be no rational ground to doubt; even Dr. Lin- gard has nothing to advance against it but the as- sertion of Mary's counselors, the Pagets and Arun- dels, the most worthless of mankind. We are, in fact, greatly indebted to Noailles for his spirited activity, which contributed, in a high degree, to secure both the Protestant religion and the national independence of our ancestors. 38 CONSTITUTIONAL HISTORY OF ENGLAND [Chap L Oausesofthe under the Tudor line, by what ai'fve of UiT means a government so violent in Tudors. itself, and so plainly inconsistent with the acknowledged laws, could be main- tained; and what had become of that Eng- lish spirit which had not only controlled such injudicious princes as John and Richard II., but withstood the first and third Edward, in the fullness of their pride and gloiy. 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 toward absolute monarchy between the reigns of Henry VI. and Henry VIII. Nor could this be attrib- uted 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 receiv- ing pay throughout England.* A govern- ment that ruled by intimidation was ab- solutely destitute of force to intimidate. Hence risings of the mere commonalty were sometimes highly dangerous, and lasted much longer than ordinaiy. A rabble of Cornishmen, in the refign of Henry VII., headed by a blacksmith, marched up from their own county to the suburbs of Lon- don without resistance. The insuiTections of 1525 in consequence of Wolsey's illegal taxation, those of the north ten years after- ward, wherein, indeed, some men of higher quality were engaged, and those which broke out simultaneously in several coun- ties under Edward VI., excited a well- grounded alarm in the country ; and in the two latter instances were not quelled with- out much time and exertion. The reproach of servility and patient acquiescence under usurped power falls not on the English peo- ple, but on its natural leaders. We have * Henry VII. first established a band of fifty archers to wait on him. Henry VIII. had fifty horse-guards, each with an archer, demi-lance, and couteiller, like the gendarmerie of France; but on account, probably, of the expense it occasioned, their equipment being too magnificent, this soon was given up. seen, indeed, that the House of Commons now and then gave signs of an independent spirit, and occasioned more trouble, even to Henry VIII., than his compliant nobility. They yielded to every mandate of his im- perious will ; they bent with eveiy breath of his capricious humor ; they are responsi- ble for the illegal trial, for the iniquitous at- tainder, 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 pusil- lanimous subserviency more characteristic of the minions of Henry's favor, the Crom- wells, the Riches, the Pagets, the Russels, and the Powletts, than of the representa- tives of ancft;nt and honorable houses, the Howards, the Fitz-Alans, and the Talbots. We trace the noble statesmen of those reigns concurring in all the inconsistencies of their revolutions, supporting all the relig- ions of Heniy, Edward, Maiy, and Eliza- beth; adjudging the death of Somei-set to gratify Northumberland, and of Northum- berland to redeem their participation in his fault, setting up the usui-pation of Lady Jane, and abandoning her on the first doubt of success, constant only in the rapacious acquisition of estates and honors, from what- ever source, and in adherence to the pres- ent power. 1 have noticed in a former work that il- legal and arbitraiy jurisdiction ex- .lurisdiction ercised by the council, which, in "f '^l>e coun- ^ ' cu of Star despite of several positive stat- Chamber, utes, continued in a greater or less degi'ee, through all the period of the Plantagenet family, to deprive the subject, in many crim- inal chai'ges, of that sacred privilege, trial by his peers.* This usurped jurisdiction, carried much further and exercised more vigorously, was the principal grievance un- der 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 in- * View of Middle Ages, ch. 8. I must here ac- knowledge that I did not make the requisite A\s- tinction between tlie concilium secretum, or privy council of state, and the concilium ordinarium, as Lord Hale calls it, which alone exercised juris- diction. Hen. VII. TO Mart.] FROM HENRY VII. TO GEORGE II. 89 tiinidating jurors, it pi-ocured convictions which it was not authorized to pronounce. We are naturally astonished at the easiness with wliich verdicts were sometimes given against persons accused of treason on evi- dence insufficient to support tlie charge in point of law, or in its nature not competent to be received, or unworthy of belief. But this is explained by the peril that hung over the jury in case of acquittal. " If," says Sir Thomas Smith, in his Treatise on the Commonwealth of England, " they do pro- nounce not guilty upon the prisoner, against whom manifest witness is brought in, the prisoner escapeth, but the twelve are not only rebuked by the judges, but also threat- ened of punishment, and many times com- manded to appear in the Star Chamber, or before the privy council, for tlie matter. But this threatening chanceth oftener than the execution tliereof ; and the twelve an- swer with most gentle words, they did it according to their consciences, and pray the judges to be good unto them ; they did as they tliouglit right, and as they accorded all; and so it passeth away for the most part. Yet I have seen in my time, but not in the reign of the king now [Elizabeth], that an inquest for pronouncing one not guilty of treason conti'ary to such evidence as was brought in, were not only imprison- ed for a space, but a large fine set upon their heads, which they were fain to pay ; anotlier inquest, for acquitting anothei% beside pay- ing a fine, were put to open ignominy and shame. But these doings were even then accounted of many for violent, tyrannical, and contrary to the liberty and custom of the realm of England."* One of the in- stances to which he alludes was probably that of the juiy who acquitted Sir Nicholas Throckmorton in the second year of Maiy. He had conducted his own defense with singular boldness and dexterity. On de- livering their verdict, the court committed them to prison. Four, having acknowledged their oflfense, were soon released ; but the rest, attempting tojustify themselves before * Commonwealth of England, book 3, e. 1. The statute 26 H. 8, c. 4, enacts, that if a jury in Wales acquit a felon, contrary to good and pregnant evi- dence, or otherwise misbehave themselves, the judge may bind them to appear before the presi- dent and council of the Welsh marches. The par- tiality of WeLsh jurors was notorious in that age ; and the reproach has not quite ceased. the council, were sentenced to pay, some a fine of two thousand pounds, some of one thousand marks ; a part of which seems ulti- mately to have been remitted.* It is here to be observed, that the coun- cil of which we liave just heard, j.^^^ or, as Lord Hale denominates it s^""^ (though rather, I believe, for the erected by sake of distinction than upon any ^^°^y ancient autliority), the king's ordinary council, was something different from the privy council, with wliich several modern writers are apt to confound it; that is,, the comt of jurisdiction is to be distinguished from the deliberative body, the advisers of the crown. Eveiy privy counselor belong- ed to the concilium ordinarium ; but the chief justices, and perhaps several others who sat in the latter (not to mention all tem- poral and spiritual peers, who, in tlie opin- ion at least of some, had a right of suffrage therein), were not necessarily of the former body.* This can not be called in question, * State Trials, i., 901. Strype, ii., 120. lu a letter to the Duke of Norfolk (Hardwicke Papers, i., 46) at the time of the Yorkshire rebellion in 1536, he is directed to question the jury who had acquitted a particular person, in order to discover their motive. Norfolk seems to have objected to this for a good reason, " least the fear thereof might trouble others in the like case." But it may not be uncandid to ascribe this rather to a leaning toward the insurgents than a constitution- al principle. t Hale's Jurisdiction of the Lords' House, p. 5. Coke, 4th Inst., 65, where we have the following passage : " So this court [the court of Star Cham- ber, as the concilium was then called], being hold- en coram rege et concilio, it is, or may be, com- pounded of tliree several councils ; that is to say, of the lords and others of his majesty's privy council, always judges without appointment, as before it appeareth. 2. The judges of either bench and barons of the Exchequer are of the king's council, for matters of law, &c. ; and the two chief justices, or, in their absence, other two justices, are standing judges of this court. 3. Tlie lords of Parliament are properly de magno concilio regis ; but neither those, not being of the king's privy council, nor any of the rest of the judges or barons of the Exchequer, are standing judges of the court." But Hudson, in his Treatise of the Court of Star Chamber, written about the end of James's reign, inclines to think that all peers had a right of sitting in the Court of Star Chamber ; there being several instances where some who were not of the council of state were present and gave judgment, as in the case of Mr. Davison, " and how they were complete judges unsworn, if not by their native right, I can not comprehend ; for surely the calling of them in 40 CONSTITUTIONAL HISTOKY OF ENGLAND [Chap. I. without 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 ti-ibunal sprang up in the sixteenth centui-y under the name of the Star Cham- ber. It has, indeed, been often assumed, that a statute enacted early in the reign of Henry VIL gave the first legal authority to the criminal jurisdiction exercised by that i famous court, which in reality was nothing else but another name for the ancient con- cilium regis, of which our records are full, and whose encroachments so many statutes had endeavored to repress ; a name derived from the chamber wherein it sat, and which is found in many precedents before the time of Henry VH., though not so specially ap- plied to the council of judicature as after- ward.* The statute of this reign has a much more limited operation. 1 have ob- served in another work that the coercive jurisdiction of the council had great conven- ience, in cases where the ordinary course of justice was so much obstructed by one party, through writs, combinations of main- tenance, or overawing influence, that no inferior court would find its process obey- ed ; and that such seem to have been reck- oned necessary exceptions from the statutes which restrain its interference. The act of 3 H. 7, c. 1, appears intended to place on a la^vful and permanent basis the jurisdic- tion of the council, or rather a part of the that case was not made leiritimate by any act of Parliament ; neither without their right were they more apt to be judges than any other inferior per- sons in the kingdom ; and yet I doubt not but it resteth in the king's pleasure to restrain any man from that table, as well as he may an}' of his coun- cil from the board. " — Collectanea Juridica, ii., p. 24. He says also, that it was demurrable for a bill to pray process against the defendant, to ap- pear before the king and his privy council. — Ibid. " The privy council sometimes met in the Star Chamber, and made orders. See one in 18 H. 6, Harl. MSS., Catalogue, N. 1S78, fol. 20. So the statute, 21 H. 8, c. 16, recites a decree by the king's council in his Star Chamber, that no alien artificer shall keep more than two alien servants, and other matters of the same kind. This could no way belong to the Court of Star Chamber, which was a judicial tribunal. It should be remarked, though not to our imme- diate purpose, that this decree was supposed to require an act of Parliament for its confirmation ; go far was the government of Henry VIII. from arrogating a legislative power in matters of pri- vate right. council, over this peculiar class of offenses ; and after reciting the combinations support- ed by giving hveries, and by indentures or promises, the partiality of sheriffs in mak- ing panels, and in untrue returns, the tak- ing of money by juries, the great riots and unlawful assemblies, which almost annihila- ted the fair adminLstration of justice, em powers the chanceUor, treasurer, and keep- er of the privy seal, or an_y two of them, with a bishop and temporal lord of the coun- cil, 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 re- spects, and to punish them after examina- tion in such manner as if they had been convicted by course of law. But this stat- ute, if it renders legal a jurisdiction which had long been exercised with much advan- tage, must be allowed to limit the persons in whom it should reside, and certainly does not convey by any implication more extens- ive 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 dis- tinct 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 for- ty years afterward, fell silently into the hands of the body of the council, and was extended by them so far beyond the bound- aries assigned by law, under the appellation of the Court of Star Chamber. Sir Thom- as Smith, writing in the early part of Eliza- beth's reign, while he does not advert to the former court, speaks of the jurisdiction of the latter as fully established, and ascribes the whole praise (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 Parlia- ment, enacts that offenders convicted of breaking such proclamations before certain persons enumerated therein (being appa- rently 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 imprison- Hen. VII. TO Mary.] PKOM HENRY VII. TO GEORGE II. 41 mcnt ns they shall adjudge. " It is the ef- fect of this court," Smith says, "to bridle such stout noblemen or gentlemen which would offer wrong by force to any manner of men, and can not be content to deniand or defend the right by order of the law. It began long before, but took nugmentatioii and authority at that time that Cardinal Wolsey, archbishop of York, was chancel- lor of England, who of some was thought to have first devised that court, because that he, after some intermission, by negligence of time, augmented the authority of it,* * Lord Hale thinks that the jurisdiction of the council was gradually "brought into great disuse, thouijli there remain some stragsrling footsteps of their proceedings till near 3 H. 7," p. 38. " The continual complaints of the commons against the proceedings before the council in causes civil or criminal, although they did not always attain their concession, yet brought a disreputation upon the proceedings of tlie council, as contrary to Magna Charta and the known laws," p. 39. He seems to admit afterward, however, that many instances of proceedings before them in criminal causes might be added to those mentioned by Lord Coke, p. 43. The paucity of records about the time of Ed- ward IV. renders the negative argument rather weak ; but, from the expression of Sir Thomas Smith in the text, it may perhaps be inferred that the council had intermitted in a considerable de- gree, though not absolutely disused, their exercise of jurisdiction for some time before the accession of the liouse of Tudor. Mr. Brodie, in his History of the British Empire under Charles I., i., 158, has treated at consider- able length, and with much acuteness, this subject of the antiquity of the Star Chamber. I do not coincide in all his positions ; but tlie only one very important is that wherein we fully agree, that its jurisdiction was chiefly usurped, as well as ty- rannical. I will here observe that this part of our ancient Constitutional history is likely to be elucidated by a friend of my own, who has already given evi- dence to the world of his singular competence for such an undertaking, and who unites, with all the learning and diligence of Spelman, Prynne, and Madox, 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 Council, by Sir Francis Palgrave, K.H.," 1834. The -'Proceed- ings and Ordinances of the Privy Council of Eng- land," published by Sir Harris Nicolas, contain the transactions of that body from 10 Ric. II. (1387) to 13 Hen. VI. (143.'>), with some scattered entries for the rest of the latter 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 arbitrary and penal jurisdiction, or near- which was at that time marvelous necessa- ry to do to repress the insolency of the no- blemen 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 them- selves, with their tenants and servants, to do or revenge an injury one against another as they listed. This thing seemed not sup- portable to the noble prince Henry VIII.; and sending for them one after another to his court, to answer before the persons be- fore named, after they had remonstrance showed them of their evil demeanor, and been well disciplined, as well by words as by fleeting [confinement in the Fleet pris- on] a while, and thereby their pride and courage somewhat assuaged, they began to range themselves in order, and to under- stand that they had a prince who would 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 befwe."* 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 of- fenses which Smith here describes, it may, perhaps, be more likely that it did not wholly merge in the general body of the council till the minority of Edward, whea that oligarchy became almost independent and supreme. It is obvious that most, if not all, of the judges in the court held un- der that statute were members af the coun- cil ; so that it might in a certain sense be considered as a committee from that body, ly such, as the concilium ordinarium had done with so much odium under Edw. HI. 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. 39) ; and, in fact, consid- erably more unconstitutional and dangerous, from there being no admixture of the judges to keep up some regard to law. 1845.] * Commonwealth of England, book 3, c. 4. We find Sir Robert Sheffield in 1517 " put into the Tower again for the complaint he made to the king of my lord cardinal." — Lodge's Illustrations, i., p. 27. See, also, Hall, p. .585, for Wolsey's strictness in punishing " the lords, knights, and men of all sorts, for riots, bearing, and mainte- nance." 42 COXiTITUTIOXAL HISTOaY OF ENGLAND [Chap. I. who had long before been wont to interfere with the punishment of similar misdemean- oi's. And the distinction was so soon for- gotten, 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 " conceraing the Star Chamber," which related to the limited coui't erected by the statute.* In this half-barbarous state of manners we certainly discover an apology, as well as mo- tive, for the council's interterence ; for it is rather a serv ile woi-shiping of names than a rational love of hberty, to prefer the forms of trial to the attainment of justice, or to fan- cy that verdicts obtained by violence or cor- ruption are at all less iniquitous than the vi- olent 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 ju- risdiction habitually exercised by the Court of Star Cliamlier. Lord Bacon takes occa- sion from the act of Heniy 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 liis 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 toward crimes capital or heinous, not actually conmiitted or perpetrated."! Sir Thomas Smith uses expressions less mdefinite than these last, and specifies scandalous reports of persons in power, and seditious news, as offenses which they were accustomed to punish. We shall find abundant proofs of this de- partment of their functions in the succeed- ing reigns. But this was in violation of many ancient laws, and not in the least supported by that of Hemy VII. t * Plowden's Commentaries, 393. In the year- book itself, 8 H. 7. pi. ult., tlie word Star Cham- ber is not used. It is held in this case, that the chancellor, treasurer, and privj- seal were the only judses, and the rest but assistants. Coke, 4 Inst., 62, denies this to be law ; but on no better grounds than that the practice of the Star Chamber, that is, of a different tribunal, was not such. t Hist, of Henry VII. in Bacon's Works, ii., p. 290. i The result of what has been said in the last I paces may be summed up in a few propositions. 1. The court erected by the statute of 3 Henry VII. was not the Court of Star Chamber. 2. This court, by the statute, subsisted in fiiU force rill be- ! yond the middle of Henrj- VUL'b reign, but not ' A tribunal so vigilant and severe as that of the Star Chamber, proceeding by ,„fl,e„„ ^ modes of interrogatory unknown tiieauitioru/ » »1 11 »f Star to the common law, and possess- Chanii>er in ing a discretionary power of fine rwal^ and imprisonment, was easily able power, to quell any private opposition or contuma- cy. We have seen how the council dealt with those who refused to lend monej' by way of benevolence, and with the juries who found verdicts 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 toward 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 dis- solution. A knight was sent to the Tower by Maiy for his conduct in Parliament ;* and Henry VIII. is reported, not, perhaps, on very certain authority, to have talked of cutting off the heads of refractoiy common- ers. In the persevering struggles 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 encom^aged the ef- forts of, the Commons. But in the period now before us, the nobility were precisely the class most deficient in that constitution- al spirit which was far from being extinct in those below them. They knew what havoc had been made among their fathers by multiplied attainders during the rivalry of the two Roses. They had seen terrible examples of the danger of giving umbrage to a jealous court, in the fate of Lord Stan- ley and the Duke of Buckingham, both con- demned on slight evidence of treacherous friends and servants, from whom no man could be secure. Though ligor and cruelty tend frequently to overturn the government of feeble princes, it is unfortunately too true that, steadily employed and combined with vigilance and courage, they are often the long afterward went into disuse. 3. The Court of Star Chamber was the old concilium ordinarium. against whose jurisdiction many statutes had been enacted from the time of Edward III. 4. Xo part of the jurisdiction exercised by the Star Chamber could be maintained on the autliority of the stat- ute of Henry VIL ' Burnet, iL, 324. B-EFORMATION.] FROM HENRY VII. TO GKORGE II. 43 safest policy of despotism. A single sus- picion in the dark bosom of Henry VII., a single cloud of wayward humor in his son, would have been sufficient to send the proudest peer of England to the dungeon and the scaffold. Thus a life of eminent services in the field, and of unceasing com- pliance in council, could not rescue the Duke of Norfolk from the effects of a dis- like which we can not even explain. Nor were the nobles of this age more held in subjection by terror than by the still baser influences 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 himself with the carcass, distributed tlie spoils it brought him among those who had helped in the chase. The dissolution of the mon- asteries opened a more abundant source of munificence ; eveiy courtier, eveiy peer, looked for an increase of wealth from gi-ants of ecclesiastical estates, and naturally thought that the king's favor would most readily be gained by an implicit conformity to his will. Nothing, however, seems more to have sustained the arbitrary Temienry of rule of Henry VIII. than the "i.g.uu»d,s. ^ putes to the jealousy of the two religious par- same emi. ties formed in his time, and who, for all the latter years of his life, were maintaining a doubtful and emulous contest for his fa- vor. But this religious contest, and the ul- timate establishment of the Reformation, ai-e events far too important, even in a con- stitutional historj% 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. CHAPTER II. ON THE ENGLISH CHyRCH UNDER HENRY VIII., EDWARD VI., AND MARY. State of public Opinion as to Relisjion. — Henry VIII.'s Controversy with Lutlier. — His Divorce from Catharine. — Separation from the Cliurch of Rome. — Dissolution of Monasteries. — Proirress of the Reformed Doctrine in England.- — Its Es- tablishment under Edward. — Sketch of the chief Points of DiflFereuce between the two Religions. — Opposition made by Part of the Nation. — Crannier. — His Moderation in intro- ducing Changes not acceptable to the Zealots. —Man'.. — Persecution under her. — Its Effects rather favorable to Protestantism. No revolution has ever been more grad- ually prepared than that which State of pub- , , T ir CT^ lie opinion as separated almost one holt ot Eu- to religion, ^.^p^ ^^.^^^^ jj^^ communion of the Roman See ; nor were Luther and Zuin- gle any more than occasional instruments of that change, which, had they never ex- isted, 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, tlie ignorant with zeal and eagerness, were tending to depart from the faith and rites which authority pre- scribed. But probably not even Germany was so far advanced on this course as Eng- land. Almost a hundred and fifty years before Luther, nearly the same docftfines as lie tauglit had been maintained by Wick- liffe, whose disciples, usually called Lol- lards, lasted as a numerous, though obscure and proscribed sect, till, aided by the con- fluence of foreign sti-eams, 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 persotis were burned for heresy, and others abjured their errors, in the first years of Hemy 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 material to observe their particular tenets, as the general fact, that an inquis- itive and sectarian spirit had begun to pre- vail. Those who took little interest in theolog- ical questions, or who retained an attach- ment to the faith in which they had been educated, were in general not less oflended 44 COXSTITUTIONAL HISTORY OF ENGLAND [Chap. II. than tlie LoUards themselves with the in- ordinate opulence and encroaching temper of the clergy. It had been for two or three centuries the policy of our lawyers to re- strain these within some bounds. No ec- I clesiastical privilege had occasioned such ' dispute, or proved so mischievous, as the immunity of all tonsured persons from civil punishment for crimes. It was a material improvement 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 con- ' viction. Heniy VII. carried this much fur- ' ther, by enacting that clerks convicted of j felony should be burned in the hand. And j in 1-51.3 (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 subdea- ' cons. But this was not sufficient to sat- | isfy the Church, who had been accustomed to shield under the mantle of her immunity a vast number of persons in the lower de- grees of oi-ders, 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 vio- lent language in preaching against this stat- ute, the convocation attacked one Dr. Stand- ish, who had denied the divine right of clerks to their exemption from temporal jurisdiction. The temporal courts natural- ly defended Standish ; and the Parliament addressed the king to support him against the malice of his persecutors. Henry, af- ter a full debate between the opposite par- ties in his presence, thought his prerogative concerned in taking the same side ; and the clergy sustained a mortifying defeat. About the same time a citizen of London, named Hun, having been confined 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 convict- ed, had the attorney-general thought fit to proceed in the trial. This occurring at the same time with the affair of Standish, fur- nished 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 ju- ries were so prejudiced against the Church that they would find Abel guilty of the mur- der 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, a3 it illustrates the popular disposition toward those who had once been the objects of rev- erence.* Such was the temper of England when Martin Luther threw down his „ ,rT,i. Henry Vm. s gauntlet of defiance against the cimtrmersy ancient hierarchy of the Catho- lie Church. But, ripe as a great portion of the people might be to applaud the efl["ort3 of this reformer, they were viewed with no approbation by their sovereign. Henry had acquired a fair portion of theological learn- ing, and on reading one of Luther's treatis- es, was not only shocked at its tenets, but undertook to refute them in a formal an- swer.f Kings who divest themselves of their robes to mingle among polemical writ- ers have not, perhaps, a claim to much deference from strangers ; and Luther, in- toxicated with arrogance, and deeming him- self a more prominent individual among the human species than any monarch, treated Henry, in replj-ing to his book, with the rudeness that characterized his temper. A few yeai"s afterward, indeed, he thought proper to write a letter of apology for the language he had held toward the king ; but this letter, a strange medley of abjectness j * Burnet. Reeves's History of the Law, iv., p. 308. The contemporary authority is Keilwey's Reports. Collier disbelieves the murder of Hun on the authority of Sir Thomas More ; but he was surely a prejudiced apologist of the clergy", and this liistorian is hardly less so. An entrj- on the journals, 7 H. 8, drawn, of course, by some ecclesi- astic, particularly complains of Standish as the au- thor of periculosissimse seditiones inter clericam et secularem potestatem. t Burnet is confident that the answer to Luther was not written by Henrj' (vol. iii., 171), and others have been of the same opinion. The king, how- ' ever, in his answer to Luther's apologetical letter, I where this was insinuated, declares it to be his own. From Henrj 's general character and prone- ^ ness to tlieological disputation, it may be inferred that he had. at least, a considerable share in the work, thoudi probably with the assistance of some wlio had more command of the Latin language. Burnet mentions in another place that be had seen I a copy of tlie Necessary Erudition of a Cliristian I Man, full of interlineations by the king. Reformation.] FROM HENRY VII. TO GEORGE II. 45 Hnd impertinence, excited only contempt in Henry, and was published by him with a severe commentary.* Whatever appre- hension, therefore, for the future might be grounded on the humor of the nation, no king in Eui'ope appeared so steadfast in his allegiance to Rome as Henry VHI. at the moment when a storm sprang up that broke the chain forever. It is certain that Henry's maiTiage with _. ,. his brother's widow was unsup- His divorce frrnn Catha- ported by any precedent, and that, although the pope's dis- pensation might pass for a cure of all de- fects, it had been originally considered by many persons in a veiy 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 j-ears before, and declared his intention not to confirm it; an act which must naturally be ascribed to his father.f * Epist. Lutheri ad Heuricum regeni missa, &c., Lond., 152e. The letter bears date at Wittenberg, Sept. 1, 1525. It had no relation, therefore, to Henrj's quarrel with the pope, though probably Luther imagined that the king was becoming more favorably disposed. After saying that he had ■written against the king, "stultus ac praeceps," which was true, he adds, " invitantibus iis qui ma- jestali tU!B parum favebant," which was surely a pretense ; since who, at Wittenberg, in 15-21, could have any motive to wish that Henry should be 60 scurrilously treated ? He then bursts out into the most absurd attack on Wolsey : " Illud monstrum et publicum odium Dei et hominum, Cardinalis Eboracensis, pestis ilia regni tui." This ■was a singular stjle to adopt in writing to a king whom he affected to propitiate, Wolsey being nearer than any man to Heairj's heart:. Thence, relapsing into bis tone of abasement, lie says, " Ita ■nt vehementer nunc pudefactus, metuam ocnios coram majestate tua levare, qui passus sim levitate ista me moveri in talem tantumque regem perma- lignos istos operarios ; prsesertim cum sim faex et vermis, quem solo contempta oportuit victum aut neglectum esse," &c. Among the many strange things which Lutlier said and wrote, I know not one more extravagant than this letter, which al- most justifies the supposition that there was a vein of insanity in his very remarkable character. t Collier, vol. ii.. Appendix, No. 2. In the Hard- wicke Papers, i., 13, we have an account of the ceremonial of the first marriage of Henry with Catharine in 1503. It is remarkable that a person was appointed to object publicly in Latin to the maniage, as unlawful, for reasons he should there exiiibit , " whereunto Mr. Doctor Barnes shall re- ply, and declare solemnly, also in Latin, the said marriage to be good and effectual in the law of It is ti'ue that in this very 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 Catharine 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 liis passion for Anne Boleyn.* This, how- ever, seems the more probable supposition ; }-et there can be little doubt that weariness of Catharine's person, a woman considera- bly 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 canon law, the merits of that famous process W'ere so much against I 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 subse- quently assumed. It would be unnecessary to repeat what is told by so many historians, the vacillating and evasive behavior of Clement VII., the assurances he gave the king, and the arts with which he receded from them, the un- finished trial in England before his delegates, Campeggio and Wolsej', the opinions ob- tained fi-om foreign imiversities in the king's favor, not always without a little briber}',! Christ's Church, by virtue of a dispensation, which he shall have then to be openly read." There seems to be something in this of the tortuous policy of Henry VII. ; but it shows that the marriage had given offense to scrupulous minds. * See Buniet, Lingard, Turner, and the letters lately printed in State Papers, temp. Henry VIII., p. 194, 196. t Buniet wishes to disprove the briberj- of these foreign doctors. But there are strong presumptions that some opinions were got by money (Collier, ii., 58) ; and the greatest difficulty was found, where corruption perhaps had least influence, in the Sor. boime. Burnet himself proves that some of the cardinals were bribed by the king's ambassador, both in 1528 and 1532.— 'V'ol. i.. Append., p. 30, 110. See, too, Strype, i. Append, No. 40. The same writer will not allow that Henry men- aced the University of Oxford in case of non-com- pliance; yet there are three letters of his to them, a tenth part of which, considering the nature of the writer, was enough to terrify his readers. — Vol. iii.. Append., p. 25. These, probably, Burnet did not know when he published his first volume. 46 CONSTITUTIONAL HISTORY OF ENGLAND [Chap. n. and those of the same import at home, not given without a little intimidation, or the te- dious continuance of the process after its ad- journment 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 irri- tated by perpetual chicanery and breach of promise, though stimulated l)y impatient love, presumed to set at naught the juris- diction to which he had submitted by a mar- riage 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 Cath- arine by a sentence of nullity, which would more decently, no doul)t, have preceded his second marriage.* But, determined as his mind had become, it was plainly impossible for Clement to have conciliated him by any thing short of a decision, which he could not utter without the loss of the emperor's fa- vor, and the ruin of his own family's inter- ests in Italy. And even for less selfish reasons, it was an exti-emely embarrassing nieasiu'e for the pope, in the critical circum- stances of that age, to set aside a dispensa- * The kinjj's marriage is related by the earlier historians to have taken place Nov. 14, 1532. Bur- net, liowever, is convinced by a letter of Cranraer, who, be says, could not be mistaken, though he was not apprised of the fact till some time after- ward, that it vras not solemnized till about the 25th of January (vol. iii., p. 70). This letter has since been published in the Archneologia, vol. xviii., arnl in EUis's Letters, ii., 34. Elizabeth was bom September 7, 1533; for though Buniet, on the au- thority, he says, of Cranmcr, places her birth on Sept. 14, the fonner date is decisively confirmed by letters in Harl. MSS., vol. cclxxxiii., 22, and vol. dcclxxxvii., 1 (both set down incoirectly in the cat- alogue). If a late liistorian, therefore, had con- tented himself with commenting on these dates and the clandestine nature of the marriage, be would not have gone beyond the limits of that character of an advocate for one party which he lias chosen to assume. It may not be unlikely, though by no means evident, that Anne's prudence, though, as Fuller sajs of her, "she was cunning in her chas- tity," was sui-prised at the end of this long court- ship. I think a prurient curiosity about such obso- lete scandal veiy unworthy of historj'. But when this author asserts Heni-y to have cohabited with her for three years, and repeatedly calls her his mistress, when he attributes Henry's patience with the pope's chicanery to " the infocundity of Anne," and all this on no other authority than a letter of the French ambassador, which amounts hardly to evidence of a transient rumor, we can not but com- plain of a great deficiency in historical candor. | tion granted by his predecessor; knowing that, however some erroneous allegations of fact contained therein might serve for an outward pretext, yet the principle on which the divorce was commonly supported in Eu- rope went generally to restrain the dispens- ing power of the Holy See. Hence it may seem very doubtful whether the treaty which was afterward 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 resto- ration of amity through the only possible means ; when we consider the weight of the imperial party in the conclave, the dis- credit that so notorious a submission would have tlirown on the Church, and, above all, the precarious condition of the Medici at Florence in case of a niptiue with Chailes V. It was, more probably, the aim of Clement to delude Hemy once more by his promises ; but this was prevented by the more violent measures into which the car- dinals forced him, of a definitive sentence in favor of Catharine, whom the king was required, under pain of excommunication, to take back as his wife. This sentence of the 23d of March, 1534, proved a declaration of interminable war; and the king, who, in consequence of the liopes held out to him by Francis, had already dispatched an en- voj' to Rome with his submission to what the pope should decide, now resolved to break off all intercourse forever, and trust to his own prerogative and power over his sub- jects for securing the succession to the crown in the line which he designed. It was doubtless a regard to this consideration that put him upon his last overtures for an amicable settloinent with thecourtof Rome.* * The principal authority on the story of Henry's divorce from Catharine is Burnet, in the first and third volumes of his Histoiy of the Refoniiation ; the latter connecting the former from additional doc- uments. Strj-pe, in his Ecclesiastical Memorials, adds some particulars not contained in Burnet, es- pecially as to the negotiations with the pope in 1528 ; and a very little may be gleaned from Col- lier, Carte, and other writers. There are few parts of history, on the whole, that have been better elu- cidated. One exception, perhaps, may j'et be made. The beautiful and aftecting story of Catha- rine's behavior before the legates at Dunstable is told by Cavendish and H.tII, from whom later his- torians have copied it. Buniet, however, in his third volume, p. 4fi, disputes its truth, and on what should seem conclusive authority, that of tlie orig- inal register, from which it appears that the queen Refoumation.] FROM HENRY VII. TO GEORGE II. 47 But- long before this final cessation of in- tercourse with that court, Henry had en- tered upon a course of measures which would have opposed fresh obstacles to a re- newal 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 qufirrel, not, in this instance, from mere terror, but because a jealousy of ecclesias- tical power and of the Roman court had long been a sort of national sentiment in England. The pope's avocation of the pro- cess to Rome, 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 aftei-vi'ard was con- tinued through several sessions (an unusual circumstance), till it completed the separa- tion of this kingdom fi-om the supremacy of Rome. In the progi-ess of ecclesiastical usurpation, the papal and episcopal powers had lent mutual support to each otlier; both, consequently, were involved in the 8ame odium, and had become the object of restrictions in a similar spirit. Warm at- tacks were made on the clei-gy by speeches never came into court but once, June 18, 1529, to read a paper protesting against the jurisdiction, and that the king never entered it. Carte accord- ingly treated the story as a fabrication. Hume, of course, did not choose to omit so interesting,' a cir- cumstance ; but Dr. Lingard has pointed out a let- ter of the king, which Burnet himself had printed, vol. i., Append., 7H, mentioning tlie queen's pres- ence as well as his own, on June 21, and greatly corroborating the popular account. To say the truth, tliei'e is no small difficulty in choosing be- tween two authorities so considerable, if they can not be reconciled, which seems impossible ; but, npon the wliole, the preference is due to Henry's letter, dated June 23, as he could not be mistaken, and had no motive to misstate. This is not altogether immaterial ; for Catharine's appeal to Henry, de integi-itate corporis usque ad secundas nuptias servata, without reply on his part, is an important circumstance as to that part of the question. It is, Iiowever, certain, that whether on this occasion or not, she did constantly declare this ; and the evidence adduced to prove the contrary is very defective, especially as oppos- ed to tlie assertion of so virtuous a woman. Dr. Lingard says that all the favorable answers which the king obtained from foreign universities went upon the supposition that the former mann age had been consummated, and were of no avail unless that could be proved. See a letter of Wolsey to the king, July 1, 1.527, printed in State Papers, temp. Henry VIII., p. VJi ; whence it appears that the queen had been consistent in her denial. in the Commons, which Bishop Fisher se- verely reprehended in the Upper House. This provoked the Commons to send a com- plaint to the king by their speaker, demand- ing reparation ; and Fisher explained away the words that had given offense. 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 anthority as papal legate contra- vened a statute of Richard II., and that both himself and the whole body of the cler- gy, by their submission to him, had incurred the penalties of a prsmunire, that is, the forfeiture of their movable estate, besides imprisonment at discretion. These old stat- utes in restraint of the papal jurisdiction had been so little regarded, and so many legates had acted in England without objec- tion, that Henry's prosecution of the Church on this occasion was extremely harsh and unfair. The clergy, however, now felt themselves to be the weaker party. In con- vocation they implored the king's clemency, and obtained it by paying a large sum of money. In their petition he was stj'led the protector and supreme head of the Church and clergy of England. Many of that body were staggered at the unexpected introduc- tion of a title that seemed to strike at tho supi'emacy they had always acknowledged in the Roman See. And in the end it passed only with a veiy suspicious qualifica- tion, " so far as is permitted by the law of Christ." Henry had previously given tho pope several intimations that he could pro- ceed in his divorce without him ; for, be- sides a strong remonstrance by letter from the temporal peers as well as bisliops against the procrastination of sentence in so just a suit, the opinions of English and for- eign universities had been laid before both houses of Parliament and of convocation, and the divorce approved without difficulty in the former, and by a great majority in the latter. These proceedings took place in the first months of 1531, while the king's ambassadors at Rome were still pressing for * Stat. 21 Hen. 8, c. 5, 6. Strype, i., 7.-!. Burnet, 83. It cost a thousajid marks to prove Sir William Compton's will in 1528. These exactions had been much autnncntcd by Wolsey, who interfered, as legate, with the prerogative court. 48 CONSTITUTIONAL HISTORY OF ENGLAND [Chap. IL a favorable sentence, though with dimin- ished hopes. Next year the annates, or first-fruits of benefices, a constant source of discord between the nations of Europe and their spn-itual chief, were taken away by act of Parliament; but with a remarkable con- dition, that if the pope would either abolish the payment of annates, or reduce them to a moderate burden, the king might declare before the next session, by letters patent, whether this act, or any part of it, should be observed. It was accordingly confirmed by letters patent more than a year after it re- ceived 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 ascenden- cy over the English Church and kingdom. But probably he could not have done so in ita full extent. Sir Thomas More, who had rather complied than concurred with the proceedings for a divorce, though his acceptance of the gi-eat seal on Wolsey's disgrace would have been inconsistent with his character, had he been altogether op- posed in conscience to the king's measures, now thought it necessary to resign, when the papal authority was steadily, though grfidually assailed.* In the next session * It is hard to say wliat were More's original Bentiments about the divorce. In a letter to Crom- well (Strj-pe, i., 183, and App., No. 48 ; Buniet, App., p. 280). he speaks of himself as always doubt- ful. But, if his disposition had not been rather fa- vorable to the king, would he have been offered, or have accepted, the great seal ? We do not, in- deed, find his name in the letter of remonstrance to the pope, signed by the nobility and chief com- moners in 1530, which Wolsey, tlioueh then in dis- grace, very willingly subscribed. But in March, 1531, he went down to the House of Commons, at- tended by several lords, to declare the king's scru- ples about his marriage, and to lay before them the opinions of universities. In this he perhaps thought himself acting ministerially. But there can be no doubt that he always considered the divorce as a matter wholly of the pope's competence, and which no other party could take out of his hands, though he had gone along cheerfully, as Burnet says, with the prosecution against the clergy, and wished to cut off the illegal jurisdiction of the Iloman See. The king did not look upon him as hostile ; for even so late as l.")32. Dr. Bennet, the envoy at Rome, proposed to the pope that the cause should be tried by four commissioners, of whom the king should name one. either Sir Thomas More, or Stokesly, bishop of London. — Burnet, i., 126. 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 preced- ed it, secure from being annulled by the papal court. Henry, however, still advan- ced very cautiously ; and on the death of Warham, archbishop of Canterbury, not long before this time, applied to Rome 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 instance of any exercise of the pa- pal supremacy in this reign. An act fol- lowed in the next session, that bi-shops elect- ed by their chapter on a royal recommend- ation should be consecrated, and archbish- ops receive the pall, without suing for the pope's bulls. All dispensations and licenses hitherto gianted by that court were set aside by another statute, and the power of issuing them in lawful cases transferred to the Archbishop of Canterbury. 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 con- vocation. But this title was not formally declared by Parliament to appertain to the crown till the ensuing session of Parliament.* By these means was the Church of Eng- land altogether emancipated fi-om Sop.-»raiinn the superiority of that of Rome. c^^J.^.^of For as to the pope's merely spir- R.^me. itual primacy and authority in matters of faith, which are, or at least were, defend- ed 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 lit- tle peculiar attention at the time, and to * Dr. Lingard has pointed out, as Burnet had done less distinctly, that the bill abrogating the papal supremacy was brought into the Commons in the beginning of March, and received the royal .assent on the 30th, whereas the determination of the conclave at Rome against the divorce was on the 23d ; so that the latter could not have been the cause of this final rupture. Clement VII. might have been outwitted in his turn by the king, if, after pronouncing a decree in favor of the divorce, he had found it too late to regain his jurisdiction in England. On the other hand, so flexible were the Parliaments of this reign, that, if Henry had made terms with the pope, the supremacy might have revived again as easily as it had been extinguished. Reformation.] FROM HENRY VII. TO GEORGE II. 49 linve dropped oft' as a dead branch, when the ax had lopped the fibers that gave it nourishment. Like other momentous rev- ohitions, this divided the judgment and feel- ings of the nation. In the previous aft'air of Catharine's divorce, generous minds were more influenced by the rigor and indignity of her treatment than by tlie king's inclina- tions, or the venal opinions of foreign doc- tors in law. Bellay, bishop of Bayotme, the French ambassador at London, wrote home in 1528, that a revolt was apprehend- ed from the general unpopularity of the di- vorce.* Much difficulty was found in pro- curing the judgments of Oxford and Cam- bridge against the marriage ; which was ef- fected in the former case, as is said, by ex- cluding the masters of arts, the younger and less worldly part of the University, from their right of suflrage. Even so late as 1532, in the pliant House of Commons, a member had the boldness to move an ad- dress 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 sentence by a domestic jurisdiction, so long as a chance of the pope's sanction remained. The aversion entertained by a large part of the community, and especially of the clerical order, toward the divorce, was not, perhaps, so generally founded upon motives of justice and compassion as on tlie obvi- ous tendency which its prosecution latter- ly manifested to bring about a separation from Rome. Though the principal Luther- ans of Gennany were far less favorably dis- posed to the king in their opinions on this subject than the Catholic theologians, hold- ing that the prohibition of raariying a broth- er'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 * Bumet, ill., 44 ; and App., 24. t Conf. Bumct, i., 94, and App., No. 35. Sti-ype, i., 230. Slcidan, Hist, de la Reformation, par Couraycr, 1., 10. The notions of these divines, as here stated, are not very consistent or intelligible. The Swiss Reformers were in favor of the divorce, though they advised that the Princess Mary should not be declared illegitimate. Luther seems to have inclined towai-d compromising the difference by the marriage of a secondary wife. — Lingard, p. 172. Melancthon, this writer says, was of the same opin- ion. Bumet, indeed, denies this ; but it is render- ed not improbable by tlie well-authenticated fact D the interests of Anne Boleyn and of the Reformation were considered as the same. She was herself strongly suspected of an inclination to the new tenets ; and her friend Craumer had been the most active person both in promoting the divorce, and the rec- ognition of the king's supremacy. The lat- ter was, as I imagine, by no means unac- ceptable to the nobility and gentry, who saw in it the only effectual method of cutting off the papal exactions that had so long impov- erished 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 Prote"S- tant doctrine. But the common people, es- pecially in remote counties, had been used to an implicit reverence 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 themselves, at the pleasure of a disappointed monarch, in the most dan- gerous crisis of religion, from the bosom of Catholic unity.* They complied, indeed, with all the measures of government far more than men of rigid conscience could have endured to do ; but many, who want- ed the coui-age of More and Fisher, were that these divines, together with Bucer, signed a pennission to the Landgi-ave of Hesse to take a wife or concubine, on account of the dninkenness and disagi'eeable person of his landirravine. — Bossuet, Hist, des Var. des Egl. Protest, vol. i., where the instrument is published. [Cranmer, it is just to say, remonstrated with Osiander on this pennis- sion, and on the general laxity of the Lutherans in matrimonial questions. — Jenkins's edition, i., 303.] Clement VII., however, recommended the king to many immediately, and then prosecute his suit for a divorce, which it would be easier for liim to ob- tain in such circumstances. This was as early as January, 1528. (Bumet, i., App., p. 27.) But at a much later period, September, 1530, he expressly suggested the expedient of allowing the king to re- tain two wives. Tho'hgh the letter of Cassali, the king's ambassador at Rome, containing this propo- sition, was not found by Bumet, it is quoted at length by an author of unquestionable veracity, Lord Herbert. Henry had himself, at one time, favored this scheme, according to Bumet, wlio does not, however, produce any authority for tiie instruc- tions to that effect said to have been given to Brian and Vannes, dispatched to Rome at the end of 1528. But at the time when the pope made this proposal, the king had become exasperated against Catharine, and little inclined to treat either her or the Holy See with an}' respect. * Stiype, i., 151, et alibi. 50 CONSTITUTIONAL HISTORY OF ENGLAND [Chap. IL not far removed from their way of thinking.* This repugnance to so gi*eat an alteration showed itself, above all, in the monastic or- ders, some of whom by wealth, hospitality, and long-established dignity, others by ac- tivity in preaching and confessing, enjoyed a very considerable influence over the poor- er class. But they had to deal with a sov- ereign whose policy as well as temper dic- tated that he had no safety but in advancing ; and their disaffection to his government, while it overwhelmed them in ruin, pro- duced a second grand innovation in the ec- clesiastical polity of England. The enormous, and in a great measure Dissoiutmn ill-gotten, opulence of the regu- of monaster- lar clergj' had long since excited jealousy in eveiy part of Eui'ope. Though the statutes of mortmain under Edward I. and Edward III. had put some obstacle to its increase, yet, as these were eluded by licenses of alienation, a larger proportion of landed wealth was constantly accumulating in hands which lost nothing tliat they had gi-asped.f A writer much inclined to partiality toward the monaster- ies says, that they held not one fifth part of the kingdom; no insignificant patrimony ! He adds, what may probably be ti'ue, that, fJirough granting easy leases, they did not enjoy more than one tenth in value. t These vast possessions were veiy unequally dis- tributed among four or five hundred monas- teries. Some abbots, as those of Reading, GlastonbuiT, and Battle, lived in princely splendor, and were, in eveiy sense, the spir- itual peers and magnates of the I'ealm. In other foundations, the revenues did Uttle * Strype, passim. Tunstal, Gardiner, and Bon- ner wrote in favor of the royal supremacy; all of tliem, no doubt, insincerely. The first of these lias escaped sevei'e censui-e by the mildness of his gen- eral character, but was full as much a temporizer as Cranmer. But the history of this ])eriod has teen written with such undisguised partiality by Burnet and Strj pe on the one hand, and lately by Dr. Lingard on the other, that it is almost amus- ing to find the most opposite conclusions and gen- eral results from neai-ly the same premises. Col- lier, though with many prejudices of his own, is, an things considered, the fairest of our ecclesiastical writers as to this reign. t Bumet, 188. For the methods by which the regulars acquired wealth, fair and unfair, I may be allowed to refer to the View of the Middle Ages, ch. 7, or rather to the sources from which the sketch there given was derived. t Harmer's Specimens of Errors in Bumet. more than afford a subsistence for the monks, and defray the needful expenses. As they were in general exempted from episcopal visitation, and intrusted with the care of their own discipline, such abuses had gradually pi'evailed and gained strength by connivance, as we may naturally expect in coi-porate bodies of men, leading, almost of necessity, useless and indolent lives, and in whom veiy indistinct views of moral ob- ligations wei"e combined with a great facil- ity of violating them. The vices that for many ages had been supposed to haunt the monasteries had certainly not left their pre- cincts in that of Heniy VIII. Wolsey, as papal legate, at the instigation of Fox, bish- op of Hereford, a favorer of the Reforma- tion, commenced a visitation of the profess- ed as well as secular clergy in 1.52.3, in con- sequence of the general complaint against , their manners.* This great minister, though not, perhaps, very rigid as to the moi-ahty of the Church, was the first who set an ex- ample of reforming monastic foundations in the most efficacious manner, by converting their revenues to different pm'poses. Full of anxious zeal for promoting education, the noblest part of his character, he obtained bulls from Rome suppressing many con- vents (among which was that of St. Frides- wide at O.xford), in order to erect and en- dow a new college in that University, his favorite work, which, after his fall, was more completely established by the name of Christ Church. f A few more were af- terward extinguished through his instiga- tion; and thus the prejudice against inter- ference with tliis species of property was somewhat worn off, and men's minds grad- ually prepared for the sweeping confisca- tions of Cromwell. The king, indeed, was abundantly willing to replenish his excheq- uer by violent means, and to avenge him- self on those who gainsayed his suprema- cy ; 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 surmised, by a secret partiality towai-d the Reformation, devised * Strype, i., Append., 19. t Burnet. Strype. Wolsey alleged as the ETound for this suppression, the great wickedness that prevailed therein. Strjpe says the number was twenty; but Collier, ii., 19, reckons them at forty. Reformation.] FROM HENKY VII. TO GEORGE II. 51 and cairied on with complete success, if not with the utmost prudence, a measure of no incoivsiderable hazard and difficulty. For such it surely was, under a .system of gov- ernment which rested so much on antiqui- ty, and in spite of the peculiar sacredness which the English attach to all fi-eehold property, to annihilate so many prescrip- tive baronial tenures, the posse.ssors where- of composed more than a third part of the House of Lords, and to subject so many estates, which the law had rendered inal- ienable, to maxims of escheat and forfeiture that had never been held applicable to their tenure. But for this purpose it was neces- sary, by exposino; the gi-oss corrujjtions 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 vicege- rent of the king's ecclesiastical supremacy, many things were done in an arbitraiy man- ner, and much was unfairly represented.* Yet the reports of these visitors are so mi- nute and specific, that it is rather a prepos- terous degree of incredulity to reject their testimony, whenever it bears liard on the regulars. It is always to be remembered, 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 preced- ing ages. Nor do I find that the reports of this visitation were impeached for gen- eral falsehood in that age, whatever exag- geration there might be in particular cases. And surely the commendation bestowed on some religious houses as pure and unexcep- tionable, may afford a presumption that the censure of others was not an indiscriminate prejudging of their merits. f * Collier, though not implicitly to be trasted, tells some hard tmtlis, and charsrcs Cromwell with receiving bribes from several abbeys in order to spare them, p. 159. This is repeated by Lingard, on the authority of some Cottouian manuscripts. Even Burnet speaks of the violent proceedings of a Doctor Loudon toward the monasteries. This man was of infamous character, and became after- ward a conspirator against Cranmer, and a perse- cutor of Protestants. t Buniet, 190. Sti-j-pe, i., ch. 35 ; see especially p. -257. Ellis's Letters, ii., 71. We should be on our guard against the Romanizing high-churchmen, such as Collier, and the whole class of antiquaries, Wood, Heame,, Drake, Browne Willis, &c., &c., The dread of these visitors soon induced a number of abbots to make surrenders to the king; a step of very questionable legal- ity. But in the next session the smaller convents, whose revenues were less than c£200 a year, were suppressed by act of Parliament, to the numl)er of three hund- red and seventy-six, and their estates vest- ed in the crown. This summary spoliation led to the gi-eat northern rebellion soon af- terward. It was, in fact, not merely to wound the people's strongest impressions of religion, and especially those connected with their departed friends, for whose souls prayers were offered in the monasteries, but to deprive the indigent, in many places, of succor, and the better rank of hospitable reception. This, of course, was experi- enced in a far greater degree at the disso- lution of the larger monasteries, which took place in 1540. But, Henry having entirely .subdued the rebellion, and being now ex- ceedingly dreaded by both the religious par- ties, this measure produced no open resist- ance, 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 convents.* These who are, with hardly an exception, partial to the monastic orders, and sometimes scarce keep on the mask of Protestantism. No one fact can be better supported by cun-ent epinion, and that general testimony which carries conviction, than the relax- ed and vicious state of those foundations for many ages before their fall. Kcclesiastical writers had not then learned, as they have since, the trick of suppressing what might excite odium against their church, but speak out boldly and bitterly. Thus wefindin Wilkins, iii., C30, a bull of Innocent VIII. for the refomi of monasteries in England, charging many of them with dissoluteness of life. And this is followed by a severe monition from Archbishop Morton to the Abbot of St. Alban's, imputing all kinds of scandalous vices to him and hjs monks. Those who reject at once the reports of Heniy's visitors, will do well to consider this. See, also, Fosbrook's British Monachism, passim. [The " Letters relating to the Suppression of Monas- teries," published by the Camden Society, and edited by Mr. Thomas Wright, 1843, contain a part only of extant documents illustrative of this great transaction. There seems no reason for set- ting aside their evidence as wholly false, though some lovers of monachism raised a loud clamor at their publication. 184.5.] • The preamble of 27 H. 8, c. 28, which gives the smaller monasteries to the king, after reciting that " manifest sin, vicious, carnal, and abominable living, is daily used and committed commonly in such little and small abbeys, priories, and other re- 52 CONSTITUTIONAL HISTORY OF ENGLAND [Chap. n. gi'eat foundations were all surrendered ; a few excepted, which, against every princi- ple 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 suirenders and for- feitures. Some 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 monastic foundations, while it took abund- ant care to presei-ve any rights of prop- erty which private persons might enjoy over the estates thus escheated to the crow], vouchsafed not a word toward se- cuiing the slightest compensation to the dis- possessed owners. The fell of the mitred abbots changed the proportions of the two estates which con- stitute the Upper House of Parliament. ligious houses of monks, canons, and nuns, where the congregation of such rehgious persons is under the number of twelve persons," bestows praise on many of the gi-eater foundations, and certainly does not intimate that their fate was so near at hand. Nor is any misconduct alleged or insinuated against the greater monasteries in the act 31 H. 8, c. 13, that abohshes them ; which is rather more remark- able, as in some instances the religious had been induced to confess their evil lives and ill deserts. —Burnet, 236. * Id. ibid., and Append., p. 151. CoUier, 167. The pensions to the superiors of the dissolved great- er monasteries, says a writer not likely to spare Hem-y's government, appears to have varied from £266 to £6 per armum. The priors of cells received generally £13. A few, whose sernces had merited the distinction, obtained X20. To the other monks were allotted pensions of six, four, or two pounds, with a small sum to each at his departure, to pro- vide for his immediate wants. The pensions to nuns averaged about X4. — Lingard, vi., 341. He admits that these were ten times their present value in money ; and surely they were not un- reasonably small. Compare them with those, gen- erally and justly thought mmiificent, which this countiy bestows on her veterans of Chelsea and Greenwich. The monks had no right to expect more than the means of that hard fare to which they ought by their rules to have been confined in the convents. The whole revenues were not to be shared among them as private property. It can not, of course, be denied, that the compulsory change of life was to many a severe and unmerited hai-dship ; but no gveat revolution, and the Refor- mation as little as any, could be achieved without much private suffering. Though the number of abbots and priors to whom Wilts of summons were directed va- ried considerably in different Parliaments, they always, joined to the twenty-one bish- I ops, preponderated over the temporal peers.* It was no longer possible for the prelacy to offer an efficacious opposition to the refor- mation they abhorred. Their own baro- nial tenure, their high dignity as legislative counselors of the land, remained ; but, one branch as ancient and venerable as their own thus lopped off, tVie spiritual aristocracy was reduced to play a very secondary part in the councils of the nation. Nor could the Prot- j estant religion have easily been established by legal methods under Edward and Eliza- beth without this previous destruction of the monasteries. Those who, professing an attachment to that religion, have swollen the clamor of its adversaries against the dis- solution of foundations that existed only for the sake of a different faith and worship, seem to me not very consistent or enlight- I ened reasoners. In some, the love of an- ' tiquity produces a sort of fanciful illusion ; ^ and the veiy sight of those buildings, so I magnificent in their prosperous hour, so i beautiful even in their present ruin, begets i a sympathy for those who founded and in- habited them. In many, the violent cours- es of confiscation and attainder which ac- companied 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 con- demn that end itself either as sacrilege, or at least as an atrocious violation of the rights of property. Others, again, who acknowl- edge that the monastic discipline can not be reconciled with the modern system of relig- ion, or with public utility, lament only that these ample endowments were not bestowed upon ecclesiastical corporations, freed from * The abbots sat till the end of the first session of Henrj 's sixth Parliament, the act extinguishing them not ba\'ing passed till the last day. In the next session they do not aitpear, the writ of sum- mons not being supposed to give them personal seats. There are, indeed, so many parallel ui- stanccs among spiritual lords, and the principle is so obsaous, that it would not be worth noriciug, but for a sti'ange doubt said to be thrown out by some legal authorities, near the beginning of George III.'s reign, in the case of Pearce, bishop of Roches- ter, whether, after resigning his see, he would not retain his seat as a lord of Parliament ; in conse- I quence of which, his resignation was not accepted. Reformation.] PROM HENRY VII. TO GEORGE 11. 53 the monkish cowl, but still belonging to that si)iritiml 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 sus- tained the dignity of the crown and supplied the means of public defense without bur- dening 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 censiu'es, I must own myself of opinion, both that the abolition of monastic institutions might have been conducted in a manner consonant to justice as well Eliz., c. 1,5. § I know not how to charcre the Catholics with the conspiracy of tlie two Poles, nephews of the cardinal, and some others, to obtain five thousand troops from the Duke of Guise, and proclaim Maiy The act entitled " for the assurance of tlie queen's royal power over all statute of estates and subjects within her do- i^^^- minions," enacts, with an iniquitous and san- guinary 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 a[)pointed under the great seal. The penalty for the first refusal of this oath was that of a prae- munire ; 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 trea- son. The oath of supremacy was imposed by the statute on every member of the House of Commons, but could not be ten- dered to a peer; tlie queen declaring her full confidence in those hereditaiy counsel- ors. Several peers of great weight and dignity were still Catholics.* This harsh statute did not pass without op- position. Two speeches against ~ , , f 1 o Sppprh of it have been preserved ; one by Lord Mimta- Lord Montagu in the House of ^" Lords, the other by Mr. Atkinson in the Commons, breathing such generous abhor- rence of persecution as some erroneously imagine to have been unknown to that age, because we rarely meet with it in theolog- ical writings. " This law," said Lord Mon- tagu, " is not necessary, forasmuch as the Catholics of this realm disturb not, nor hin- der the public affiiirs of the realms, 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 queen. This seems, however, to have been the immediate provocation for the statute 5 Eliz. ; and it may be thought to indicate a good deal of dis- content in that party upon which the cons])irators relied. But as Elizabeth spared the lives of all who were arraigned, and we know no details of the case, it may be doubted whether their inten- tions were altogether so criminal as was charged. — Strype, i., 333. Camden, 388 (in Kennet). Strype tells us (i., 374) of resolutions adopted against the queen in a consistory held by Pius IV. in 1.563 ; one of these is a pardon to any cook, brewer, vintner, or other, that would poison her. But this is so unlikely, and so little in that pope's character, that it makes us suspect the rest as false information of a spy. t 5 Eliz., c. 1. 76 COXSTITUTIONAL HISTORY OF ENGLA>rD [Chap. HL thereby the reahn doth receive any hurt or damage by them. They have brought into the realm no novelties in docti-ine and re- ligion. This being tnie 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 gi'ief, med- icines are superfluous, and also hurtful and dangerous. I do enti'eat," he says after- ward, " whether it be just to make this pe- nal statute to force the subjects of this realm to receive and believe the religion of Prot- estants on pain of death. This I say to be a thing most unjust, for it is repugnant to the natural liberty of men's understanding : for understanding may be persuaded, but not forced." And further on: "It is an easy thing to understand that a thing so unjust, and so contrary to all reason and liberty of man, can not be put in execution but with great incommodity and difficulty. For what man is there so without courage and stom- ach, or void of all honor, that can consent or agree to receive an opinion and new re- ligion by force and compulsion, or will swear that he thinketh the conti-aiy to what he thinketh ? To be still, or dissemble, may be borne and suffered for a time — to keep his reckoning with God alone ; but to be compelled to Ue and to swear, or else to die therefor, 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 conti'ary of what eveiy good prince and well-advised commonwealth ought to seek and pretend, that is, to keep their kingdom and government in peace."* I am never very willing to admit as an Statute of apology for unjust or cruel enact- 15fi2 not fill- ments, that they are not design- ly enforced. generally executed: a pretext often insidious, always insecure, and * Strype, Collier, Parliament. History. The original source is the manuscript coUecrions of Fox the martyrologfist, a very unsuspicious authority; BO that there seems every reason to consider this speech, as well as Mr. Atkinson's, authentic. The following is a specimen of the sort of answer given to these arsruments : " They say it touches con- science, and it is a thing wherein a man ought to have a scruple ; but if any hath a conscience in it, these fourj-ears' space might have settled it. Also, after his first refusal, he hath three months' respite for conference and settling of his conscience." — Strype, 270. tending to mask the approaches of arbitrary government. 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 colleagues was more naiTow and vindictive. Several of the deprived prelates had been detained in a ' sort of honorable custody in the palaces of , their succes.sors.f Bonner, the most justly j obnoxious of them all, was confined in the Marshalsea. Upon the occasion of this new statute. Horn, bishop of Winchester, indig- nant at the impunity of such a man, pro- ceeded to tender him the oath of suprem- acy, 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 Parliament, declaring the present bishops to have been legally consecrated. J This stat- ute, and especially its preamble, might lead a hasty reader to suspect that the celebra- ted story of an irregular consecration of the first Protestant bishops at the Nag's Head Tavern was not whoUy undeserving of cred- it. 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 * Strype's Life of Parker, 125. t Strj-pe's Annals, 149. Tunstall was treated in a very handsome mamier by Parker, whose guest he was. But Feckenham, abbot of Westminster, met with rather unkind usage, though he had been active in saving the lives of Protestants under Mary, from Bishops Horn and Cox (the latter of whom seems to have been an honest, but narrow- spirited and peevish man), and at last was sent to Wisbeach jail for refusing the oath of supremacy. — Strj-pe, i., 4o7; ii., 526. Fuller's Church His- tory-, 178. t S Eliz., c. 1. Eleven peers dissented, all noted Catholics, except the Earl of Sussex. — Sttype, i., 492. Eliz. — Catholics.] FROM HENRY VII. TO GEORGE 11. 77 heavy penalries on Catholic priests Applicition " ,. . , ,. of the em- lor reiusing the act oi supremacy, {lairof'the ^^^^^ Emperor Ferdinand ad- English dressed two letters to Elizabeth, a lu ICS. interceding for the adherents to that religion, both with respect to those new severities to which they might become lia- ble by conscientiously declining that oath, and to the prohibition of tlie free exercise of their rites. He suggested that it might be reasonable to allow them the use of one church in eveiy city. And he concluded with an expression, which might possibly be designed to intimate that his own conduct towai-d the Protestants in his dominions would be influenced by her concurrence in Lis request.* Such considerations were not without great importance. The Protestant religion was gaining ground in Austi'ia, where a large proportion of the nobility as well as citizens had for some years earnestly claimed its public toleration. Ferdinand, prudent and averse from bigoted counsels, and for every reason solicitous to heal the wounds which religious differences had made in the empire, while he was endeavoring, not absolutely without hope of success, to obtain some concessions from the pope, had shown a disposition to gi-ant further indul- gences to his Protestant subjects. His son 3Iaximjlian, not only through his moderate temper, but some real inclination toward the new doctrines, bade fair to carry much fur- ther the liberal policy of the reigning em- peror.f It was consulting veiy little the general interests of Protestantism, to disgust pei-sons so capable and so well disposed to befriend it. But our queen, although free from the fanatical spirit of persecution which * Nobis vero factura est rem adeo gratam, ut omnem simns datiiri operam, quo possimus earn rem serenitati vestrae mutuis benevolentilatos Cathol- icos captos et fugatos, populus velut ovium gres sine pastore in magnis tenebris et caligine anima- riim suarum oberravit. Unde etiam factum est multi ut Catholicorum superstitioiiibus impiis dis- simulationibus et gravibus jaramentis contrasanctae sedis apostolicoB auctoritatem, cum admodum par\ o aut plane nullo conscientiarum suaram scrupolo assuescerent. Frequentabant ergo hasreticorum synagogas, intererant eorum concionibus, atque ad easdem etiam audiendas filios et familiam suam compellabant. Videbatur illis ut Catbolici essent, sufficere una cum haereticis eorum templa non adire, ferri autem posse si ante vel post illos eadem in- trassent. Communicabatur de sacrilega Calvini coenft, vel secreto et clanculum intra privatos pai'i- etes. Missam qui audiverant, ac postea Calviuia- nos se haberi volebaut, sic se de proecepto satisfe- cisse existimabant. Deferebantur filii Catbolico- rum ad baptisteria liaereticorum, ac inter illorum maims matrimouia conti'ahebant. Atque liaec om- nia sine omni scrupulo fiebant, facta propter Ca- tholiconim sacerdotum ignorautiam, qui talia vel li- cere credebant, vel timore quodam pnTspediti dis- simulabant. Nunc autem per Dei misericordiam omnes Catliolici iutelligunt, ut salveutur non satis esse corde fidem Catholicam credere, sed eandem etiam ore oportere contiteri. — Ribadueira de Scbis- mate, p. 53. See, also, Butler's English Catholics, vol. iii., p. 156. [There is nothing in this statement of the fact which sen-es to countenance the very un- fair misrepresentations lately given, as if the Roman Catholics generally had acquiesced in the Anglican worship, beUeving it to be substantially the same as their own. They frequented our churches, be- cause the law compelled them by penalties so to do, not out of a notion that very little change had been made by the Reformation. It is true, of course, that many became real Protestants by ha- bitual attendance on our rites, and by disuse of their own. But these were not the recusants of a later period. 1845.] I vidual intercourse with a priest, its essential 1 requisite, can be preserved. Priests there- j fore traveled the country in various dis- j guises, to keep alive a flame which the prac- j tice of outsvard conformity was calculated I to extinguish. There was not a county j throughout England, says a Catholic histori- an, where several of Maiy's clergy did not j reside, and were commonly called the old I priests. They served as chaplains in pri- I vate families.* By stealth, at the dead of ! night, in private chambers, in the secret [ Im-king-places of an ill-peopled countiy, with all the mystery that subdues the imagination, I with all the mutual trust that invigorates j constancy, these proscribed ecclesiastics cel- I ebrated their solemn rites, more impressive in such concealment than if suiTounded by all their fonner splendor. The strong pred- ilection, indeed, of mankind for mystery, t which has probably led many to tamper in political conspiracies without much further motive, will suffice to preserve secret asso- ciations, even where their purposes are far less interesting than those of religion. Many of these itinerant priests assumed the char- acter of Protestant preachers ; and it has been said, with some truth, though not, prob- ably, without exaggeration, that, under the ' directions of their crafty court, they foraent- I ed the division then springing up, and min- ! gled with the Anabaptists and other secta- ries, in the hope both of exciting dislike to the Establishment, and of instilling their o\vn tenets, slightly disguised, into the minds of unwary enthusiasts. f It is my thorough conviction that the per- * Dodd's Church Hist., vol. ii., p. 8. t Thomas Heath, brother to the late Archbishop of York, was seized at Rochester about 1570, well provided with Anabaptist and Arian tracts for cir- culation.— Strype, i., 521. For other instances, see p. 281, 434. Life of Parker, 244. Nalson's Collec- tions, vol. i., Introduction, p. 39, &c., fi-om a pam- phlet written also by Nalson, entitled Foxes and Firebrands. It was surmised that one Heru^- Nic- olas, cliief of a set of fanatics called the Family of Love, of whom we read a great deal in this reign, and who sprouted up again about the time of Cromwell, was secretly employed bj- the popish partj'. — Strv"pe, ii., 37, 589, 595. But these conjec- tures were very often ill founded, and possibly so in this instance, though the passages quoted by Strype (589) are suspicious. Brandt, however (Hist, of Reformation in Low Coimtries, vol. i., p. 105), does not suspect Nicolas of being other than a fanatic. His sect appeared in the Nether- lands about 1535. Eliz. — Catliolics.] FROM HENRY VII. TO GEORGE 11. 79 Persecution secutioii, for it can obtain no brt- hcs'in tiie'en- tc'' name,* carried on against the suing period. English CathoMcs, however it might serve to delude the government by producing an apparent conformity, could not but excite a s[)irit of disloyalty in many ad- herents of that faith. Nor would it be safe to assert that a more conciliating policy would have altogether disanued their hos- tility, mucli less laid at rest those busy hopes of the future, which the peculiar circum- stances 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 3.5 H. 8, c. 1, had settled the crown upon her, and thus far resti-ained 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 testa- ment had bequeathed the kingdom to Eliza- beth after her sister Mary, and the common consent of the nation had ratified her pos- session. 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 prefer- red an hereditary to a Parliamentary title, and was reckoned by the far gi-eater part of the nation its presumptive heir after her decease. There could, indeed, be no ques- * "That cliurcli [of England] and the queen, its re-founder, are clear of persecution, as regards the Catholics. No church, no sect, no individual even, had yet professed tho principle of toleration." — Southey's Book of the Church, vol. ii., p. 285. If the second of these sentences is intended as a proof of the first, I must say it is little to the purpose. But it is not true in this broad way of assertion. Not to mention Sir Thomas More's Utopia, the priuciide of toleration had been avovi'ed by the Chancellor I'Hopital, and many others in France. I mention him as on the strongest side ; for, in fact, the weaker liad always professed the gen- eral principle, and could demand toleration from those of different sentiments on no other plea. And as to capital inflictions for heresy, which Mr. S. seems chiefly to have in his mind, there is reason to believe that many Protestants never approved them. Slcidan intimates, vol. iii., p. 263, that Cal- vin incurred odium by the death of Servetus. And Melanchthou says expressly the same thing, in the letter which he unfortunately wrote to the Reform- er of Geneva, declaring his own approbation of the crime ; and which I am willing to ascribe rather to his constitutional fear of giving offense than to sin- cere conviction. tion of this, had the succession been left to its natural course. But Henry uncertain had exercised the power with succession of * trie crown be- which his Parliament, in too serv- iween the ile a spirit, yet in the plenitude scoii'andtnd of its sovereign authority, had in- SufToik. vested him, by settling the succession in re- mainder upon the house of Suffolk, descend- ants of his second sister Mary, to whom he postponed the elder line of Scotland. Mary left two daughters, Frances and Eleanor. The former became wife of Grey, marquis of Dorset, created Duke of Sufifolk by Ed- ward, and had three daughters — Jane, whose fate is well known, Catharine, and Mary. Eleanor Brandon, by her union with the Earl of Cumberland, had a daugh- ter, who married the Earl of Derby. At the beginning of Elizabeth's reign, or, rath- er, after the death of the Duchess of Suf- folk, Lady Catharine Grey was by statute law the presumptive heiress of the crown ; but, according to the rules of hereditary de- scent, which the bulk of mankind do not readily permit an arbitrary and capricious enactment to disturb, Maiy, queen of Scots, gi'and-daugViter of Margaret, was the indis- putable representative of her royal progen- itors, and the next in succession to Eliza- beth. This reversion, indeed, after a youthful princess, might well appear rath- ' . , , , . Elizahetli's er an improbable contingency, unwiiiing- It was to be expected that a fer- ""s to decide the sQcces- tile marriage would defeat all sion, or to speculations about her inherit- ance ; nor had Elizabeth been many weeks on the throne, before this began to occupy her subjects' minds.* Among several who were named, two very soon became the prominent candidates for her favor, the Archduke Charles, son of the Emperor Ferdinand, and Lord Robert Dudley, some time after created Earl of Leicester ; one recommended by his dignity and allian- ces, the other by her own evident par- tiality. She gave at the outset so little encouragement to the former proposal, that Leicester's ambition did not appear extravagant. f But her ablest counselors, who knew his vices, and her greatest peers, who thought his nobility recent and ill ac- * The address of the House of Commons, begging the queen to marry, was on Feb. 6, 15o9. t Hayues, 233. 80 CONSTITUTIONAL HISTOKY OF EXGLAXD [Chap. III. quired, deprecated so unworthy a connec- tion.* Few will pretend to explore the labyrinths of Elizabeth's heart; ye we may almost conclude that her passion for this fa- vorite kept up a struggle against her wis- dom for tlie first seven or eight yeais of her reign. Meantime she still continued un- married ; and those expressions she had so early used, of her resolution to live and die a virgin, began to appear less like coy aflfec- tation than at first. Never had a sovereign's man'iage been more desirable for a king- dom. Cecil, aware how important it was that the queen should many, but dreading her union with Leicester, contrived, about the end of 1564, to renew the ti-eaty with the Archduke Charles. f During this ne- gotiation, which lasted from two to three years, she showed not a little of that eva- sive and dissembling coquetry which was to be more fully displayed on subsequent oc- casions.t Leicester deemed himself so * See particularly two letters in the Hardwicke State Papers, i., 122 aud 163, dated in October and November, 1560, which show the alarm excited by the queen's ill-placed partiality. t Cecil's earnestness for the Austrian marriage appears plainly in Haynes, 430 ; and still more in a reniai-kable minute, where he has dravra up, in parallel columns, according to a rather fonnal but perspicuous method he much used, his reasons in favor of the archduke, and against the Earl of Leicester. The fonner chiefly relate to foreign pol- itics, and may be conjectured by those acquainted with histoiy. The latter are as follows : 1. Nothing is increased by marriage of him, either in riches, estimation, or power. 2. It will be thought that the slanderous speeches of the queen with the earl have been true. 3. He shall study nothing but to enhance his own particular friends to wealth, to offices, to lands, and to offend others. 4. He is in- famed by death of his wife. 5. He is far in debt. 6. He is likely to be unkind, and jealous of the queen's majesty. — Id., 444. These suggestions, and especially the second, if actually laid before the queen, show the jilainness and freedom which this irreat statesman ventured to use toward her. The allusion to the death of Leicester's wife, which had occuiTed in a very suspicious manner, at Cum- nor, near Oxford, and is well known as the foun- dation of the novel of Kenilworth, though related there with gi-eat anaclu-onism aud confusion of per- sons, may be frequently met with in contemporary documents. By the above quoted letters in the Hardwicke Papers, it appears that those who dis- liked Leicester had spoken freely of this report to the queen. i Elizabeth carried her dissimulation so far as to pi-opose marriage articles, which were fonnally laid before the imperial ambassador. These, though copied from what had been agreed ou Mary's mar- much interested as to quarrel with those who manifested any zeal for the Austrian man-iage ; but his mistress gi-aduallj^ over- came her misplaced inclinations ; and from the time when that connection was broken off, liis prospects of becoming her husband seemed rapidly to have vanished awiiy. The pretext made for relinquishing this treaty with the archduke was Elizabeth's constant refusal to tolerate the exercise of his relig- ion ; a difficulty which, whether real or os- tensible, recuiTed in all her subsequent ne- gotiations of a similar natm-e.* In eveiy Parliament of Elizabeth, the House of Commons was zealously attached to the Protestant intei-est. This, as well as an apprehension of disturbance from a con- tested succession, led to those importunate solicitations that she would choose a hus- band, which she so artfully evaded. A de- termination so contrary to her apparent in- terest, and to the earnest desire of her peo- ple, may give some countenance to the sur- mises of the time, that she was restrained from marriage by a secret consciousness riage with Philip, now seemed highly ridiculous, when exacted from a younger brother without ter- ritories or revenues. Jura et leges regni conser- ventur, neque quicquam mutetur in religione aut in statu publico. Offlcia et magistratus exercean- tur per naturales. Neque regiua, neque liberi sui educanlur 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 abont the queen's marriage ; and those veracious oracles gave response, tliat she should be man-ied in the thirty-first year of her age to a foreigner, and have one son, who would be a great prince, and a daughter, &c., &c. —StPipe, ii., IG, and Appendix, 4, where the nonsense may be read at full length. Perhaps, however, the wily minister was no dupe, but meant that his mistress should be. [See, as to Elizabeth's intentions to man-}- at this time, the extracts from dispatches of the French ambassa- dor, in Raumer, vol. ii., p. 85.] * 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 sever- al di\-ines were consulted on two questions : 1. Wliether it were lawful to man-j- a papist. 2. Whether the queen might permit mass to be said. To which answers were given, not agreeing with each other. — Strj pe. ii., 150, and Appendix, 31, 33. When the Earl of Worcester was sent over to Paris in 1571, as proxy for tlie queen, who Iiad been made sponsor for Charles IX. 's infant daughter, she would not permit him, though himself a Catholic, to be present at the mass on that occasion, ii., 171. E LIZ.— Catholics.] FROM HENRY VII. TO GEORGE 11. 81 that it was unlikely to be fruitful.* Wheth- er these conjectures were well founded, of which I know no evidence, or whether the risk of e.xperiencing that ingratitude which the husbands of sovereign princesses have often displayed, and of which one glaring example was immediately before her eyes, outweighed in her judgment that of remain- ing 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 primaiy object of these addresses, as the most probable means of securing an undis- puted 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 matrimo- ny, 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. f It * " The people," Camden say.% " cursed Huic, the queen's physician, as having dissuaded the queen from marrying on account of some impedi- ment and defect in her." Many will recollect the allusion to this in Mary's scandalous letter to Eliz- abeth, wherein, under pretense of repeating what the Countess of Shrewsbury had said, she utters every thing that female spite and ungovernable malice could dictate. But in the long and confiden- tial coiTespoudence of Cecil, Walsingham, and Sir Thomas Smith, about the queen's marriage with the Dukeof Anjou, in 1571, for which they were evident- ly most anxious, I do not perceive the slightest inti- mation that the prospect of her bearing children was at all less favorable than in any other case. The council seem, indeed, in the subsequent treaty with the other Duke of Anjou, in 1579, when she was forty-six, to have reckoned on something rath- er beyond the usual laws of nature in this respect ; for in a minute by Cecil of the reasons for and against this marriage, he sets down the probability of issue on the favorable side. " By mairying witli Monsieur, she is likely to have children, because of his youth ;" as if her age were no objection. t Camden, after telling us that the queen's dis- incliuation to maiTy raised great clamors, and that F is evident that any confirmation of the Suf- folk 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 hereditaiy line, Elizabeth would have lost her check on one whom she had reason to consider 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 imprison- motive than her own jealous and caulanne*^^ malignant humor, taken a step Grey, not only harsh and arbitrary, but very little consonant to policy, which had almost put it out of her power to defeat the Queen of Scots' succession. Lady Catharine Grey, who has been already mentioned as next in the Earls of Pembroke and Leicester had professed their opinion that she ought to be obliged to take a husband, or that a successor should be declared by act of Parliament even against her will, asserts some time after, as inconsistently as improperly, that "very few but malcontents and ti'aitors ap- peared vei-y solicitous in the bushiess of a success- or."— P. 401 (in Kennet's Complete Histoiy of England, vol. ii.). This, however, from Camden's known proneuess to flatter James, seems to indicate that the Suffolk party were more active than the Scots upon this occasion. Their strength lay in the House of Commons, which was wholly Protestant, and rather Puritan. At the end of Murden's State Papers is a short journal kept by Cecil, containing a succinct and authentic summaiy of events in Elizabeth's reign. I extract as a specimen such passages as bear on the present subject. Oct. 6, 15C6. Certain lewd bills thrown abroad against the queen's majesty for not assenting to have the matter of succession proved in Parliament; and bills also to charge Sir W. Cecil, the secreta- ry, with the occasion thereof 27. Certam lords, viz., the Earls of Pembroke and Leicester, were excluded the presence-cham- ber for furthering the proposition of the succession to be declared by Parliament without the queen's allowance. Nov. 12. Mes.srs. Bell and Monson moved ti'ouble in the Parliament about the succession. 14. The queen had before her thirty lords and thirty commoners, to receive her answer concern- ing their petition for the succession and for mar- riage. Daltou was blamed for speaking in the Commons' House. 24. Command given to the Parliament not to treat of the succession. Nota : in this Parliament time the queen's maj- esty did remit a part of the offer of a subsidy to the Commons, who ottered largely, to the end to have had the succession established. — P. 762. 82 CONSTITUTIONAL HISTORY OF ENGLAND [Chap. UL 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 en- tertain any hopes of the succession, threw them both into the Tower. By connivance of their keepers, the lady bore a second child during this imprisonment. Upon this, Elizabeth caused an inquiiy to be instituted before a commission of privy counselors and | civilians, wherein, the parties being unable ' to adduce proof of their marriage. Archbish- op Parker pronounced that their cohabitation was illegal, and that they should be cen- sured for fornication. He was to be pitied if the law oMiged him to utter so harsh a sentence, or to be blamed if it did not. Even had the man-iage never been solem- nized, it was impossible to doubt the exist- ' ence of a contract, which both were stUl de- sirous to perform. But there is reason to beUeve that there had been an actual mar- riage, though so hasty and clandestine that they had not taken precautions to secure evidence of it. The injured lady sunk un- der this hardship and indignity ;* but the legitimacy of her cliildren was acknowl- ! edged by general consent, and, in a distant age, by a legislative declaration. These proceedings excited much dissatisfaction ; generous minds revolted from their seven- j ty, and many lamented to see the reform- \ ed branch of the royal stock thus bruised by the queen's unkind and impolitic jealou- * Catharine, after her release from the Tower, ■was placed in the custody of her uncle, Lord John Grey, but still sufferin? the queen's displeasure, ' and separated from her husband. .Several interest- ing letters from her and her uncle to Cecil are ^ among the Lansdowne MSS., vol. vi. They can not ^ be read without indisiiatiou at Elizabeth's unfeel- ing severity. Sorrow kiUed this poor young wom- an the nest year, who was never permitted to see , ■faer husband again. — Strype. i., 391. The Earl of [ Hertford underwent a long imprisonment, and con- tinued in obscurity during Elizabeth's reign, but had some public emploj-ments under her successor. He was twice afterward married, and lived to a very advanced age. not dying till 16-21, near sixty j years after his ill-stan-ed and ambitious love. It is worth while to read the epitaph on his monument ' in the southeast aisle of Salisbury Cathedral, an affecting testimony to the purity and faithfulness ^ of an attachment, rendered still more sacred by misfortune and time. Quo desiderio veteres revo- ; cavit amores ! I shall revert to the question of , this marriage in a subsequent chapter. J sy.* Hales, clerk of the hanaper, a zeal- ous Protestant, having written in favor of Lady Catharine's marriage, and of her ti- tle to the succession, was sent to the Tow- er.f The Lord-keeper Bacon himself, a known friend to the house of Suffolk, being suspected of having prompted Hales to ^vrite this treatise, lost much of his mis- tress's favor. Even Cecil, though he had taken a share in prosecuting Lady Cath- arine, perhaps in some degree from an ap- prehension that the queen might remember he had once joined in proclaiming her sis- ter Jane, did not always escape the same suspicion ;t and it is probable that he felt the imprudence of entirely discountenan- cing a party from which the queen and re- ligion had nothing to dread. There is rea- son to believe that the house of Suffolk was favored in Parliament ; the address of the Commons in 1-363, imploring the queen to settle the succession, contains several in- dications of a spirit unfriendly to the Scot- tish line ;§ and a speech is extant, said to have been made as late as 1751, expressly * Haynes, 396. t Id., 413. Strype, 410. Hales's treatise in fa- vor of the authenticity of Henry's will is among the Harleian MS."?., n. 537 and 55.5, and has also been printed in the Appendix to Hereditary Right As- serted, fol. 1713. i Camden, p. 416, ascribes the powerful coali- tion formed against him in 1569, wherein Norfolk and Leicester were combined with all the Catholic peers, to his predilection for the house of Suffolk. But it was more probably owing to their knowledge of his integrity and attachment to his sovereign, which would steadfastly oppose their wicked de- sign of bringing about Norfolk's marriage with Mary, as well as to their jealousy of his inflaence. Carte reports, on the authority of the dispatches of Fenelon, the French ambassador, that they intend- ed to bring him to account for breaking off the an- cient league with the house of Burgundy, or, in other words, for maintaining the Protestant inter- est.— 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 Leices- ter belonged to it ; and the object was to defeat the Suffolk succession, whicli Cecil and Bacon favored. Leicester betrayed his associates to the queen. It had been intended that Norfolk should accuse the two counselors before the Lords, ea ratione ut e senatu regiaque abreptos ad curiae jauuas in cru- cem agi paeciperet, eoque perfecto recte deinceps ad forum progressus esplicaret populo tum hnjus facti rationem, tum successionis etiam regnandi leiritimam seriem, si quid forte reginsB humanitus accideret.— P. 43. § D Ewes, 81. Eliz.— Catbolics.] FROM HENRY VII. vindicating the rival pretension.* If, in- deed, we consider with attention the stat- ute 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 Maiy Bran- don derived from a Parliamentary settle- ment. But the doubtful birth of Lord Beauchamp and his brother, as well as an ignoble marriage, which Francis, the young- er sister of Lady Catharine 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 in- Nfary, queen tricate paths of Scottish history, of Scotland, where each fact must be sustain- ed by a controversial discussion. Every one wUl recollect that Maiy Stuart's retention of the arms and style of England gave the first, and, as it proved, inexpiable provoca- tion to Elizabeth. It is indeed ti'ue that she was queen consort of France, a state lately at war with England, and that if the sovereigns of the latter countiy, even in peace, would persist in claiming the French throne, they could hardly complain of this retaliation. But, although it might be diffi- cult to find a diplomatic answer to this, yet every one was sensible of an important dif- ference between a title retained through vanity, and expressive of pretensions long since abandoned, from one that several for- eign powers were prepared to recognise, and a great part of the nation might, per- haps, only want opportunity to support. f * Strj-pe, 11, Append. This speech seems to have been made while Catharine Grey was living ; perhaps, therefore, it was in a former Parliament, for no account that I have seen represents her as haviu? been alive so late as 1371. t There was something peculiar in Mary's mode of blazonry. She bore Scotland and England quar- , terly. the former being first; but over all was a half scutcheon of pretense with the arms of Eng- land, the sinister half being as it were obscured, in order to intimate that she was kept out of her right. — Strype, vol. i., p. 8. The dispatches of Throckmorton, the English ambassador in France, bear continual testimony to the insulting and hostile manner in which Francis TO GEORGE II. ' §3 If, however, after the death of Francis II. had set the Queen of Scots free from aD ad- verse connections, she had with more read- iness and apparent sincerity renounced a pretension which could not be made compat- ible with Elizabeth's friendship, she might perhaps have escaped some of the conse- quences of that powerful neighbor's jeal- ousy. But whether it were that female weakness restrained her from unequivocally abandoning claims which she deemed well founded, and which future events might en- able her to realize even in Elizabeth's life- time, or whether she fancied that to drop the arms of England from her scutcheon would look like a dereliction of her right of succession, no satisfaction was fairly giv- en on this point to the English court. Eliz- abeth took a far more effective revenge, by inti'iguing with all the malcontents of Scot- land. But while she was endeavoring to render Mary's throne uncomfortable and insecure, she did not employ that influence against her in England which lay more fair- ly in her poM'er. She certainly Avas not unfavorable to the Queen of Scots' succes- sion, however she might decline compliance with importunate and injudicious solicita- tions 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, II. and his queen displayed their pretensions to our crown. — Forbes's State Papers, vol. i., passim. The following is an instance. At the enti-ance of the king and queen into Chatellierault, 23d Nov., 1.539, these lines formed the inscription over one of the gates : Gallia perpetuis pugna:tque Britannia bellis Glim odio inter ee dimicuere pari. Nunc Gallos totoque remolos orbe Britaoaos Unum dos MariK cogit impprium. Zr^o pace potes, Francisce, quod omniljas armia MiUe patres annis non potuere tui. This offensive behavior of the French court is the apology of Elizabeth's intiigues during the same period with the malcontents, which to a certain extent can not be denied by any one who has read the collection above quoted ; though I do not think Dr. Lingard warranted in asserting her privity to the conspiracy of Amboise as a proved fact. Throckmorton was a man veiy likely to exceed Iiis instructions ; and there is much reason to believe that he did so. It is remarkable that no modem French writers that I have seen, Anquetil, Gamier, Lacretelle, or the editors of the General Collection of Memoirs, seem to have been aware of Eliza- beth's secret intrigues with the King of Navarre and other Protestant chiefs in 1559, which these letters, pablished by Forbes in 1740, demonstrate. 84 CONSTITUTIONAL HISTORY OF ENGLAND [Chap, IIL which alone stooJ in their way, should be examined, alleging that it had not been sign- ed by the king, she paid no attention to this imprudent request.* The circumstances wherein Mary found herself placed on her airival in Scotland were sufficiently embarrassing to divert her attention from any regular scheme against Elizabeth, though she may some- times have indulged visionary hopes ; nor is it probable that, with the most circum- spect management, she could so far have mitigated the rancor of some, or checked the ambition of others, as to find leisure for hostile intrigues. But her imprudent mar- riage with Darnley, and the far gi-eater er- rors of her subsequent behavior, by lower- ing both her resources and reputation as far as possible, seemed to be pledges of perfect security from that quarter. Yet it was pre- cisely when Mary was become most feeble and helpless that Elizabeth's apprehensions gi'ew 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 Avere discussed in her councils. To restore her by force of arms, or, rather, by a mediation which would certainly have been eftectual, to the throne which she had compulsorily abdica- ted, was the most generous, and would, per- haps, have turned out the most judicious proceeding. R-eigning thus with tarnished honor and diminished power, she must have continually depended on the support of Eng- land, and become little better than a vassal of its sovereign. Still it might be objected by many that the queen's honor was con- cerned not to maintain too decidedly the cause of one accused by common fame, and even' by evidence that had already been made public, of adultery and the assassina- * Biimet, i., Append., 266. Many letters, both of Mary herself and of her secretaiy, the famous Maitland of Lethington, occur in Haynes's State Papers about the end of 1561. In one of his to Cecil, he urges, in answer to what had been al- leged by the English court, that a collateral suc- cessor had never been declared in any prince's lifetime ; that, wliatever reason there might be for that, " if the succession had remained untouched according to the law, yet where by a limitation men had gone about to prevent the providence of God, and shift one into the place due to another, the of- fended party could not but seek the redress there- of.'—P. 373. tion 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 aflforded her any material assistance. Yet this appeared rather dangerous ; and policy was supposed, as frequently hap- pens, to indicate a measure abs^jlutely re- pugnant to justice, that of detaining her in perpetual custody.* Whether 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 inevita- bly turned every one's thoughts toward the contingency of her de.ith. She was young, indeed, but had been dangerously ill, once in 1.562, f and again in 1568. Of all jxis- sible competitors for the throne, . 1,1 Combination Maiy was mcomparably the most >n favor of powerful, both among the nobili- ^^^^y- ty and the people. Besides the undivided attachment of all who retained any long- ings for the ancient religion, and many such were to be found at Elizabeth's court and chapel, she had the strong-hold of he- reditaiy right, and the general sentiment that revolts from acknowledging the om- nipotency of a servile Parliament. Cecil, whom no one could suspect of partiality toward her, admits, in a remarkable min- ute on the state of the kingdom in 1569, that " the Queen of Scots' strength staud- eth by the universal opinion of the world for the justice of her title, as coming of the ancient line."t This was, no doubt, in some degree counteracted by a sense of the danger which her accession would oc- casion to the Protestant Chiu'ch, and which, far more than its Parliamentary title, kept up a sort of party for the house of Suflfolk. * A very remarkable letter of the Earl of Sus- sex, Oct. 22, 156i?, contains these words: "I think surely no end can be made good for England, ex- cept the person of the Scottish queen be detained, by one means or other, in England." The whole letter manifests the spirit of Elizabeth's advisers, and does no great credit to Sussex's sense of jus- tice, but a great deal to his abihty. Yet he after- ward became an advocate for the Duke of Norfolk's marriage with Marj-. — Lodge's Illustrations, vol. ii., p. 4. t Hume and Carte say, this first illness was the small-pox. But it appears by a letter from the queen to Lord Shrewsbury, Lodge, 279, that her attack in 1571 was suspected to be that disorder. t HajTies, 580. Kliz.— CathoHcs.] FROM HENRY VII. TO GEORGE II. 85 The crimes imputed to her did not imme- diately gain credit among the people ; and some of higher rank were too experienced politicians to tm-n aside for such considera- tions. She had always preserved her con- nections 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 sovereign.* 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 very unfavor- able impression both in E ngland 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 i-escue, be placed at their head ; eveiy 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 par- ty, yet at least with their attachment to the Queen of Scots. But the extensive com- bination that appeared, in 1569, to bring about by force the Duke of Norfolk's mar- riage with that princess, might well startle her cabinet. In this combination, West- moreland and Northumberland, avowed Catholics, Pembroke and Arundel, suspect- ed ones, wei'e 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 conspiracy, that his life became the just forfeit of his guilt and folly. * In a conversation which Mai-y had with one Rooksby, a spy of Cecil's, about the spring of 1566, she imprudently named several of her friends, and of others whom she hoped to win, sncli as the Duke of Norfolk, the Earls of Derby, Northumberland, Westmoreland, Cumberland, Slirewsbuiy. " She had tlie better hope of this, for that she thought them all to be of the old reUgion, whicli she meant to restore again with all expedition, and tliereby win the hearts of the common people." The whole passage is worth notice. — Haynes, 447. See, also, Melvill's Memoirs, for the disposition of an English party toward Mary iu 1556. It is almost impossible to pity this unhappy man, who, lured by the most criminal am- bition, after proclaiming the Queen of Scots a notorious adulteress and murderer, would have compassed a union with her at the haz- ard of his sovereign's crown, of the tranquil- lity and even independence of his country, and of the Reformed religion.* There is abundant proof of his intrigues with the Duke of Alva, who had engaged to invade the kingdom. His trial was not, indeed, conducted in a mannar that we can approve (such was the nature of state proceedings in that age); nor can it, I think, bedenied that it formed a precedent of consti'uctive treason not easily reconcilable with the stat- ute ; 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, f Norfolk was the dupe throughout all this inti-igue of more artful men ; first of Mur- ray and Lethington, who had filled his mind with ambitious hopes, and afterward of Ital- ian agents employed by Pius V. to procure a combination of the Catholic party. Col- lateral to Norfolk's conspiracy, but doubtless connected with it, was that of the noi-them Earls of Northumberland and Westmore- land, long prepared, and perfectly foreseen by the government, of which the ostensible and manifest aim was the re-establishment of popery. t Pius V., who took a far more active part than his prede- ^'"^ * Murden's State Papers, 134, 180. Norfolk was a very weak man, the dupe of some veiy cunning ones. We may observe that his submission to the queen. Id., 153, is expressed in a style which would now be thought most pusillanimous in a man of much lower station, yet he died with great intre- pidity. But such was the tone of those times ; an exaggerated hypocrisy prevailed in every thing. t State Trials, i., 957. He was inten-ogated by the queen's counsel with the most insidious ques- tions. All the material evidence was read to the Lords from written depositions of witnesses who might have been called, contrary to the statute of Edward VI. But the Burghley Papers, published by Hayues and Murden, contain a mass of docu- ments i-elative to this conspiracy, which leave no doubt as to the most heinous charge, that of invit- ing the Duke of Alva to invade the kingdom. There is reason to suspect that he feigned himself a Catholic in order to secure Alva's assistance. — Murden, p. 10. t The northei-n counties were at this time chiefly Catholic. " There are not," says Sadler, writing from thence, "ten gentlemen in this country who do favor and allow of her majesty's proceedings 86 CONSTITUTIONAL HISTORY OF ENGLA^^D [Chap. III. cesser in English aflfairs, and had secretly instigated this insurrection, now published his celebrated bull, excommunicating and deposing Elizabeth, in order to second the efforts of her rebellious subjects.* This is, perhaps, with the exception of that is- sued by Sixtus V. against Henry IV. of Fi-ance, the latest blast of that trumpet, which had thrilled the hearts of monarchs. Yet there was nothing in the sound that bespoke declining vigor ; even the illegiti- macy of Elizabeth's birth is scai'cely alluded to ; and the pope seems to have chosen rather to ti-ead the path of his predeces- soi's, and absolve her subjects from their allegiance, as the just and necessary pun- ishment of her heresy. Since nothing so much strengthens any government as an unsuccessful endeavor to subvert it, it may be thought that the com- plete failure of the rebellion under the Earls of Northumberland and Westmore- land, with the detection and punishment of the Duke of Norfolk, rendered Eliza- beth's throne more secure. But those events revealed the number of her ene- mies, or at least of those in whom no con- fidence could be reposed. The rebellion, though provided against by the ministry, and headed by two peers of gi-eat family but no personal weight, had not only as- sumed for a time a most foi'midable aspect in the north, but caused many to waver in other parts of the kingdom. f Even in Norfolk, an eminently Protestant county, there was a slight insurrection in 1570, out of attachment to the duke. J If her great- est subject could thus be led asti-ay from his faith and loyalty, if others not less near in the cause of religion." — Lingard, vii., 54. It was consequently the great resort of the priests from the Netherlands, and in the feeble state of the Protestant Church there wanted sufficientministers to stand up ia its defense. — Strj'pe, i., 509, et post ; ii., 183. Many of the gentry, indeed, were stiU dis- affected in other parts toward the new religion. A profession of conformity was required in 1569 from all justices of the peace, which some refused, and others made against their consciences. — Id., i., 567. * Camden has quoted a long passase from Hier- onymo Catena's Life of Pius V., published at Rome, in 1558, which illustrates the evidence to the same effect contained in the Burihley Papers, and part- ly adduced on the Duke of Norfolk's trial. t Strype, i., 546, 553, 556. t Strype, i., 578. Camden, 428. Lodge, ii., 45. to her councils 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 es- tablishment under a yet unknown success- or ? This was the manifest and principal danger that her counselors had to dread. Her own great reputation, and the respect- ful attachment of her people, might give reason to hope that no machinations 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 ill- ness, such as she had more than once ex- perienced in earlier years, and again in 1571. " You must think," Lord Burleigh \\Tites to Walsingham, on that occasion, " such a matter would drive me to the end of my wits." And Sir Thomas Smith ex- presses his fears in equally strong language.* Such statesmen do not entertain apprehen- sions Ughtly. Whom, in truth, could her privy council, on such an event, have re- solved to proclaim ? The house of Suf- folk, had its right been more generally rec- ognized than it was (Lady Catharine 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 diflficult 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 Avho 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 Eliza- beth'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 W'ould otherwise have appeared consistent with her interests. A union with any member of that perfidious comt was repugnant to I genuine Protestant sentiments. But the queen's absolute want of foreign alliances. * Strype, ii., 88. Life of Smith, 152. Eliz. — Catholics.] FROM HENRY VII. TO GEORGE II. 87 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 ti'eaty 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 ex- tirpation of the Protestant religion.* No alliance that the court of Charles IX. 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 practiced it so well. Walsingham himself, sagacious as he was, fell into the snares of that den of treach- eiy, giving credit to the young king's as- surances almost on the veiy eve of St. Bar- tholomew.f The bull of Pius V., far more injurious in its consequences to those it was designed to serve than to Elizabeth, forms a leading epoch in the history of our English Cath- olics. It rested upon a principle never universally acknowledged, and regarded with much jealousy by temporal govern- ments, yet maintained in all countries by many whose zeal and ability rendered them formidable — the right vested in the su- preme pontift' to depose kings for heinous crimes against the Church. One Felton affixed this bull to the gates of the Bisho]) of London's palace, and suffered death for the offense. So audacious a manifestation of disloyalty was imputed, with little jus- tice, to the Catholics at large, but miglit more reasonably lie at the door of those active insti-uments of Rome, the English refugee priests and Jesuits dispersed over Flanders and lately established at Douay, who were continually passing into the king- dom, not only to keep alive the precarious faith of the laity, but, as was generally sur- * Strj-pe, i., 502. I do not give any credit what- ever to this league, as printed in Strj'pe, which fleems to have been fabricated by some of the queen' s emissaries. There had been, not, perhaps, a treaty, but a verbal agjeement between France and Spain at Bayonne some time before, but its object was apparently confined to the suppression of Protestantism in France and the Netherlands. Had they succeeded, however, in this, the next blow would have been struck at England. It ■eems very unlikely that Maximilian was concerned in such a league. t Strj-pe, vol. ii. mised, to excite them against their sover- eign.* This produced tlio act of , „ „ ,. ' , . , p Statutes for 13 Eliz., c. 2; which, alter re- tiie queen's citing these mischiefs, enacts that *'^<='"''^3'- all persons publishing any bull from Rome, or absolving and reconciling any one to the Romish Church, or being so reconciled, should incur the penalties of high treason ; and such as brovight into the realm any crosses, pictures, or superstitious things consecrated by the pope or under his au- thority, should be liable to a praemunire. Those who should conceal or connive at the offenders were to be held guilty of misprision of treason. This statute ex- posed the Catholic priesthood, and in great measure the laity, to the continual risk of martyrdom ; 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 rein- stated in the church's communion. An- other act of the same session, manifestly leveled 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 print- ed, expressly affirm, before the same had been established by Parliament, that any one particular 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 offense to be im- prisoned a year and to forfeit half his goods, * The college of Douay for English refugee priests was established in or 1569. — Lingard, 374, Strj-pe seems, but I believe through inadver- tence, to put this event several years later. — An- nals, ii., 630. It was dissolved by Requesens, while governor of Flanders, but revived at Rheims in 1575, under the protection of the Cardinal of Lor- rain, and returned to Douay in 1593. Similar col- leges were founded at Rome in 1579, at Valladolid in 1589, at St. Omer in 1596, and at Louvain in 1606. 88 CONSTITUTIOXAL HISTORY OF ENGLAND [Chap. in. 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 Protes- tants, or, as they were now rather denom- inated, Puritans, had a predominant influ- ence, were not content with these demon- sti'ations against the unfortunate captive. Fear, as often happens, excited a san- guinary spirit among them ; they address- ed the queen upon what they called the great cause, that is, the business of the Queen of Scots, presenting by their com- mittee reasons gathered out of the civil law to prove that " it standeth not only with justice, but also with the queen's majesty's honor and safety, to proceed criminally against the pretended Scottish queen. "f Elizabeth, who really could not dislike these symptoms of hati-ed toward her rival, took the opportunity of simu- lating more humanity than the Commons; and when they sent a bill to the Upper House attainting Mary of treason, checked its com'se by proroguing the Parliament. Her backwardness to concur in any meas- ures for securing the kingdom, as far as in her lay, from those calamities which her decease might occasion, could not but dis- please Lord Burleigh. " All that we la- bored for," he writes to Walsingham in 1572, "and had with full consent brought to fashion — I mean a law to make the Scot- tish queen unable and unworthy of succes- sion to the crown — was by her majestj' neither assented to nor rejected, but de- ferred." Some of those about her, he hints, made herself her own enemy, by persuading her not to countenance these proceedings in Parliament. t 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 * 13 Eliz., c. 1. This act was made at fii'st ret- rospective, so as to affect every one who had at any time denied the queen's title. A member ob- jected to this in debate " as a precedent most per- ilous." But Sir Francis Knollys, Mr. Norton, and others, defended it. — -B'Ewes, 162. It seems to have been amended by the Lords. So little notion had men of obsei-ving the first principles of equity toward their enemies ! There is much reason from the debate to suspect that the ex post facto words were leveled at Mary. t Stn-pe, ii.. 133. D'Ewes, 207. t Strype, ii., 133. secure by Mary's exclusion from the throne, which, indeed, after all that had occurred, she could not be endured to fill without na- tional dishonor. But the violent measures suggested against her life were hardly, un- der all the circumstances 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 mere- ly 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 te, the queen's majesty's good subjects would be in better hope, and the papists' daily expectatioQ vanquished."* And Walsingham, during his embassy at Paris, desires that " the queen should see how much they (the pa- pists) built upon the possibility of that dan- gerous woman's coming to the crown of England, whose life was a step to her maj- esty's death:" adding, that "she Avas bound for her own safetj' and that of her subjects to add to God's providence her own policy, so far as might stand with justice."! We can not wonder to read that these new statutes increased the dis- Catholics satisfaction of the Roman Cath- """^ ''"T olics, who perceived a systematic ed- determination to extirpate their religion. Governments ought always to remember that the intimidation of a few disaffected persons is dearly bought by alienating any large portion of the community. t Many retu-ed to foreign countries, and receiving for their maintenance pensions from the court of Spain, became unhappy iu-stru- ments of its ambitious enterprises. Tnose who remained at home could hardly think their oppression much mitigated by the precarious indulgences which Elizabeth's caprice, or, rather, the fluctuation of dif- ferent paities in her councils, sometimes extended to them. The queen, indeed, so far as we can penetrate her dissimulation, seems to have been really averse to ex- treme rigor against her Catholic subjects; and her greatest minister, as we shall more * Life of Parker, 354. t Strj-pe's Aimals, ii., 48. t Murden's Papers, p. 43, contain proofs of the increased discontent among the Catholics in conse- quence of the penal laws. Eliz.— Catholics.] FROM HENRY VII. TO GEORGK 11. 89 fully see aftei-\vard, was at this time in the same sentiments. But such of her ad- visers as leaned toward the Puritan fac- tion, and too many of the Anglican clergy, whether Puritan or not, thought no meas- ure of charity or compassion should be ex- tended to them. With the divines they were idolaters ; with the council they were a dangerous and disaffected pai'ty ; with the judges they were refractory transgressors of statutes ; on eveiy side they were ob- noxious and oppressed. A few aged men having been set at liberty, Sampson, the famous Puritan, himself a sufferer for con- science' sake, wrote a letter of remon- sti-ance 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 been introduced in the session of 1.571, imposing a penalty for not receiving the communion, it was objected that consciences ought not to be forced. But Mr. Strickland entirely denied this principle, and quoted authori- ties against it.f Even Parker, by no means tainted with Puritan bigotry, and who had been reckoned moderate in his proceedings toward Catholics, complained of what he called " a Machiavel government ;" that is, * Stiype, ii., 330. See, too, in vol. iii., Appendix, 68, a series of petitions intended to be offered to tlie queen and Parliament about 1.583. These came from the Puritanical mint, and show the dread that party entertained of Mary's succession, and of a relapse into popery. It is urged in these, that no toleration should be granted to the popish worship in private houses. Kor, in fact, had they much cause to complain that it was so. Knox's famous intolerance is well known. " One mass," he declared in preaching against Mary's private chapel at Holyrood House, " was more fearful unto him than if ten thousand amied enemies were landed in any part of the realm, on purpose to sup- press the whole religion."^ — M Crie s Life of Knox, vul. ii., p. 24. In a conversation with Maitland, he asserted most explicitly the duty of putting idola- ters to death. — Id., p. 120. Nothuig can be more sanguinary than the Reformei-'s spirit in this re- markable interview. St. Dominic could not have surpassed him. It is strange to see men, profess- ing all the while our modem creed of charity and toleration, extol these sanguinaiy spirits of the six- teenth century. The English Puritans, though I can not cite any passages so strong as the forego- ing, were much the bitterest enemies of the Cath- olics. When we read a letter from any one, such as Mr. Topcliffe, very fierce against the latter, we may expect to find him put in a word in favor of silenced ministers. t D'Ewes, 161, 177. of the queen's lenity in not absolutely root- ing 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 Romish worship in its most private exer- cise. She published a declaration in 1570, that she did not intend to sift men's con- sciences, provided they observed her laws by coming to chvu-ch; which, as she well knew, the strict Catholics deemed incon- sistent with their integrity. f Nor did the government always abstain from an inquisi- tion into men's private thoughts. The Inns of Court were more than once puri- fied of popery by examining their mem- bers on articles of faith. Gentlemen of good families in the country were harass- ed in the same manner.f One Sir Rich- ard Shelley, who had long acted as a sort of spy for Cecil on the Continent, and given much useful information, requested only leave to enjoy his religion without hinderance ; but the queen did not accede to this without much reluctance and de- lay.§ She had, indeed, assigned no other ostensible pretext for breaking oft" her own treaty of marriage with the Archduke Charles, and subsequently with the Dukes of Anjou and Alencon, than her determi- nation not to sufler the mass to be cele- brated even in her husband's private chap- el. It is worthy to be repeatedly incul- cated on the reader, since so false a color has been often employed to disguise the ecclesiastical tyranny of this reign, that the most clandestine exercise of the Romish worship was severely punished. Thus we read in the life of Whitgift, that on infor- mation given that some ladies and others heard mass in the house of one Edwards by night, in the county of Denbigh, he being then bishop of Worcester and vice- president of Wales, was directed to make inquiry into the facts ; and finally was in- structed to commit Edwards to close pris- on ; and as for another person implicated, * Strj-pe's Life of Parker, 354. t Stiype's Annals, i., 582. Honest old Strype, who thinks church and state never in the wrong, calls this " a notable piece of favor." t Strype's Annals, ii., 110, 408. 5 Id., iii., 127. 90 CONSTITUTIOXAL HISTOKY OF ENGLAND [Chap. m. named Morlce, " if he rem.iined obstinate, he might cause some kind of torture 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, forgotten on tlie morrow, and of wliich no general historian takes account. Nothing but the minute and patient dili- gence of such a compiler as Stiype, who thinks no fact below his regard, could have preserved this from oblivion, f * Life of Whitgift, 93. See, too, p. 99, and An- nals of Reformation, ii., 631, &c. ; also Holingshed, ann. 1574, ad init. t An almost incredible specimen of ungracious behavior toward a Roman Catholic gentleman is mentioned in a letter of Topclitfe, a man whose daily occupation was to hunt out and molest men for poperj'. " The next good news, but in account the highest, her majesty hath served God with great zeal and comfortable examples ; for by her council two notorious papists, young Rockwood, the mas- ter of Euston Hall, where her majesty did lie upon Sunday now a fortnight, and one Downes, a gen- tleman, were both committed, the one to the town prison at Norwich, the other to the county prison there, for obstinate papistrj- ; and seven more gen- tlemen of worship were committed to several hous- es iu Noi-wich as prisoners ; two of the Lovels, an- other Downes, one Beuiugfield, one Parrj-, and two others not worth memorj' for badness of belief. " This Rockwood is a papist of kind [family] newly crept out of his.late wardship. Her majes- ty, by some means I know not, was lodged at his bouse, Euston, far unmee'. for her highness ; nev- ertheless, the gentleman brought into her presence by like device, her majesty gave him ordiuarj- thaulis for his bad house, and her fair hand to kiss ; but my lord chamberlain, nobly and gi'avely under- standing that Rockwood was excommunicated for papistry, called him before him, demanded of him bow he durst presume to attempt her royal pres- ence, he, unfit to accompany any Christian person ; forthwith said he was fitter for a pair of stocks, commanded him out of the court, and j-et to attend her council's pleasure at Norwich he was commit- ted. 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 Oar 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 majestj''s sieht the idol was Bet behind the people who avoided ; she rather geemed a beast raised upon a sudden from bell 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 her sight by the countrj- 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 mUk. " Shortly after, a great sort of good preachers, who had been long commanded to sUence for a It will not surprise those who have ob- served the effect of all persecution for mat- ters of opinion upon the human mind, that during this period the Romish paity con- tinued such in numbers and in zeal as to give the most lively alarm to Elizabeth's administration. One cause of this was be- yond doubt the connivance of justices of the peace, a great many of whom were se- cretly 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 obsei-ved, was a still more important circumstance. Nor did the vol- ., 1 ,- 1 1 ■ T-i. Refueees in untary exiles established in i Ian- the Nether- ders remit their diligence in fill- l!"".' r.^!?*" o hostility to ing the kingdom with emissaries, the govem- The object of many at least little niceness, were licensed, and again com- manded to preach; a greater and more universal joy to the countries, and the most of the court, than the disgrace of the papists ; and the gentlemen of those parts, being great and hot Protestants, al- most before by pohcy discredited and disgraced, were greatly countenanced. " I was so happy lately, among other good graces, that her majesty did teU me of sundry lewd papist beasts that have resorted to Buxton," &c. — Lodge, ii., 188, 30 Aug., 1578. This TopclifFe was the most implacable perse- cutor of his age. In a letter to Lord Burleigh, Strj"pe, iv., 39, he urges him to imprison all the principal recusants, and especially women, " the farther off from their own family and friends the better." The whole letter is curious, as a speci- men of the prevalent spirit, especial]}- among the Puritans, whom TopcUlfe favored. Instances of the ill treatment experienced by respectable fam- ilies (the Fitzberberts and Foljambes), and even aged ladies, without any other provocation than their recusance-, may be found in Lodge, ii., 372, 462 ; iii., 22. [See, also, Dodd's Church Historj', vol. iii., passim, with the additional facts contrib- uted by the last editor.] But those farthest re- moved from Puritanism partook sometimes of the same tyraimous spirit. Aylmer, bishop of Lon- don, renowned for his persecution of non conform- ists, is said by Rishton de Schismate, p. 319, to have sent a young Cathohc lady to be whipped in Bridewell for refusing to conform. If the author- itj- is suspicious (and yet I do not perceive that Rishton is a liar like Sanders), the fact is rendered hardly improbable by Aylmer's harsh character. * Strj-pe's Life of Smith, 171. Annals, ii., 631, 636 ; iii., 479 ; and Append., 170. The last refer- ence is to a list of magistrates sent up by the bishops from each diocese, with their characters. Several of these, but the wives of many more, were inclined to popery. Eliz. — Catliolics.] FROM HEJIRY VII. TO GEORGE II. 91 among them, it can not for a moment be doubted, from the era of the bull of Pius v., if not earlier, was nothing less than to subvert 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 neighbor, and at length of an implacable adversary. Though no war had been declared between Elizabeth and Philip, neither party had scrupled to enter into leagues with tlie disaffected subjects of the otlier. Such sworn vassals of Rome and Spain as an Allen or a Persons were just objects of the English government's dis- trust : 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 Fresh laws the Vatican and Escurial, the ref- ^athuhc''° ugees redoubled their exertions worship, about the year 1580. Mary was * Allen's Admonition to the Nobility and People of England, written in 1588, to promote the suc- cess of the Armada, is full of gross lies against the queen. See an analysis of it in Lingard, note B. B. Mr. Butler fully acknowledges, what, in- deed, the whole tenor of historical documents for this reign confimis, that Allen and Persons were actively engaged in endeavoring to dethrone Eliz- abeth by means of a Spanish force. But it must, I think, be candidly confessed by Protestants, that tliey had very little influence over the superior Catholic laity. And an argument may be drawn from hence against those who conceive the polit- ical conduct of Catholics to be entirely swayed by their priests, when even in the sixteenth centmy the eftbrts of these able men, united with the head of their church, could produce so little effect. Strype owns that Allen's book gave ofifense to many Catholics, iii., 560. Life of Whitgift, 505. One Wright, of Douay, answered a case of con- science, whether Catholics might take up arms to assist the King of Spain against the queen, in the negative. — Id., 251. Ajmals, 565. This man, tliough a known Loyalist, and actually in the em- ploj-ment of the ministry, was aftei ward kept in a disagreeable sort of confinement in the Dean of Westminster's liouse, of which he complains with much reason. — Birch's Memoirs, vol. ii., p. 71, et ahbi. Though it does not fall within the province of a writer on the Constitution to enlarge on Eliz- abeth's foreign policy, I must obsen'e, in conse- quence of the labored attempts of Dr. Liugard to represent it as perfectly Machiavelian, and with- out any motive but wanton malignity, that, with respect to France and Spain, and even Scotland, it was strictly defensive, and justified by the law of self preservation ; though, in some of the means employed, she did not always adhere more scru- pulously to good faith than her enemies. now wearing out her 3'ears in hopeless cap- tivity ; her son, though they did not lose hope of him, had received a strictly Prot- estant 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 Com- mons 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 ex- tirpate popery. Here an act was passed, which, after repeating the former provis- ions that had made it high treason to rec- oncile any of her majesty's subjects, or to be reconciled to the Church of Rome, im- poses a penalty of c£20 a month on all per- sons absenting themselves from church, un- less they shall hear the English service at home : such as could not pay the same within three months after judgment, were to be imprisoned 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.* These grievous penalties on recu- sancy, as the willful absence of Catholics from church came now to be denominated, were doubtless founded on the extreme dififi- culty of proving an actual celebration of their own rites. But they established a persecu- tion which fell not at all short in principle of that for which the Inquisition had become so odious. Nor were tlie statutes merely de- signed for terror's sake, to keep a check over the disaffected, as some would pretend : they were executed in the most sweeping and indiscriminating mahner, unless perhaps a few families of high rank might enjoy a connivance. f It had certainly been the desu-e of Eliz- abeth to abstain from capital pun- ishments on the score of religion, of Campian The first instance of a priest suf- """^ fering death by her statutes was in 1577, when one Mayne was hanged at Launces- ton, without any charge against him except his religion, and a gentleman who had har- bored him was sentenced to imprisonment for Ufe.J In the next year, if we may * 23 Eliz., c. 1, and 29 Eliz., c. 6. t Strj-pe's Whitgift, p. 117, and other authorities, passim. t Camden. Lingard. Two others suffered at 92 COXSTITUTIONAL HISTORY OF EXGLAXD [Chap. III. ti-ust the zealous CtTtholic writers, Thomas Sherwood, a boy of fourteen years, was ex- ecuted 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 whoUj- without foundation) to be very in- consistent with their allegiance, it was un- happily deemed necessary to hold out some more conspicuous examples of rigor. Of those brought to trial, the most eminent was Campian, formerly a Protestant, but long known as the boast of Douay for his learning and virtups.f This man, so justly respected, was put to the rack, and revealed through torture the names of some Catho- lic gentlemen with whom he had convers- ed.J He appears to have been indicted along with several other priests, not on the recent statutes, but on that of 25 Edw. III., for compassing and imagining the queen's death. Nothing that I have read affords the slightest proof of Campian's concern in ti^easonable practices, though his connec- tions, and profession as a Jesuit, render it by no means unlikely. If we may confide in the published ti'ial, 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 language 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 exe- cution, where, as well as at his trial, he is represented to have expressly acknowledg- Tybum not long aftenvard for the same offense. — Holingrshed, 344. See in Butler's Mem. of Catho- lics, vol. iii., p. 382, an affecting naiTative, from Dodd's Church History, of the sufferirigs of Mr. Tregian and his family, the gentleman whose chaplain Maj"ne had been. I see no cause to doubt its truth. * Ribadeneira, Continuatio Sanderi et Rishtoui de Schismate Auglicano, p. 111. Philopater, p. 247. This circumstance of Sherwood's age is not mentioned by Stowe, nor does Dr. Liugard advert to it. No woman was put to death under the pe- nal code, so far as I remember, which of itself dis- tinguishes the persecution from that of Marj-, and of the house of Austria in Spain and the Nether- lands, t Strj-pe's Parker, 375. i Strype's Annals, ii., 614. § State Trials, i., 1050 ; from the Phoenix Bri- tannicus. ed Elizabeth, and to have prayed for her as his queen de facto and dejure. For this was one of the questions propounded to him before his trial, which he refused to an- swer, in such a manner as betrayed his way of thinking. Most of those interrogated at the same time, on being pressed wheth- er the queen was their lawful sovereign whom they were bound to obey, notwith- standing any sentence of deprivation thiit the pope might pronounce, endeavored, like Campian, to evade the snare. A few, who unequivocally disclaimed the deposing power of the Roman See, were pardoned.* It is more honorable to Campian's memory that we should reject these pretended dec- larations, than imagine him to have made them at the expense of his consistency and integrity. For the pope's right to deprive kings of their crowns was in that age the common creed of the Jesuits, to whose or- der Campian belonged ; and the Continent was full of writings published by the Eng- lish exiles, by Sanders, Bristow, Persons, and Allen, against Elizabeth's unlawful usurpation of the throne. But many avail- ed themselves of what was called an expla- nation of the bull of Pius V., given by his successor Gregoiy 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.f * State Trials, i., 1078. Butler's English Cath- olics, i., 184, 244. Lingard, vii., 182; whose re- marks are just and candid. A tract, of which I have only seen an Italian translation, printed at Macerata in 1585, entitled Historia del glorioso martirio di diciotto sacerdoti e un secolare, fatti morire in InghUterra per la confessione e difen- sione della fede cattolica, by no means asserts that he acknowledged Eli2abetli to be queen de jure, but rather that he refused to give an opinion as to her right. He prayed, however, for her as a queen. " lo ho pregato, e prego per lei. All' ora il Signor Howardo li domando per qual regina egli pregasse, se per Elisabetta ? Al quale ris- pose. Si, per Elisabetta.'' Mr. Butler quotes this ti'act in English. The tiials and deaths of Campian and his asso- ciates are told in the continuation of Holingshed, with a savageness and bigotry which, I am very sure, no scribe for the Inquisition could have sur- passed, p. 456. But it is plain, even from this ac- count, that Campian owned Elizabeth as queen. See particularly p. 448, for the insulring manner in which this writer describes the pious fortitude of these butchered ecclesiastics. t Strj-pe, ii., 637. Butler's Eng. Catholics, i.. Eliz. — Catholics.] FROM HENRY VII. TO GEORGE II. 93 This was designed to satisfy the conscien- ces of some papists in submitting to her government, and talcing the oath of allegi- tince. But in thus granting a permission to dissemble, in hope of better opportunity for revolt, this interpretation was not likely to tranquilize her council, or conciliate them toward the Romish party. The distinc- tion, however, between a king by possession and one by right, was neither heard for the fii-st nor the last time in the reign of Eliza- beth. It is the lot of eveiy government that is not founded on the popular opinion of legitimacy, to receive only a precarious allegiance. Subject to this reservation, which was pretty generally known, it does not appear that the priests or other Roman Catholics, examined at various times dur- ing this reign, are more chargeable with 196. The Earl of Southampton asked Mary's am- bassador, Bishop Lesley, whether, after the bull, be coiUd in conscience obey Elizabeth. Lesley answered that, as long as she was the stronger, he ought to obey her. — Murden, p. 30. The writer quoted before by the name of Andreas Philopater (Persons, translated by Cresswell, according to Mr. Butler, voL iii., p. 236), after justifying at length the resistance of the League to Henry IV., adds the following remarkable paragi'aph : " Hinc etiam infert uuiversa theologonim et jurisconsul- ^rum schola, et est ceituiu et de fide, quemcun- que principem Christianum, si a religione Catholi- ca manifeste deflexerit, et alios avocare voluerit, exciderc statim omni potestate et dignitate, ex ipsa vi juris tum divim tum humani, hocque ante omncm sententiam supremi pastoris ac judicis contra ipsum prolatum ; et subditos quoscunque liberos esse ab omni jurainenti obligatione, quod ei de obedientia tanquam principi legitimo prsesti- tissent, posseque et debere (si vires habeant) isti- nsmodi homiuem, tanquam apostatam, ha;reticum, ac Christi domiui desertorem, et iniraicum reipub- licoe suie, hostemque ex honiinum Christianoi-um dominatu ejicere, ne alios inficiat, vel suo exem- plo aut imperio a fide avertat," p. 149. He quotes four authorities for this in the margin, from the works of divines or canonists. This broad duty, however, of expelling a heretic sovereign, he qualifies by two conditions : first, that the subjects should have the power, "ut vires habeant idoneas ad hoc subditi ;" secondly, that the heresy be undeniable. There can, in tnith, be no doubt that the allegiance professed to the queen by the seminary priests and Jesuits, and, as far as their influence extended, by all Catholics, was with this reservation— till they should be sti-ong enough to throw it oif. See the same tract, p. 229. But, after all, when we come fairly to con- sider it, is not this the case with every disaffected party in every state ? a good reason for watchful- ness, but none for extemiination. insincerity or dissimulation than accused persons generally are. 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 accursed 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 an- nals of their country, that dark and gloomy pile affords associations not quite so numer- ous and recent as the Bastile once did, yet enough to excite our hatred and horror. But, standing as it does in such striking con- trast to the fresh and flourisliing construc- tions 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 vmder the pre- text of treason, but sustained by veiy little evidence of any other offense than the ex- ercise of the Catholic ministry, excited in- dignation throughout a great part of Europe. The queen was held forth in ))amphlets, dispersed every where from Rome and Douay, not only as a usurper and hei-etic, but a tyrant more ferocious than any lieath- en persecutor, for inadequate parallels to whom they ransacked all former history. f ' Rishton and Ribadeneira. See in Lingard, note U, a specification of the different kinds of torture used in this reign. The government did not pretend to deny the employment of torture. But the Puritans, eager as they were to exert the utmost severity of the law against the pi-ofessors of the old religion, had more regard to civil liberty than to approve such a violation of it. Heal, clerk of the council, wrote, about 1585, a vehement book against the ecclesi- astical system, from which Whitgift picks out va- rious enormous propositions, as he thinks them; one of which is, " that lie condemns, without ex- ception of any cause, racking of grievous offend- ers, as being cruel, barbarous, contrai-y to law, and unto the liberty of English subjects." — Strype's Whitgift, p. 212. t The persecution of Catholics in England was made use of as an argument against permitting 94 CONSTITUTIONAL HISTORY OF ENGLAND [Chap. HI. 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 bo passed over, and it was thought expe- dient to repel it by two remarkable pam- phlets, both ascribed to the pen of Lord f f Burleigh. One of these, enti- Defense ot * ' iiiequecnby tied, " The Execution of Justice Burleigh. England for Maintenance of public and private Peace," appears to have been published in 1583. It contains an elaborate justification of the late prosecu- tions for treason, as no way connected with religious tenets, but gi'ounded on the ancient laws for protection of the queen's person and government from conspiracy. It Henry IV. to reign in France, as appears by the title of a tract published in 1586 : Avertissement des CathoUques Anglois aux Francois Catho- liques, du danger oil ils sent de perdre leur re- ligion, et d'experimenter, comme en Angleterre, la cruaute des ministres, s'ils recoivent a la cou- ronne un roy qui soil heretique. It is in the Brit- ish Museum. One of the attacks on Elizabeth deserves some notice, as it has lately been revived. In the stat- ute 13 EHz., an expression 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 pru- dery, as if the usual term implied the possibiUty of her having unlawful issue. But the papistical libelers, followed by an absurd advocate of Mary in later times, put the most absurd interpretation on the word "natural," as if it was meant to se- cure the succession for some imagiuaiy bastards by Leicester. And Dr. Lingard is not ashamed to insinuate the same suspicion, vol. viii., p. 81, note. Surely what was congenial to the dark ma- lignity of Persons, and the blind phrensy of Whit- aker, does not become the good sense, I can not say the candor, of this writer. It is true that some, not prejudiced against Elizabeth, have doubted whether "Cupid's fiery dart" was as elfectually " quenched in the chaste beams of the watery moon" as her poet intimates. This I must leave to the reader's judgment. She certainly went strange lengths of indelicacy. But, if she might sacrifice herself to the dueen of Cni- dus and Paphos, she was unmercifully severe to those about her, of both sexes, who showed any inclination to that worship, though under the es- cort of Hj-men. Miss Aikin, in her well-written and interesting Memoirs of the Court of EUza- beth, has collected several instances from Har- rington and Birch. It is by no means trae, as Dr. Lingard asserts, on the authority of one Faimt, an austere Puritan, that her court was dissolute, com- paratively, at least, with the general character of courts ; though neither was it so virtuous as the enthusiasts of the Elizabethan period suppose. 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 duo temporal allegiance to their sovereign. Nor were any indicted for treason but such as obstinately maintained the pope's bull de- priving the queen of her crown. And even of these offenders, as many as after con- demnation would renounce their traitorous principles, had been permitted to live ; such was her majesty's unwillingness, it is as- serted, to have any blood spilled without this just and urgent cause proceeding from themselves. But that any matter of opin- ion, not proved to have ripened into an overt act, and extorted only, or rather conject- ured, 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 favorable 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 relig- ion." Its scope was to palliate the impu- tation of excessive cruelty with which Eu- rope was then resounding. Those who re- vere the memoiy of Lord Burleigh must blush for this pitiful apology. " It is af- firmed for truth," he says, " that the forms of torture in their severity or rigor of exe- cution have not been such and in such man- ner perfoiTned, as the slanderers and sedi- tious libelers have published. And that even the principal offender, Campian him- self, who was sent and came from Rome, and continued here in sundry corners of the realm, having secretly wandered in the greater part of the shires of England in a disguised suit, to the intent to make spe- cial preparation of treasons, was never so racked but that he was perfectly able to * Somers Tracts, i., 189. Strj-pe, iii., 205, 265, 480. Strjpe says that he had seen the manu- script of this tract in Lord Burleigh's hand- writ- ing. It was answered by Cardinal Allen, to whom a reply was made by poor Stubbe, after he had lost his right hand. An Italian translation of the Execution of Justice was published at Lon- don in 1584. This shows how anxious the queen was to repel the charges of cruelty, wliich she must have felt to be not wholly unfounded. Eliz. — Catholics.] FROM HENRY VII. TO GEORGE II. 95 walk and to write, and did presently Avrite and subscribe all his confessions. The queen's servants, the wai'ders, whose of- fice and act it is to handle the rack, were ever by those that attended the examina- tions specially charged to use it in so char- itable a manner as such a thing might be. None of those who were at any time put to the rack," he proceeds to assert, " wei-e asked, during their torture, any question as to points of doctrine ; but merely concern- ing 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 for- mer detections or confessions, that he was guilty ; nor was the torture ever employed to wring out confessions at random, nor un- less the party had first refused to declare the ti'Uth at the queen's commandment." Such miserable excuses serve only to min- gle contempt with our detestation.* But it is due to Elizabeth to obsei-ve, that she order- ed 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.f I should be reluctant, but for the consent of several authorities, to ascribe thi.s little tract to Lord Burleigh, for his honor'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] nmst either think he doth an unlawful act, as without' the special grace of God he can not think otherwise, or else, by refusing it, must be- come a ti'aitoi', 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 * Somers Tracts, p. 209. t State Trials, i., 1160. bear arms against all foreign princes, and namely the pope, that sliould any way in- vade your majesty's dominions, he should be a traitor. For hereof this commodity will ensue, that those papists, as I think most papists would, that should take this oath, would be divided from the gi-eat mutual confidence which is now between the pope and them, by reason of their afflictions for him ; and such priests as would refuse that oath then, no tongue could say for shame that they suffer for religion, if they did suffer. "But here it may be 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 equiv- ocate, and also have the pope's dispensation for the present oath as well as for the oth- er. 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 conscience of an oath, the ti'ouble, losses, and disgraces that they suf- fer for refusing the same do sufficiently tes- tify ; and you know that the perjuiy of ei- ther oath is equal." These sentiments are not such as bigoted theologians were then, or have been since, accustomed to entertain. " I account," he says afterward, " that putting to death does no ways lessen them, since we find by ex- perience that it worketh no such effect, but, like hydra's heads, uj)on cutting oft' one, seven gi-ow up, persecution being account- ed as the badge of the Church ; and there- fore they should never have the honor to take any pretense of martyrdom in Eng- land, where the fullness of blood and great- ness 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 constancy ; so that, for my part, I wish no lessening of their number but by preaching and by ed- ucation of the younger under schoolmas- ters." And hence the means he recom- mends for keeping down popery, after the encouragement of diligent preachers and schoolmasters, are, " the taking order that, from the highest counselor to the lowest constable, none shall have any charge or office but such as will really pray and com- 96 COXSTITUTIOXAL HISTORY OF ENGLAND [Chap. III. munic.'ite in their congregation according to the doctriue received generally into this realm ;"' and next, the protection of tenants against their popish landlords, " that they be not put out of their living for embracing the estal)lished religion." " This," he says, " would greatly bind the commons' hearts imto you, in whom, indeed, consisteth the power and strength of your realm ; and it ■will make them less, or nothing at all, de- pend on their landlords. And, 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 com- parable to the danger of having many thou- sands depending on the adverse partj'."* The strictness used with recusants, which much increased from 1579 Increased se- verity of the or I08O, had the usual conse- govermnent. qugn^e of persecution, that of midtiplying hypocrites. For, in fact, if men will once bring themselves to comply, to take all oaths, to practice all conformity, to oppose simulation and dissimulation to arbitraiy 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 aggi-a- vated. The laws enacted against poperj' were precisely calculated to produce tliis i-esult. Many indeed, especiallj- of the fe- male sex, whose religion, lying commonly more in sentiment than reason, is less duc- tile to the sophisms of wordly wisdom, stood out and endured the penalties. But the oath of supremacy was not refused, the worship of the Church was fi-equented, by multitudes who secretly repined for a change ; and the council, whose fear of open enmity had prompted their first se- verities, were led on by the fear of dissem- bled resentment to devise 3'et further meas- ures of the same kind. Hence, in 1584, a law was enacted, enjoining all Jesuits, sem- inaiy 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 penaltj- of fine and imprisonment at the queen's pleas- ure was inflicted on such as, knowing any priest to be within the realm, should not " * Somers Tracts, 164. 1 discover it to a magistrate. This seemed to fill up the measure of persecution, and to render the longer preservation of this obnoxious religion absofutely impracticable. Some of its adherents presented a petition against this bill, praj-ing that they might not be suspected of disloyalty on account of refraining from the public worship, which they did to avoid sin ; and that their priests might not be banished from the kingdom.* And they all very justly complained of this determined oppression. The queen, with- out any fault of theirs, they alleged, had been alienated by the artifices of Leice.ster and Walsingham. Snares were laid to in- volve them unawares in the guilt of treason ; their steps were watched by spies ; and it was become intolerable to continue in Eng- land. Camden indeed asserts that counter- feit letters were privately sent in the name of the Queen of Scots or of the exiles, and left in papists' houses. f A general inqui- sition seems to have been made about this time; but whether it was founded on suffi- cient grounds of previous suspicion, we can not absolutely determine. The Earl of Northumberland, brother of him who had been executed for the rebellion of 1570, and the Earl of Arundel, son of the unfortunate Duke of Norfolk, were committed to the Tower, where the former put an end to his own life (for we can not charge the govern- ment Avith an unproved murder) ; and the second, after being condemned for a ti-aitor- ous coiTespondence with the queen's ene- mies, died in that custody. But whether or * Strj-pe, iii., 298. Shelley, thoagh notoriously loyal and frequently employed by Burleieli, was taken up and examined before the cooncil for pre- paring this petition. t P. 591. Proofs of the text are too numerous for quotation, and occur continuallj- to a reader of Strype's 2d and 3d volumes. In vol. iii.. Append, 158, we have a letter to the queen from one An- tony T\"rrel, a priest, who seems to have acted as an informer, wherein he declares all his accusa- tions of Catholics to be false. This man had for- merly professed himself a Protestant, and return- ed afterward to the same religion ; so that his ve- racity may be dubious. So, a Uttle further on, we find in the same collection, p. 250, a letter from one Bermet, a priest, to Lord Arundel. lamenting the false accusations he had given in against liim, and craving pardon. It is always possible, as I have just hinted, that these retractations may be more false than the charges. But ministers who employ spies, without the utmost distrust of their information, are sore to become their dupes, and end by the most violent injustice and tyranny. Eliz. — Catholics.] FROM HENRY VH. TO GEORGE II. 97 no some conspiracies (I mean more active than usual, for there -was one pei-petual con- spiracy of Rome and Spain during most of the queen's reign) had preceded these se- vere and unfair methods by which her rain- istiy counteracted them, it was not long be- fore schemes, more formidable than ever, were put in action against her life. As the whole body of Catholics was imtated and alarmed by the laws of proscription against their clergj-, and by the heavy penalties on recusancy, which, as they alleged, showed a manifest purpose to reduce them to pov- erty,* so some desperate men saw no surer means to rescue their cause than the queen's assassination. One Somerville, half a luna- tic, and Parrj', 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 unconnected plots against Elizabeth's life.f More deep-laid machinations were * The rich Catholics compounded for tlieir recu- sancy by aniiHal pajmeuts, which were of some consideration in the queen's rather scanty reve- nue. A list of such recusants, and of the annual fines paid by them in 1.594. is published in Strj-pe, iv., 197 ; but is plainly very imperfect. The total was £3323 Is. lOd. A few paid as much as £140 per annum. The average seems, however, to have been about £20. — Vol. iii.. Append., 153 ; see, also, p. 258. Probably these compositions, though op- pressive, were not quite so serious as the Catho- lics pretended. t Parrj- seems to have been privately reconciled to the Church of Rome about 1580, after which he continued to correspond with Cecil, but generally recommendine; 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 tliat he could wish that in those cases it might please her majesty to par- don the dismembering and drawing. — Strype, iii., 260. He sat afterward in the Parliament of 1584, taking, of course, the oath of supremacy, where he alone opposed the act against Catholic priests.— Pari. Hist., 822. Whether he were actually guUtj' of plotting against the queen's life (for this part of his treason he denied at the scaffold), I can not say ; but his speech there made contained some very good ad%-ice to her. The niiuistiy garbled this before its publication in Holingshed and other books ; but Strj pe has preser\ ed a genuine copy, vol. iii., Append., 102. It is plain that Parrj- died a Catholic, though some late writers of that com- manion 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 instance. " There ex- ist," he says, " in the archives at Simancas, sev- eral notices of such offers." — P. 384. G carried on by several Catholic laymen at home and abroad, among whom a brother of Lord Paget was the most prominent.* These had in view two objects, the deliver- ance 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 sm-prising to see • It might be inferred from some authorities that the Catholics had become in a great degree disaf- fected to the queen about 1584, in consequence of the extreme rigor practiced 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, favor the enterprise ; first, for the sake of the restitution of the Catholic faith ; secondly, for the right and interest which the dueen of Scots has to the king- dom, and to deliver her out of prison ; thirdly, for the great trouble and miserj- they endured more and more, being kept out of all emploj-ments, and dishonored in their own countries, and treated with great injustice and partiality when they have need to recur to law ; and also for the execu- tion of the laws touching the confiscation of their goods in such sort as in so short time would re- duce the Catholics to extreme povertj'." — Strj^pe, iii., 415. And in the report of the E arl of Northum- berland'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 rigor used toward the Catholics was the great means of promoting Philip's designs, occur in Birch's Memoirs of Eliz- abeth, i., 82, et alibi. We have also a letter from Persons in England to Allen in 1386, giving a good account of the zeal of the Catholics, though a verj' bad one of their condition through severe imprisonment and other ill ti-eatinent. — Strj-pe, iii., 412, and Append., 151. Rishton and Ribadeneira hear testimony that the persecution had rendered the laity more zealous and sincere. — De Schismate, 1. iii.. 320, and 1. iv., 53. Yet to all this we may oppose their good con- duct in the year of the Spanish Armada, and in general during the queen's reign ; which proves that the loyalty of the main body was more firm than their readers wished, or their enemies be- lieved. However, if any of my readers should in- chne to suspect that there was more disposition among this part of the commimitj' to throw off their allegiance to the queen altogether than I have admitted, he may possibly be in the right; and I shall not impugn his opinion, provided he concurs in attributing the whole, or nearly the whole, of this disafTection to her unjust aggres- sions on the liberty- of conscience. 98 CONSTITUTIONAL HISTOllY OF ENGLAND [Chap. Ill how eveiy letter seems to have been inter- cepted, every thread of these conspiracies unraveled, eveiy secret revealed to these wise counselors of the queen. They saw that while one lived whom so many deemed the presumptive heir, and from whose suc- cession they anticipated, at least in possibil- ity, 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 Babington's conspiracy enabled them with truth, or a semblance of truth, to impute a participa- tion in that crime to the most dangerous en- emy whom, for their mistress, their relig- ion, or themselves, they had to apprehend. Mary had now consumed the best years ^ of her life in custody, and, though still the perpetual object of the queen's vigilance, had perhaps gi-adually become somewhat less formidable to the Protestant interest. Whether she would have ascend- ed the throne if Elizabeth had died during the latter years of her imprisonment, must appear very doubtful, when we consider the increasing sti'ength of the Puritans, the antipathy of the nation to Spain, the pre- vaihng opinion of her consent to Darnley's murder, and the obvious expedient of ti'eat- ing her son, now advancing to manhood, as tlie representative of her claim. The new projects imputed to her friends even against the queen's life, exasperated the hatred of the Protestants against Mary. An associ- ation was formed in 1584, the members of which bound themselves by oath " to with- stand and pursue, as well by force of arms as by all other means of revenge, all manner of persons, of whatsoever state they shall be, and their abettors, that shall attempt any act, or counsel or consent to any thing that shall tend to the harm of her majesty's roy- al person ; and never to desist from all man- ner of forcible pursuit against such persons, to the utter extermination of them, their counselors, aiders, and abettors. And if any such wicked attempt against her most royal person shall be taken in hand or pro- eui-ed, 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 !), diat the same may be avenged, we do not only bind ourselves both jointly and sever- ally never to allow, accept, or favor any such pretended successor, by whom or for whom any such detestable act shall be attempted or committed, as unworthy of all govern- ment in any Christian 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 wo or any of us can devise and do, or cause to be devised and done for their utter overthrow and extirpation."* The pledge given by this voluntaiy asso- ciation 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 in- vasion or rebellion should be made by or for any person pretending title to the crown after her majesty's decease, or if any thing be confessed or imagined tending to the hurt of her person w-ith the privity of any such person, a number of peers, privy counsel- ors, and judges, to be commissioned by the queen, should examine and give judgment on such offenses, and all circumstances re- lating thereto ; after which judgment all persons against whom it should be published should be disabled forever to make anj^ such claim. f I omit some further provisions to the same effect, for the sake of brevity. But we may remark that this statute dif- fers from the associators' engagement, in omitting the outrageous threat of pursuing to death any person, whether privy or not to the design, on Avhose behalf an attempt against the queen's life should be made. The main intention of the statute was to procure, in the event of any rebellious move- ments, what the queen's counselors had long ardently desired to obtain from her, an ab- solute exclusion of Mary from the succes- sion. But if the scheme of assassination, devised by some of her despei-ate partisans, had taken effect, however questionable might be her concern in it, I have little doubt that the rage of the nation would, with or with- out 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 inter- * f tate Trials, i., Il(i2. t 27 Eliz., c. i. Eliz. — Catholics.] FROM HENRY VII. TO GEORGE II. 99 est of religion, is never applied, so far as 1 remember, but to the punishment of Mary, which they hail demanded in 1572, and now clamored for in 1586. The addresses of both houses to the queen, to carry the sen- tence passed by the commissioners into ef- fect, her evasive answers and feigned reluct- ance, as well as the strange sceoes of hy- pocrisy which she acted afterward, are well- known matters of history, upon which it is unnecessary to dwell. No one will be found to excuse the hollow affectation of Eliza- Execution heth; but the famous sentence that of Mary, brought Mary to the scaffold, though it has certainly left in popular opinion a dark- er stain on the queen's memory than any other ti'ansaction of her hfe, if not capable of complete vindication, has at least encount- ered a disproportionod censure. It is, of course, essential to any kind of Remarks apology for Elizabeth in this mat- opon it. tgj.^ tj^at Mary shoiild have been as- senting to a conspiracy against her life ; for it could be no real crime to endeavor at her own deliverance ; nor, under the circum- stances of so long and so unjust a detention, would even a conspiracy Jigainst the aggress- or's power afibrd 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 tliat reign (the witnesses not having been examined in open court), yet the deposi- tions of her two secretaries, joined to the confessions of Babington and other conspir- ators, form a body of evidence, not, indeed, UTesistibly convincing, but far stronger than we find in many instances where condem- nation has ensued. And Hume has alleged sufficient reasons for believing its truth, de- rived from the gi-eat probability of her con- curring in any scheme against her oppress- or from the certainty of her long correspond- ence with the conspirators (who, I may add, had not made any difficulty of hinting to her their designs against the queen's life*), and * In Murden's State Papers we have abundant evidence of Mary'fi acquaintance witli the plots going forward in 1583 and 1586 against Elizabeth's government, if not with those for her assassination. But Thomas Morgan, one of the most active con- spirators, writes to her, 9th July, 1586 : " There be some good members that attend opportunity to do the Clueen of England a piece of service, which I trust will quiet many things, if it shall please God from the deep guilt that the falsehood of the charge must inevitably attach to Sir Fran- cis Walsingham.* Those, at least, who can not accpfit the Queen of Scots of her husband's murder, will hardly imagine tliat 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 perliaps complete, we must hypothetically assume her guilt, in or- der to set this famous problem in the casu- istry of public law upon its proper footing. It has been said so often, that few, per- haps, wait to reflect whether it has been said with reason, that Mary, as an inde- pendent 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 nat- ural, as forming the basis of a just and ra- tional jurisprudence, every independent gov- ernment is supreme within its own terri- toiy. Strangers, voluntarily resident within a state, owe a temporary allegiance to its sovereign, and are amenable to the juris- to lay his assistance to the cause, for the wliich I pray daily," p. 530. In her answer to this letter, she does not advert to this hint, but mentions Bab- ington as in correspondence with her. At her trial she denied all communication with him. [In a letter from Persons to a Spanish nobleman in 1597, it is said that Mary had reproved the Duke of Guise and Archbishop of Glasgow for omitting to supply a sum of money to a young English gentle- man who had promised to murder Elizabeth. This, however, rests only on Persons's authority. — Dodd's Church History of Catholics, by Tiemey : the edi- tor gives the letter from a manuscript in his own possession. Vol. iii., Append, lix., 1845.] * It may probably be answered to this, that if the letter signed by Walsingham as well as Dav- ison to Sir Amias Paulet, urging him " to find out some way to shorten the life of the Scots queen," be genuine, which can not, perhaps, be justly questioned (though it is so in tlie Biog. Brit., art. Walsingham, note O), it will be difficult to give him credit for any scrupulousness with respect to Mary. But, without entirely justifying this letter, it is proper to remark, what the Marian party clioose to overlook, that it was written after tlie sentence, during the queen's odious scenes of grimace, when some might argue, though errone- ously, that, a legal trial having passed, the foi-mal method of putting the prisoner to death might, in so peculiar a case, be dispensed with. This was EHzabeth's own wish, in order to save her repu- tation, and enable her to throw the obloquy on her servants ; which, by Paulet's pradence and honor in refusing to obey her, by privately murdering hia prisoner, she was reduced to do in a very bungling anil scandalous manner. 100 CONSTITUTIONAL HISTORY OF ENGLAND [Chap, III diction of its ti-ibunals; and this principle, which is perfectly conformable to natural law, has been extended by positive usage even to those who are detained in it by force. Instances have occurred very re- cently in England, when prisoners of war have suff ered death for criminal offenses ; and, if some have doubted the propriety of canying such sentences into effect, where a penalty of unusual severity has been in- flicted by our municipal law, few, I believe, would dispute the fitness of punishing a prisoner of war for willful murder, in such a manner as the general practice of civil so- cieties and the prevailing sentiments of man- kind agi'ee to point out. It is certainly tnie that an exception to this rule, incorporated with the positive law of nations, and estab- lished, no doubt, before the age of Elizabeth, has rendered the ambassadors of sovereign princes exempt, in all ordinary cases at least, from criminal process. Whether, however, an ambassador may not be brought to pun- ishment for such a flagi-ant abuse of the con- fidence 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 \^Titers who are most in- clined to respect the privileges with which courtesy and convenience have invested him.* A sovereign, during a temporaiy residence in the territories of another, must of course possess as extensive an immunity as his representative ; but that he might, in such circumstances, frame plots for the prince's assassination with impunity, seems to take for gi-anted some principle that I do not apprehend. But, whatever be the privilege of inviola- * (luestions were put to civilians bj- the queen's order in 1570, concerning the extent of Lesley, bishop of Ross's privilege as Marj-'s ambassador. — Murden Papers, p. 18. Somers Tracts, i., 166. They answered, first, that an ambassador that raises rebellion against the prince to whom be is sent, by the law of nations, and the civil law of the Romans, has forfeited the pri\'ileges of an ambas- sador, and is liable to punishment ; secondly, that if a prince be lawfully deposed from his public au- thorit}-, and another substituted in his stead, the agent of such a prince can not challenge the privi- leses of an ambassador, since none but absolute princes, and such as enjoy a royal prerogative, can constitute ambassadors. These questions are so far curious, that they show the jus gentium to have been already reckoned a matter of science, in which a particular class of lawyers was conversant. bility attached to sovereigns, it must, on ev- ery rational ground, be confined to those who enjoy and exercise dominion in some independent ten-itory. An abdicated or de- throned monarch may preser^'e his title by the courtesy of other states, but can not rank with sovereigns in the tribunals where public law is administered. I should be rather sui-prised to hear any one assert that the Parliament of Paris was incompetent to try Christina for the murder of Monaldes- chi ; and though we must admit that Ma- ry's resignation of her crown was compul- sory, and retracted on the first occasion, yet after a twenty years' loss of possession, when not one of her former subjects avow- ed allegiance to her, when the King of Scot- land had been so long acknowledged by Eng- land and bj" all Europe, is it possible to con- sider her £ks more than a titular queen, di- vested of every substantial right to which a sovereign tribunal could have regard ? She was styled accordingly, in the indictment, " Mai-y, daughter and heic of James the Fifth, late King of Scots, otherwise called Majy , 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 tlie special commis- sion, which Elizabeth noticed as a strange indignity. The commission, however, was perfectly legal under the recent statute.* But while we can hardly pronounce Ma- ry's execution to have been so wholly ini- quitous 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 fuU pen- alty. The Queen of Scots' detention in England was in violation of all natural, pub- lic, and municipal law, and if reasons of state policy or precedents from the custom of princes are allowed to extenuate this in- justice, it is to be asked whether such reas- ons and such precedents might not palliate the crime of assassination imputed to her. Some might perhaps allege, as was so fre- quently 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 * Str\-pe, 360, 362. Civilians were consulted about the legality of trying Mary. Idem, Append., 138. Eliz. — Catholics.] FROM HENRY VII. TO GEORGE U. 101 eveiy feeling that could plead for mercy. Of this necessity different judgments may perhaps be formed ; it is evident that Ma- ry's death extinguished the best hope of po- pery in England ; but the relative force of the two religions was gi-eatly changed since Norfolk's conspiracy ; and it appears to me that an act of Parliament explicitly cutting lier oft" from the crown, and at the same time entailing it on her son, would have af- forded a very reasonable prospect of secur- ing the succession against all serious dis- turbance. But this neither suited the in- clination of Elizabeth, nor of some among those who surrounded her. As the Catholics endured without any Continued Open munuuring the execution Sf Roman " ^^r on whom their fond hopes Catholics, had SO long rested, so for the re- mainder of the 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 behold what should be the result of that great cast in the game of human politics, what the craft of Rome, the power of Phil- ip, 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 eveiy county repaired to the standard of the lord-lieutcnant, imploring that they might not be susjjected of bartering the na- tional independence for their religion itself It was then that the venerable Lord Mon- tague brought a troop of horse to the queen at Tilbury, commanded by himself, his son, and grand-son.* It would have been a sign * Butler's English Catholics, i., 2.i9. Hume. This is strongly continued by a letter printed not loni» after, and republished in the Harleian Mis- cellany, vol. i., p. 142, with the name of one Leigh, El seminary priest, but probably the work of some Protestant. He says, " for contributions of money, and for all other warlike actions, there was no dif- ference between the Catholic and the heretic. But in this case [of the Armada] to withstand the threatened conquest, yea, to defend the person of the queen, there appeared such a sympathy, con- course, and consent of all sorts of persona, without respect of religion, as they all appeared to be ready to fight against all strangers, as it were with one heart and one body." Notwithstanding; this, 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, oa the contrary, more frequent, and the fines for recusancy exacted as rigorously as be- fore.* A statute was enacted, restraining popish recusants, a distinctive name now first imposed by law, to particular places of residence, and subjecting them to other vexatious provisions. f All persons were forbidden by proclamation to harbor any of whose conformity they were not assured. f Some indulgence was doubtless shown dur- ing all Elizabeth's reign to particular per- sons, and it was not unusual to release priests from confinement ; but such preca- rious and irregular connivance gave more scandal to the Puritans than comfort to the opposite party. The Catholic martyrs under Elizabeth amount to no inconsiderable num- General oh- ber. Dodd reckons them at 191 ; servaiions. Milner has raised the list to 204. Fifteen of these, according to him, suffered for de- nying the queen's supremacy, 126 for exer- cising 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.§ There I am far from thinking that it would have been safe to place the Catholics, generally speaking, in command. Sir William Stanley's recent treach- ery in giving up Deventer to the Spaniards made it unreasonable for them to complain of exclusion from trust. Nor do I know that they did so. But trust and toleration are two different things. And even with respect to the fonner, I believe it far better to leave the matter in the hands of the ex- ecutive government, which will not readily suffer itself to be betrayed, than to proscribe, as we have done, whole bodies by a legislative exclusion. Whenever, indeed, the government itself is not to be ti-usted, there arises a new condition of the problem. * Strype, vols. iii. and iv., passim. Life of Whitgift, 401, 505. Murden, 067. Birch's Me- moirs of Elizabeth, Lingard, &c. One hundred and ten Catholics suffered death between 1588 and 1603.— Lingard, 513. t 33 Eliz., c. 2. t Camden, .566. Strype, iv., 56. This was the declaration of October, 1.591, which Andreas Phi- lopater answered. Ribadeneira also inveighs against it. According to them, its publication was delayed till after the death of Hatton, when the persecuting part of the queen's council gained the ascendency. $ Butler, 178. In Coke's famous speech in open- 102 CONSTITUTIONAL HISTORY OF ENGLAJfD [Chap. III. seems, nevertheless, to be good reason for doubting whether any one who was execu- ted might not have saved his life by explic- itly 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 circumstan- ces, to be an act of ti-eason. But both Lord Burleigh, in his Execution of Justice, and Walsingham, in a letter published by Bur- net,* positively assert the contrary ; and I am not aware that their assei-tion has been disproved. This certainly furnishes a dis- tinction between the persecution under Eliz- abeth (which, unjust as it was in its opera- tion, yet as far as it extended to capital in- j flictions, had in view the security of the gov- [ emment), and that which the Protestants had sustained in her sister's reign, springing from mere bigotiy and vindictive rancor, 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 exten- uation. But that which renders these con- , demnations of popish priests so iniquitous, is, that the belief in, or, rather, the refusal ing the case of the Powder Plot, he says that not more than thirty priests and five receivers had been executed in the vrhole of the queen's reiffn, and for reUgion not any one. — State Trials, ii., 179. Dr. Lingard says of those vrho were executed between 1588 and the queen's death, " The butch- ery, with a few exceptions, was performed on the victim while he was in full possession of his senses."— Vol. viii., p. 356. I should be glad to think that the few exceptions were the other way. Much would depend on the humanity of the sher- iff, which one might hope to be stronger in an English gentleman than his zeal against popen,-. But I can not help acknowledging that there is reason to believe the disgusting cruelties of the le- gal sentence to have been frequently inflicted. In an anonymous memorial among Lord Burleigh's papers, written about 158C, it is recommended that priests persisting in their treasonable opinion should be hanged, " and the manner of drawing and quartering forborne." — Strj'pe, iii., 620. This seems to imply that it had been usually practiced on the living. And Lord Bacon, in his observa- tions on a libel written against Lord Burleigh in 1592, does not deny the "bowelings" of Catholics, but makes a sort of apology for it, as " less cruel than the wheel or forcipation, or even simple burning." — Bacon's Works, vol. i., p. 534 * Burnet, ii., 418. to disclaim, a speculative tenet, dangerous, indeed, and incompatible with loyalty, but not coupled with any overt act, was con- strued into treason ; nor can any one afiect to justify these sentences who is not pre- pared to maintain that a refusal of the oath of abjuration, while the pretensions of the liouse of Stuart subsisted, might lawfully or justly have incurred the same penalty.* An apology was always deduced for these measures, whether of resti'iction or punish- ment, adopted against all adherents to the Roman Church, from the restless activity of that new militia which the Holy See had lately organized. The mendicant orders established in the thirteenth century had lent former popes a powerful aid toward subjecting both the laity and the secular priesthood, by their superior learning and * " Though no papists were in this reign put to death purely on account of their religion, as num- berless Protestants had been in the woful days of Q,ueen Marj-, yet many were executed for treason. ' — Churton's Life of Nowell, p. 147. Mr. Soutbey, whose abandonment of the oppressed side I sin- cerely regret, holds the same language ; and a lat- er writer, Mr. Towuseud, in his Accusations of History against the Church of Rome, has labored to defend the capital, as well as other, pmiish- ments of Catholics under Elizabeth, on the same pretense of their treason. Treason, by the law of England, and according to the common use of language, is the crime of re- bellion or conspiracy against the government. If a statute is made, by which the celebration of cer- tain religious rites is subjected to the same penal- ties as rebellion or conspiracy, would any man, free from prejudice, and not designing to impose upon the uninformed, speak of persons convicted on such a statute as guilty of treason, without expressing in what sense he uses the words, or deny that they were as truly punished for their religion as if they had been convicted of heresy ? A man is punished for religion when he incurs a penalty for its profession or exercise, to which he was not lia- ble on any other account. This is appUcable to the great majority of capi- tal convictions on this score under Elizabeth. The persons convicted could not be traitors in any fair sense of the word, because they were not charged with any thuig properly denominated treason. It certainly appears that Campian and some other jjriests about the same time were indicted on the statute of Edward III. for compassing the queen's death, or intending to depose her. But the only evidence, so far as we know or have reason to sus- pect, that could be brought against them, was their own admission, at least by refusing to adjure it. of the pope's power to depose heretical princes. I suppose it is unnecessary to prove that, without some overt act to show a design of acting upon 1 tliis principle, it could not fall within the statute. Eliz. — Catholics.] FROM HENRY VII. TO GEORGE II. 103 ability, their emulous zeal, their systematic concert, their implicit obedience. But in all these requisites for good and faithful jan- izaries of the Church, they were far excell- ed by the new order of Ignatius Loyola. Rome, I believe, found in their services what has stayed her fall. They conti'ibu- ted in a veiy material degree to check the tide of the Reformation. Subtle alike and intrepid, pliant in their direction, unshaken in their aim, the sworn, implacable, unscru- pulous enemies of Protestant governments, the Jesuits were the legitimate object of jealousy and restraint. As every member of that society enters into an engagement of absolute, unhesitating obedience to its su- perior, no one could justly complain that lie was presumed capable at least of commit- ting any crimes that the policy of his mon- arch might enjoin. But if the Jesuits, by their abilities and busy spirit of intiigue, promoted the interests of Rome, they rais- ed up enemies by the same means to them- selves within the bosom of the Church, and became little less obnoxious to the secular clergy, and to a gi-eat proportion of the iaity, than to the Protestants whom they were commissioned to oppose. Their in- termeddling character was shown in the very prisons occupied by Catholic recu- sants, where a schism broke out between the two parties, and the secular priests loudly complained of their usurping asso- ciates.* 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 disaf- fection. 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 * Watson's duodlibets. Trae relation of the faction begun at Wisbech, 1601. These tracts contain rather an uninteresting account of the squabbles in Wisbech Castle among the prison- ers, but cast heavy reproaches on the Jesuits, as the "fire brands of all sedition, seeking by right or wrong simply or absolutely the monarchy of all England, enemies to all secular priests, and the causes of all the discord in the English nation." — P. 74. I have seen several other pamphlets of the time relating to this difference. Some account of it may be found in Camden, 648, and Strype, iv., 194, as well as in the Catholic historians Dodd and Lingard. j allegiance, with whom the queen would take further order.* Thirteen priests came forward on this, with a declaration of alle- giance as full as could be devised. Some of the jnore violent papists blamed them for this ; and the Louvain divines concur- red in the censure. f There were now two parties among the English Catholics; and those who, goaded by the sense of long per- secution, and inflamed by obstinate bigotry, regarded every heretical government as un- lawful or unworthy of obedience, used ev- eiy machination to deter the rest from giv- ing any test of their loyalty. These were the more busy, but by much the less nu- merous class ; and their influence was main- ly derived from the laws of severity, which they had braved or endured with fortitude. It is equally candid and reasonable to be- lieve that, if a fair and legal toleration, or even a general connivance at the exercise of their worship, had been conceded in the first part of Elizabeth's reign, she would have spared herself those perpetual terrors of rebellion which occupied all her later years. Rome would not, indeed, have been appeased, and some desperate fanatic might have sought her life ; but the English Catholics collectively would have repaid her protection by an attachment which even her rigor seems not wholly to have prevent- ed. It is not to be imagined that an entire ima- nimity prevailed in the councils of this reign as to the best mode of dealing with the ad- herents of Rome. Those temporary conniv- ances or remissions of punishment, which, though to our present view they hardly lighten the shadows of this persecution, ex- cited loud complaints from bigoted men, were owing to the queen's personal humor, or the influence of some advisers more lib- eral than the rest. Elizabeth herself seems always to have inclined rather to indulgence than extreme severity. Sir Christopher Hatton, for some years her chief favorite, incuiTed odium for his lenity toward pa- pists, and was, in their own opinion, secret- ly inclined to them, t Whitgift found enough * Rymer, xv., 473, 488. t Butler's Engl. Catholics, p. 261. t E.ibadeneira says, that Hatton, " animo Cathol- icus, nihil perinde quam innocentcm illorum sau- guinem adeo cradeliter perfumii dolebat." He prevented Cecil from promulgating a more atro- cious edict than any other, which was published 104 CONSTITUTIONAL HISTORY OF ENGI^AND [Chap. la 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 Puri- tan were to enjoy it. But those counselors, on the other hand, who favored the more precise Refonners, and looked coldly on the Established Chuixh, never failed to dem- onstrate their Protestantism by Excessive harshness toward the old religion's adhe- rents. That bold bad man, whose favor is the gi-eat reproiich of Elizabeth's reign, the Earl of Leicester, and the sagacious, dis- interested, inexorable Walsingham, were deemed the chief advisers of sanguinaiy punishments. But, after their deaths, the Catholics were mortified to discover that Lord Burleigh, from whom they had hoped for more moderation, persisted in the same severities ; contrary, I think, to the princi- ples he had himself laid down in the paper fi'om which I have above made some ex- tracts.* The restraints and penalties by which civil governments have at various times thought it expedient to limit the religious liberties of their subjects, may be aiTanged in some- thing 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 tnast. The next step is to restrain the free promulgation of opinions, especially through the press. All prohibitions of the open ex- ercise 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 ex- pressions of opinion. Finally, the last stage of persecution is to enforce by legal penal- ties a conformity to the Established Chm*ch, or an abjuration of hetei'odox tenets. after his death in 1591. — De Schismate Anglic, c. 9. This must have been the proclamation of 29th Nov., 1591, forbidding all persons to harbor any one of whose conformity they should not be well as- sured. * Birch, i., 84. 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 necessi- ty, may, under certain rare circumstances, be conducive to the political well-being of a state, and can then only be reckoned an en- croachment on the principles of toleration when it ceases to jn-oduce a public benefit sufficient to compensate for the privation it occasions to its objects. Such was the Eng- lish Test Act during the interval between 1672 and 1688. But, in my judgment, the instances which the history of mankind af- fords, where even these restrictions have been really consonant to the soundest poli- cy, are by no means numerous. Cases may also be imagined where the fi'ee discussion of controverted doctrines might, for a time at least, be subjected to some limitation for the sake of public tranquillity. I can scarce- ly conceive the necessilj' 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 cany its inquisition into the heart's recesses, and bend the re- luctant conscience to an insincere profession of truth, or extort from it an acknowledg- ment of error, for the purpose of inflicting punishment. The statutes of Elizabeth's reign comprehend every one of these pro- gressive degrees of restraint and persecu- tion. And it is nmch 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 po- litical necessity. That necessity, I am per- suaded, 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 apprehension, or by the ar- bitrary spirit with which our government was administered under Elizabeth. Enz.— Puritans ] FROM HENRY VU. TO GEORGE U. 105 CHAPTER IV. ON THE LAWS OF ELIZABETH'S REIGN RESPECTING PROTESTANT NON CON- FORMISTS. Orisjin of the Differences among the English Prot estants. — Rehgious Inclinations of the Ciueen. — Unwillingness of Many to comply with the established Ceremonies. — Conformity enforced by the Archbishop. — Against the Disposition of Others.— A more determined Opposition, about 1.570, led by Cartwright. — Dangerous Nature of his Tenets. — Puritans supported in the Com mons, and in some Measure by the Council. — Prophesyings. — Archbishops Grindal and Whit gift. — Conduct of the Latter in enforcing Con- formity.— High Commission Court. — Lord Bur leigh averse to Severity. — Puritan Libels. — Attempt to set up a Presbyterian System.— House of Commons averse to Episcopal Au- thority.— Independents liable to severe Laws — Hooker's Ecclesiastical Polity. — Its Charac ter. — .Spoliation of Churcli Revenues.— General Remarks. — Letter of Walsingham in Defense of the dueen's Govermnent. The two statutes enacted in the first ^ year of Elizabeth, commouly called the acts of supremacy and uniform- ity, 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 juris- diction and legislative power of ecclesias- tical rulers, except under the authority of the crown ; and the second prohibiting all changes of rites and discipline without the approbation of Parliament. It was the con- stant policy of this queen to maintain her ec- clesiastical 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 Romish, less danger- ous, indeed, and inimical to her government, but full as vexatious and determined. I have in another place slightly mention- Origin of the fhe differences that began to differences spring up under Edward VI. be- among the i EnghshProt- tween the moderate Reformers estants. .^^j^^^ established the new Angli- can Church, and those who accused them of proceeding with too much forbearance in casting oft' superstitions and abuses. These diversities of opinion were not without some relation to those which distinguished the two great families of Protestantism in Europe. Luther, intent on his own system of dogmatic theology, had shown much in- dirt'erence about retrenching exterior cere- monies, and had even favored, especially in the first years of his preaching, that spe- cious worship which some ardent Reform- ers were eager to reduce to simplicity.* Crucifixes and images, tapers and priestly vestments, even for a time the elevation of the host and the Latin mass-book, contin- ued in the Lutheran churches, while the disciples of Zuingle and Calvui were care- fully eradicating them as popish idolatry and superstition. Cranmer and Ridley, the founders of the English Reformation, justly deeming themselves independent of any foreign master, adopted a middle course be- tween the Lutheran and Calvinistic ritual. The general tendency, however, of Protes- tants, even in the reign of Edward VI., Avas toward 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 ani- mosity to recede as far as possible, especial- ly in such exterior distinctions, from the opposite denomination. The death of Ed- ward seems to have prevented a further approach to the scheme of Geneva in om* ceremonies, and perhaps in our church gov- ernment. During the persecution of Ma- ry'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 and intolerant fac- tion, both neglected and insulted them.f Divisions soon arose among themselves about the use of the English service, in which a pretty considerable party was dis- posed to make alterations. The chief scene of these disturbances was Frankfort, where Knox, the famous reformer of Scotland, headed the innovators ; while Cox, an emi- nent divine, much concerned in the estab- Slcidan, Hist, de la Riitormation, par Couray- er, ii., 74. t Strype's Cranmer, 354 106 CONSTITUTIONAL HISTORY OF ENGLAND [Chap. IV. lishment of Edsvard VI., and aftei-ward Bishop of Ely, stood up foi- the original lit- urgy. Cox succeeded (not quite fairly, if we may rely on the only narrative we pos- sess) in driving his opponents from the city ; but these disagreements were by no means healed, when the accession of Elizabeth recalled both parties to their own country, neither of them veiy likely to display more mutual charity in their prosperous hour than they had been able to exercise in a common persecution.* The first mortification these exiles endur- ed on their return was to find a more dila- toiy advance toward public reformation of religion, and more of what they deemed lukewarmness, than their sanguine zeal had anticipated. Most part of this delay was ow- ing to the greater prudence of the queen's counselors, who felt the pulse of the nation before they ventured on such essential ■or changes. But there was yet Religious in- ^ *' ciinatioiis of another obstacle, on which the the queen. J^efoniiers had not reckoned: Elizabeth, though resolute against submit- ting to the papal supremacj', was not so averse to all the tenets abjured by Protes- tants, 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 reproved a divine who preached against the real presence, and is even said to have used prayers to the Vir- gin.f But her great struggle with the Re- * These transactions have been perpetuated by a tract, entitled Discourse of the troubles at Frank- fort, first published in 157.5, and reprinted in the weU-known collection, entitled The Phoenix. It is fairly and temperately written, though with an avowed bias toward the Puritan paitj'. Whatev- er we read in any historian on the subject, is de- rived from tliis authority ; but the refraction is of course very different through the pages of Collier and of Neal. t Strype's Annals, ii., 1. There was a Lutlier- an party at the beginning of her reign, to wliich the queen may be said to have inclined, not altogether from religion, but from policy. — Id., i., 53. Her situation was very hazardous ; and in order to con- nect herself with sincere allies, she had thoughts of joining the Smalcaldic league of the German princes, whose bigotry would admit none but members of tlie Augsbuvg Confession. Jewell's letters to Peter Martyr, in the appendix to Bur- net's third volume, and lately published more ac- curately, with many of other refoi-mers, by the Parker Society [1845], throw considerable light on formers was about images, and particularly the ciTicifix, which she retained, with light- ed tapers before it, in her chapel, though in the injunctions to the ecclesiastical visit- ors of 1559, they are directed to have them taken away from churches.* This conces- sion she must have made very reluctantly, for we find proofs the next year of her in- clination 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 favor, f But the strenuous opposi- tion of men so distinguished as Jewell, San- dys, and Grindal, of whom the first declared his intention of resigning his bishopric in case this return toward superstition should be made, compelled Ebzabeth to relinquish her project.t The crucifix was even for a time removed from her own chapel, but re- placed about 1570. § the first two years of Elizabeth's reign, and show that famous prelate to have been what afterward would have been called a Precisian, or Puritan. He even approved a scruple Elizabeth entertained about her title of head of the Church, as apper- taining only to Christ. But the um-easonableness of the discontented party, and the natm-al tenden- cy of a man who has joined the side of power to deal severely with those he has left, made him af- tei'ward their enemy. * Roods and relics accordingly were broken to pieces and burned throughout the kingdom, of which Collier makes loud complaint. This, Strype says, gave much otfense to the Cathohcs ; and it was not the most obvious method of inducing them to conform. t Burnet, iii., App., 290. Strype's Parker, 46. t Q.uantum auguror, non scribam ad te posthac episcopus. Eo enim jam res pei-venit, ut aut cruces argentcs et stannea?, quas uos ubiqne con- fregimus, restituenda; sint, aut episcopatus relin- quendi. — Bumet, 294. I conceive that by cruce$ we are to understand crucifixes, not mere crosses, though I do not find the word, even in Du Cange, used in the former sense. Sandys writes, that he had nearly been deprived for expressing himself wannly against images. — Id., 296. Other proofs of the text may be found in the same collection, as well a.s in Stiype's Annals, and his Life of Par- ker. Even Parker seems, on one occasion, to have expected the queen to make such a retrograde movement in religion as would compel them all to disobey her. — Life of Parker, Appendix, 29 ; a very remarkable letter. $ Strype's Parker, 310. The archbishop seems to disapprove this as inexpedient, but rather cold- ly ; he was far from sharing the usual opinions on this subject. A Puritan pamphleteer took the lib- erty to name the queen's chapel as " the pattern Ei.iz. — ruritans.] fhom henry VII. to george ii. 10^ Tliere was, however, one other subject of dispute between the old and new relig- ions, upon which her mnjesty 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.* Accordingly, the bishops and clergj', though they married by connivance, or, rather, by an ungracious permission, f saw, with very just dissatisfaction, their children treated by the law as the olispring of concubinage. t This continued, in legal and precedent of all superstiton." — Strype's An- nals, i., 471. * Burnet, ii., 395. t One of the injunctions to the visitors of 1559, reciting the offense and slander to the Church that had arisen by lack of discreet and sober beliavior in many ministers, both in choosinq: of tlieir vi^ives, and in livini? with them, directs that no priest or deacon shall marry vvfithout the allowance of the bishops, and two justices of the peace, dwelling near the woman's abode, nor without the consent of her parents or kinsfolk, or, for want of these, of her master or mistress, on pain of not being per- mitted to exercise the ministry, or hold any bene- fice ; and that the man'iages of bishops should be approved by the metropolitan, and also by com- missioners appointed by tlie queen. — Soraers Tracts, i., 65. Burnet, ii., 398. It is reasonable to suppose, that when a host of low bred and illitci'- ate priests were at once released from the obliga- tion to celibacy, many of tliem would abuse their liberty improvidently, or even scandalously; and this probably had increased Elizabeth's prejudice against clerical mati'imony. But I do not suppose that this injunction was ever much regarded. Some time afterwai-d (Aug., 1561) she put forth another extraordinary injunction, that no member of a college or cathedral should have his wife liv- ing within its precincts, under pain of forfeiting all his preferments. Cecil sent this to Parker, telling him, at the same time, that it was with great dif- ficulty he had prevented the queen from altogether forbidding the marriage of priests.— Life of P., 107. And the archbishop himself says, in the letter above mentioned, " I was in a hoiTor to liear such words to come from her mild nature and Christiauly learned conscience, as she spake conccniing God's holy ordinance and institution of matrimony." t Sandys writes to Parker, April, 1559, " The queen's majesty will wink at it, but not stahlish it by law, which is nothing 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 sumpt- uously entertained by the archbishop at Lambeth, took leave of Mrs. Parker with the following cour- tesy : " Madam (the style of a mairied lady) I may not call you ; mistress (the appellation at that time of an unmarried woman) I am loth to call you ; but, Strictness, till the first year of James, when the statute of Mary was explicitly repeal- ed ; though I can not help suspecting thai clerical marriages had been tacitly recog- nized, even in courts of justice, long before that time. Yet it appears less ])robab!e to derive Elizabeth'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 char- acter. Such a reluctance as the queen displayed to return in eveiy point even to the system established under Edward, was no slight dis- appointment to those who thought that too little had been etlected by it. They had beheld at Zurich and Geneva the simplest, and, as they conceived, the purest form of worship. They wore persuaded that the vestments still worn by llie clergy, as in the days of popery, though in themselves indif- ferent, led to erroneous notions among the people, and kept alive a recollection of former superstitions, which would render their return to them more easy in the event of another jiolitical revolution.* They dis- liked some other ceremonies for the same reason. These objections were by no means conliued, as is perpetually insinuated, to a few discontented persons. Except Arch- bishoj) Parker, who had remained in Eng- land dm'ing 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, Grin- dal, Sandys, Nowell, were in favor of leav- ing oir the surplice and what were called the popish ceremonies. f Whether their however, I thank you for your good cheer." This lady is styled, in deeds made while her husband was archbishop, Parker, alias Harlcston, which was her maiden name. And she dying before her husband, her brother is called her heir-at-law, though she left cliildren. But the archbishop pro- cured letters of legitimation, 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 gi'aut, 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 Elizabeth's accession, to yay the bishop for a license to keep a concubine. — Strype's Parker, 203. * Burnet, iii., 305. t Jewell's letters to BulUnger, in Burnet, are full of proofs of his dissatisfaction ; and those who 108 COXSTITUTIONAL HISTORY OF ENGLAND [Chap. IV objections are to be deemed nan-ow and frivolous or otherwise, it is inconsistent with veracity to dissemble that the queen alone was the cause of retaining those obsei-vances to which the gi-eat separation from the An- glican establishment is ascribed. Had her influence been withdrawn, surplices and square caps would have lost their steadiest friend, and several other little accommoda- ; tions to the prevalent dispositions of Protes- j tants would have taken place. Of this it 1 seems impossible to doubt when we read the proceedings of the convocation in 1562, when a proposition to abolish most of the usages deemed objectionable was lost only by a vote, the numbers being 59 to 58.* In thus restiaining the ardent zeal of Reformation, Elizabeth may not have been guided merely by her own prejudices, with- out far higher motives of prudence and even of equity. It is difficult to pronounce in what proportion 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 pow- erful body than their opponents. Nor did the ecclesiastical visitors of 1559 complain of any resistance, or even unwillingness, among the people. f Still the Romish paitj' feel any doubts may easily satisfy themselves from the same collectiou, and from Strj pe as to the oth- ers. The cun-eut opinion, that these scruples were imbibed during the banishment of our Reform- ers, must be received with great allowance. The dislike to some parts of the Anglican ritual had be- gun at home ; it had broken out at Frankfort ; it is displayed in all the early documents of Elizabeth's reign by the English divines, far more warmly than by their Swiss coiTespondeuts. Grindal, when first named to the see of London, had his scruples about wearing the episcopal habits removed by Peter Martjr.— Strj-pe's Grindal, 29. * It was proposed on this occasion to abolish all saints' days, to omit the cross in baptism, to leave kneeling at the communion to the ordinarj 's dis- cretion, to take away organs, and one or two more of the ceremonies then chiefly in dispute. — Burnet, iii., 303, and Append., 319. Strj-pe, i., 297, 299. Nowell voted in the minority. It can hardly be going too far to suppose that some of the majority were attached to the old religion. t Jewell, one of these visitors, writes afterward to MartjT, " Invenimus ubique animos multitudinis satis prepenses ad religionem ; ibi etiam, ubi om- nia putabantur fore difficUlima Si quid erat ob- Btinatte malitiae, id totum erat in presbyteris, illis proesertim, qui aliquando stetissent a nostra sen- tentia." — Burnet, iii.. Append., 289. The common people in London and elsewhere, Strype says, took an active part in demolishing images; the was exti'emely numerous : it comprehended the far greater portion of the beneficed cler- pleasure of destruction, I suppose, mingling with their abhorrence of idolatrj-. And during the con- ferences held in Westminster Abbey, Jan., 15.59, between the Catholic and Protestant divines, the populace, who had been admitted as spectators, testified such disapprobation of the former, that they made it a pretext of breaking off the argu- ment. There was, indeed, such a tendency to an- ticipate the government in reformation, as neces- sitated a proclamation, Dec. 28, 1558, silencing preachers on both sides. Mr. Butler says, from several circumstances it is evident that a great majority of the nation then in- clined to the Roman Catholic religion. — Mem. of Eng. Catholics, i., 146. But his proofs of this are extremely weak. The attachment he supposes to have existed in the laity toward 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 Prot- estant, 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 elec- tions for EUzabeth's first Parliament, the argument would equally prove that the majority was Protes- tant under Mary, since she had recourse to the same means. The whole tenor of historical docu- ments 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 ev- ery respect the least important part of the king- dom. Even according to Dr. Lingard, who thinks fit to claim half the nation as CathoUc in tlie mid- I die of this reign, the number of recusants certified to the council under 23 Eliz., c. 1, amounted only to fifty thousand ; and, if we can trust the authori- ty of other lists, they were much fewer before 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 sus- pected for religion in the city of London, about the time of the Armada, with the whole number of : men fit for arms ; thus making the former amount to seventeen thousand and eighty-three. Mr. Butler has taken up so paradoxical a notion on this subject, that he Uterally maintains the Catholics to have been at least one half of the peo- ple at the epoch of the Gunpowder Plot. — Vol. i., p. 295. We should be glad to know at what time he supposes the grand apostacy to have been con- summated. Cardinal Bentivoglio gives a very different account, reckoning the real CathoUcs, 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 in- clination or general indifference, if it were once established. — Opere di Bentivoglio, p. 83, edit. Paris, 1645. But I presume neither Mr. Butler nor Dr. Lingard would own these adinphorisls. The latter writer, on the other hand, reckons Eliz. — Puritans.] FROM HENRY VII. TO GEORGK U. 109 g3', and all those who, having no turn for controversy, clung with piou.s reverence to the rites and worship of their earliest asso- ciations. It might be thought, perhaps, not very repugnant to wisdom or to charity, that such persons should be won over to the Reformed faith by retaining a few indiffer- ent 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 ra- tional 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 de- stroying at once all old landmarks of rever- ence— a dangerous fanaticism, or a careless irreligion. I know not in what degi-ee these considerations had weight with Elizabeth, but they were such as it well became her to entertain. We live, however, too far from the period of her accession to pass an unqualified decis- ion on the coui-se of policy Avhich it was best for the queen to pursue. The difficulties of effecting a compromise between two in- tolerant and exclusive sects were perhaps insuperable. In maintaining or altering a rehgious 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 favor the more efficient and determined, which may not al- ways be the more numerous party. I am far from being convinced that it would not have been practicable, by receding a httle from that uniformity which governors de- light to prescribe, to have jialliated 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 the Hugeunots of France, soon after 1560, at only one hundredth part of the nation, quoting for this Casteluau, a useful memoir %VTiter, but no author- ity on a matter of calculation. The stem spiiit of Coliini, atrox animus Catonis, rising above all misfortune, and unconquerable, except by the darkest treachery, is sulBciently admirable with- out reducing his party to so miserable a fraction. The Calvinists at this time are reckoned by some at one fourth, but more frequently at one tenth, of the French nation. Even in the beginning of the next century, when proscription and massacre, lukewannness and self-interest, had thimied their ranks, they are estimated by Beutivoglio [ubi su- pra) at one fifteenth. which so many fi-ivolous objections were raised, such as the tippet and surplice, the sign of the cross in baptism, the ring in mat- rimony, the posture of kneeling at the com- munion, might liave been left to private dis- cretion, not possibly without some incon- venience, but with less, as I conceive, than resulted from rendering their observance indispensable. Nor should we allow our- selves to be turned aside by the common reply that no concessions of this kind would have ultimately prevented the disunion 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 iiTimediate danger, and can at best only retard the progress of that intrinsic decay which seems to be the law of all things hu- man, 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 cer- • 1 1.1 T-ii- 1 1 Unwillincr- emonies with which Elizabeth nessofmany would not consent to dispense, ':?"'.?}'>' ' ' with the es- showed itself in irregular trans- taWished c ^\ 'c ceremonies. gressions ot the unitormity pre- scribed by statute. Some continued to wear the habits, others laid them aside ; the communicants 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 chiefly with the malcontents, insulted such of the clergy as obseiTed the prescribed order.* Many of the bishops readily connived at deviations from ceremonies which they dis- approved. Some, who felt httle objection to their use, wei-e against imposing them as necessary. f And this opinion, which led to very momentous inferences, began so much to prevail, that we soon find the ob- jections to conformity more grounded on the unlawfulness of compulsory regulations in the Church prescribed by the civil power, than on any special impropriety in * Strj-pe's Parker, 152, 153. CoUier, 508. In the Lansdowne Collection, vol. viii., 47, is a let- ter from Parker, Apr., 1565, complaining of Turner, dean of Wells, for having made a man do penance for adulteiy in a square cap. t Strype's Parker, 157, 173. 110 CONSTITUTIONAL HISTORY OF ENG^LAND [Chap. IV. the usages them.selve.s. But this principle, which perhaps the scrupulous party did not yet very fully avow, was altogether incom- patible with the supremacy vested in the queen, of which fairest flower of her prerog- ative she wfis abundantly tenacious. One thing was evident, that the Puritan mal- contents were growing eveiy day more nu- merous, more determined, and more likely to win over the generality of those who sin- cerely favored the Protestant cause. There were but two lines to be taken : either to re- lax and modify the regulations which gave offense, or to enforce a more punctual ob- servation 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 advocate of a simpler ritual had by no means assumed the shape of an imbodied faction, whom concessions, it must be owned, are not apt to satisfy, but numbered the most learned and distin- guished portion 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 disposition. He had possibly reas- on to apprehend that Elizabeth, irritated by the prevalent humor for alteration, might burst entirely away from the Protestant side, or sti-etch 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 Stiype, we find the archbishop rather exciting the queen to rigorous measures against the Puritans than standing in need of her admonition. f * This apprehension of Elizabeth's taking a dis^st to Protestanti.sm is intimated in a letter of Bishop Cox, Strype's Parker, 229. t Parker sometimes declares himself willing to see some indulgence as to the habits and other matters ; but the queen's commands being per- emptor}', he had thought it his duty to obey them, though forewarning her that the Puritan ministers would not give way, 225, 227. This, however, is not consistent with other passages, where he ap- pears to importune the queen to proceed. Her The unsettled state of exterior religion which has been mentioned last- Conformity ed till 1565. In the beginnins; of e"f"f'=ed , . ° " the arcll- tliat year a determination was bishop taken by the queen, or rather, perhaps, the archbishop, to put "f "thers. a stop to all irregularities in the public serv- ice. He set forth a book called Advertise- ments, containing orders and regulations for the discipline of the clergy. This modest ti- tle 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 commi.ssion Sampson, dean of Christ Church, and Humphrey, president of Magdalen College, Oxford, men of signal non-conformity, but at the same time of such eminent reputation, that, when the law took its course against them, no other ofi^nder could hope for indulgence. On re- fusing to wear the customaiy habits, Samp- son was deprived of his deaneiy, but the other seems to have been tolerated. f This instance of severity, as commonly happens, rather irritated than intimidated the Puritan clergy, aware of their numbers, their pop- ularity, and their powerful friends, but above all sustained by their own sincerity and earnestness. Parker had taken his res- olution to proceed in the vigorous course he had begun. He obtained from the queen a proclamation, peremptorily requir- ing a conformity in the use of the clerical vestments and other matters of discii)line. The London ministers, summoned before himself and their bishop Grindal, who did not very willingly co-operate with his met- ropolitan, were called upon for a promise to comply with the legal ceremonies, which thirty-seven out of ninety-eight refused to wavering conduct, partly owing to caprice, partly to insincerity, was naturally vexatious to a man of his firm and ardent temper. Possibly he might dissemble a little iu writing to Cecil, who was against driving the Puiitaus to exti'emities. Bat, on the review of his whole behavior, he must be reckoned, and always has been reckoned, the most severe disciplinarian of Elizabeth's first Iiierarchy, though more violent men came afterward. * Shype's Annals, 41C. Life of Parker, 159. Some years after, these advertisements obtained the queen's sanction, and got the name of Articles and Ordinances. — Id., 160. t Strype's Annals, 416, 430. Life of Parker, 134. Sampson had refused a bishopric on account of these ceremonies. — Burnet, iii., 292. Eliz. — Puritans.] mOM HENRY VII. TO GEORGE II. Ill make. They were, in consequence, sus- pended from their ministiy, and their livings put in sequestration. But these, unfortu- nately, as was the case in all this reign, were the most conspicuous both for their gener- al character and for their talent in preach- ing.* Whatever deviations from uniformity ex- isted within the pale of the Anglican Church, no attempt had hitherto been made to form separate assemblies ; nor could it be deem- ed necessary, while so much indulgence had been conceded to the scrupulous clergj'. But they were now reduced to determine whether the imposition of those rites they disliked would justify, or render necessary, an abandonment of their ministry. The bishops of that school had so far overcome their repugnance as not only to observe the ceremonies of the Church, but, in some in- stances, to employ compulsion toward oth- ers, f A more unexceptionable, because more disinterested, judgment was pronoun- ced 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 super- fluous rites, and still more the severity used toward good men, dissuaded their friends from deserting their vocation on that ac- count. Several of the most respectable opponents of the ceremonies were equally adverse to any open schism. t But the ani- mosities springing from heated zeal, and the smart of what seemed oppression, would * Life of Parker, 214. Sti-ype says, p. 223, that the suspended ministers preached again after a little time by comuvance. t Jewell is said to have become strict in enfor- cing the use of the surplice. — Annals, 421. t Strype's Annals, i., 423 ; ii., 316. Life of Par- ker, 243, 348. Bumet, iii., 310, 32.5, 337. Bishops Grindal and Horn vrrote to Zurich, saying plainly, it was not their fault that the habits were not laid aside, with the cross in baptism, the use of or- gans, baptism by women, &c., p. 314. This last usage was much inveighed against by the Calvin- ists, because it involved a theological tenet differ- ing from their own, as to the necessity of baptism. In Strype's Aimals, 501, we have the form of an oath taken by all midwives, to exercise their call- ing without sorcery or superstition, and to baptize with the proper words. It was abolished by James I. Beza was more dissatisfied than the Helvetic divines with the state of the English Church — An- nals, i., 462. Collier, 503 — but dissuaded the Pu- ritans from separation, and advised them rather to comply with the ceremonies. — Id., 511. not suffer the English Puritans generally to acquiesce in such temperate counsels. They began to form separate conventicles in London, not ostentatiously, indeed, but of course without the possibility of eluding no- tice. It was doubtless worthy of much con- sideration, whether an established church- government could wink at the systematic disregard 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 stale, which might induce cool-headed men to doubt the expediency of too much straitening the reins. But there are few, I trust, who 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 wor- ship. This it was vain to expect from the queen's arbitrary spirit, the imperious hu- inor 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 Protestant 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 hired on pretense of a wedding, and fourteen or fifteen of them were sent to prison.* They behaved on their examination with a rude- ness as well as self-sufficiency, that had al- ready begun to characterize the Puritan fac- tion. But this can not excuse the fatal er- ror of molesting men for the exercise of their own religion. These coercive proceedings of the arch- bishop wei-e feebly seconded, or directly thwarted, by most leading men both in Church and State. Grindal and Sandys, successively bishops of London and arch- bishops of York, were naturally reckoned at this time somewhat favorable to the non- conforming ministers, whose scru])les they had partaken. Parkhurst and Pilkington, bishops of Norwich and Durham, were openly on their side.f They had still more effectual support in the queen's council. The Earl of Leicester, who possessed more * Strype's Life of Parker, 242. Life of Grindal, 114. t Buniet, iii., 316. Strj-pe's Parker, 155, et I alibi. I 112 COXSTITUTIOXAL HISTORY OF ENGLAND [Chap. IV, power than any one to sway her wavering and capricious temper, the Earls of Bed- ford, Huntingdon, and Wanvick, regarded as the steadiest Protestants among the ar- istocracy, the wise and grave Lord-lieeper Bacon, the sagacious Walsingham, the ex- perienced Sadler, the zealous KnoUj'S, con- sidered these ohjects of Parkers 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.* Cecil him- self, though on intimate terms with the archbishop, and concumng generally in his measures, was not far removed from the latter way of thinking, if his natural caution and extreme dread at this juncture of losing the queen's favor had permitted him more unequivocally to express it. Those whose judgment did not incline them toward 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 gi-eater part of its benefices were sup- plied by conformists of veiy doubtful sincer- ity, who would resume their mass-books with more alacrity than they had cast them aside. f Such a deficiency of Protestant clergy had been experienced at the queen's accession, that for several years it was a common practice to appoint laymen, usual- ly mechanics, to read the service in vacant churches. t These were not always whol- * Id., 226. The Church had bat two or three friends, Strj pe says, in the council about ]572, of vrliom Cecil was the chief. — Id., 388. t Burnet says, on tlie authoritj- of the visitors' reports, that out of 9400 beneficed clercrymen, not more than about 200 refused to conform. This caused for some years just apprehensions of the danger into which rehgion was brought by their retaining their affections to the old superstition; "so that," he proceeds, "if Q.ueen EUzabeth had not lived so long as she did, till aU 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 suc- ceeded before that time, they had probably turn- ed about again to the old superstition as nimbly as they had done before in Q.ueen 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 li^'ing. — Annals, i., 1G6. X Strjpe's Annals, 138, 177. CoUier, 436, 46.5. This seems to show that more churches were empty by the desertion of popish incumbents than ly illiterate ; or if they were, it was no more than might be said of the popi.sh clergy, the vast majority of whom were destitute of all useful knowledge, and could read little Lat- in.* Of the two universities, Oxford had become so strongly attached to the Romish 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. f But the foregoing note would lead ns to suppose. I believe that many went off to foreign parts from time to time, who had complied in 1559 ; and oth- ers were pot out of their Uvings. The Roman Catholic writers make out a longer Ust than Bur- net'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 ben- efices were vacant. — Annals, i., 323. But in Ely, out of 152 cures, only 52 were served in 1560. — L. of Parker, 72. * Parker wrote in 1561 to the bishops of big province, enjoining them to send him certificates of the names and qualities of all their clergy ; one column, in the form of certificate, was for learning: "And this," Str\-pe says, "was commonly set down ; Latine aliqua verba intelligit, Latine ntctm- que inteUigit, Latine pauca intelligit," Icc. Some- rimes, 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 oninstructed. The Greek tongue was never gen- erally taught in the universities or pubUc schools rill the Reformarion, and perhaps not so soon. Since this note was written, a letter of Gibson has been published in Pepys's Memoirs, vol. ii., p. 154, meurioning a catalogue he had found of the clergy in the archdeaconrj- of Middlesex, A.D. 1563, with their qualifications annexed. Three only are described as docri Larine et Graece ; twelve are called docri simply; nine. Latine docri: thirtj-one, Latine mediocriterinteUigentes : forty-two, Latine perperam, ntcunque aliquid, pauca verba, kc, ia- teUigentes ; seventeen are non docri or indocti. If this was the case in London, what can we think of more remote parts ? t In the struggle made for popery at the queen's accession, the Lower House of Convocarion sent up to the bishops five articles of faith, all strongly Roman Catholic. These had previously been transmitted to the two Lniversiries, and returned with the hands of the greater part of the doctors to the first four. The fifth they scrupled, as trench- ing too much on the queen's temporal power. — Burnet, ii., 388 ; iii., 269. Strj-pe says, the Uuiversiries were so addicted to poperj-, that for some years few educated in them were ordained. — Life of Grindal, p. 50. And Eliz. — Puritans.] FROM HENRY VII. TO GEORGE II. 113 at Cambridge, which had been equally pop- i ish at the queen's accession, the opposite faction soon acquired the ascendant. The younger students, imbibing ardently the : new creed of ecclesiastical liberty, and ex- cited by Puritan sermons, began to throw off their surplices, and to commit other breaches of discipline, from which it might I be infened that the generation to come would not bo less apt for innovation than the present.* 'Wood's Autiquitics of the Uuiversity of Oxford contain 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 afi'ectiouaries." These chiefly came from the West, " where po- pery greatly prevailed, and the gentiy were bred up in that religion." — Strj-pe's Aimals, ii., 539. But aftenvard, Wood complains, " througli the in- fluence of Humphrey and Reynolds (the latter of whom became divinity lectui-er on Secretary Wal- Bingham's foundation in 1586), the disposition of the times, and the long continuance of the Earl of Leicester, the principal patron of the Puritanical faction, 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 Ox- ford, vol. ii., p. 228. Previously, however, to this change toward Puritanism, the University had not been Anglican, but popish ; which Wood liked much better than the hrst, and ueai-ly as well as the second. A letter from the University of Oxford to Eliza- beth on her accession (Heame's edition of Roper's Life of More, p. 173) shows the accommodating char- acter of these academies. They extol Mary as an excellent queen, but are consoled by the thought of her excellent successor. One sentence is curi- ous : " Cum patri,fralri, sorori, nihil fuerit repub- lica. carius, rcligione optatius, vera gloria dulcius ; cum in hac familia ha; laudes floraeriut, vehe- menter confidimus, &c., quae ejusdem stirpis sis, easdem cupidissime prosccuturam." It was a sin- gular train of complaisance to praise Henry's, Ed- ward'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 creed^ or devised a new one for herself, she was sure of the acquiescence of this ancient and learn- ed body. A preceding letter to Cardinal Pole, in which the times of Henry and Edward are treated more cavalierly, seems by the style, whicli is very elegant, to have been the production of the same pen. * The fellows and scholars of St. John's College, to the number of three hundi-ed, threw off their hoods and surplices in 156.5, without any opposi- tion from their master, till Cecil, as Chancellor of the University, took up the matter, and insisted on their conformity to the established regulations. This gave much dissatisfaction to the University ; H The first period in the history of Pui'i- tanism includes the time from the _ . , . A more ue- queen s accession to 1570, during tennmed which the retention of supersti- ^{',[,'ut"i'5°7"y tioiis ceremonies in the Church leUhyCart- had been the sole avowed ground of complaint. But when these obnoxious rites came to be enforced with unsparing rigor, and even those who voluntarily re- nounced the temporal advantages of the establishment were hunted from their pri- vate conventicles, they began to consider the national system of ecclesiastical regimen as itself in fault, and to transfer to the insti- tution of episcopacy that dislike they felt for some of the prelates. The ostensible found- er 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 Cam- bridge. He began, about 1570, to inculcate the unla^vfulness of any form of church- government except what the apostles had instituted, namely, the Presbyterian. A deserved reputation for virtue, learning, and acuteness, an ardent zeal, an inflexible self- confidence, a vigorous, mde, and arrogant style, marked him as the formidable leader of a religious faction.* In 1572 he pub- lished his celebrated Admonition to the Par- liament, calling on that assembly to reform the various abuses subsisting in the „ ^ Dangerous Church. In this ti'eatise, such a nature of , J ••if ,.• J- his tenets. hardy spirit oi innovation was dis- played, and schemes of ecclesiastical pol- icy so novel and extraordinary were devel- oped, that it made a most important epoch in the contest, and rendered its termination far more improbable. The hour for liber- al concessions had been suffered to pass not only the more intemperate part)% but many heads of colleges and grave men, among wliom we arc rather surprised to find the name of Whitgift, interceding with their cliancellor for some mitiga- tion as to these unpalatable obsei-vances. — Strj pe's Annals, i., 441. Life of Parker, 194. Cambridge had, however, her Catholics, as Oxford had her Puritans, of whom Dr. Caius, founder of the col- lege that bears his name, was among the most re- markable.— Id., 200. The chancellors of Oxford and Cambridge, Leicester and Cecil, kept a very strict hand over them, especially the latter, who seems to iiave acted as paramount visitor over ev- ei^y college, making them reverse any act which he disapproved. — Sti-ypc, passim. " Strype's Annals, i.. 583. Life of Parker, 312, 347. Life of Whitgift, 27. 114 CONSTITUTIONAL HISTORY OF ENGLAND [Chap. IV. 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 sur- plice, but for the whole ecclesiastical hie- rarchy, interwoven as it was with the tem- poral constitution of England. It had been the first measure adopted in throwing off the j'oke of Rome to invest the sovereign with an absolute control over the Anglican Church, so that no part of its co- ercive discipline could be exercised but by his authority, nor any laws enacted for its governance without his sanction. This su- premacy, indeed, both Henry VIII. and Edward VI. had carried so far, that the bishops were reduced jilmost to the rank of temporal officers, taking out commissions to rule their dioceses during the king's pleasure ; and Cranmer had prostrated at tlie feet of Heniy 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 conciliate the Cath- ohcs, while, by means of the High Com- mission 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 Rome for another head of their Church. The disciples of Cartwright now learned to claim an ecclesiastical independence, as un- constrained as any that the Romish priest- hood in the darkest ages had usm-ped. " No civil magistrate in councils or assem- blies for church matters," he says in his Admonition, "can either be chief modera- tor, over-ruler, judge, or determiner ; nor has he such authority as that, without his consent, it should not be lawful for ecclesi- astical persons to make any church orders or ceremonies. Church matters ought or- dinarily to be handled by church officers. The principal direction of them is by God's ordinance committed to the ministers of the Church and to the ecclesiastical governors. As these meddle not with the making civil laws, so the civil magistrate ought not to ordain ceremonies, or determine controver- sies in the Church, as long as they do not inti-ench upon his temporal authority. 'Tis tlie prince's province to protect and defend the councils of his clergy, to keep the peace, to see their decrees executed, and to pun- ish the contemners of them ; but to exercise no spiritual jurisdiction."* " It must be remembered," he says in another place, " that civil magistrates must govern the Church according to the rules of God pre- scribed 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 them- selves unto the Church, to submit their j sceptres, to throw down their crowns be- fore the Church, yea, as the prophet speak- I eth, to lick the dust off the feet of the Church. "f It is diflficult to believe that I am transcribing the words of a Protestant I writer, so much does this peissage call to mind the tones of infatuated arrogance which had been heard from the lips of Gregoiy VII. and of those who trod in his footsteps. t The strength of the Protestant party bad been derived, both in Germany and in Eng- land, far less from their superiority in argu- ment, however decisive this might be, thaa from that desire which all classes, and espe- * Cartwright's Admonition, quoted in Neal'g Hist, of Puritans, i., 88. t Madox's Vindication of Church of England acrainst Neal, p. 122. This writer quotes several verj- extravagant passages from Cartwright, which go to prove irresistibly tliat he would have made CO compromise short of the overthrow of the Es- tabUshed Church, p. Ill, kc. "As to you, dear brethren," he said, in a Puritan tract of 1570, " whom God hath called into the brunt of the bat- tie, the Lord keep you constant, that ye j-ield nei- ther to toleration, neither to any other subtle per- suasions of dispensations and licenses, which were to fortify their Romish practices ; but, as you fight the Lord's fight, be valiant. ' — Madox, p. 287. } These principles had already been broached by those who called Calvin master ; he had him- self become a sort of prophet-king at Geneva. And Collier quotes passages fi-om Knox's Second Blast, inconsistent with any government, except one slavishlj" subser\ ient to the Church. — P. 444. The non-juring historian holds out the hand of fellow- ship to the Puritans he abhors, when they preach up ecclesiastical independence. Collier liked the royal supremacy as Uttle as Cartwright; and in giving an account of Banci-oft s attack on the non- conformists for denying it, enters upon a long dis- cussion in favor of an absolute emancipation from the control of laymen. — P. 610. He does not even approve the determination of the judges in Caw- drey's, case (5 Coke's Reports), tliough against the non-conformists, as proceeding on a wrong princi- ! pie of setting up the State above the Church. — P. I 634. Eliz— ruritans.] FROM HENRY VII. TO GEORGE II. 115 cially the higher, had long experienced to emancipate themselves from the thraldom of ecclesiastical jurisdiction. For it is ever found that the generality of mankind do not 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 acquaintance with ecclesiastical history, and knew the encroachments for- merly made by the hierarchy throughout Europe — encroachments perfectly distin- guishable from those of the Roman 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 whatever plausibil- ity it might be maintained that a connection with temporal magistrates could only cor- rupt the purity and shackle the liberties of a Christian church, this argument was not for them to urge who called on those mag- istrates to do the Church's bidding, to en- force its decrees, to punish its refractory members ; and while they disdained to ac- cept 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, declared their averseness to any religious establishment, especially as accompanied with coercive power, even in favor 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 ecclesiastical polity, to place the different professions of religion on an equal footing — but to substitute his own model of govern- ment, the one, exclusive, unappealable stand- ard of obedience, with all the endowments, so far as applicable to its frame, of the pres- ent church, and with all the support to its discipline that the civil power could afford.* " The school of Cartwright were as little dispos- ed as the Episcopalians to see tlie laity fatten on Church property. Bancroft, in his famous sermon preached at Paul's Cross in 1588 (p. 24), divides the Puritans into the clergy factions and the lay factions. The former, he says, contend and lay it down in tlieir supplication to Parliament in 158.5, that things once dedicated to a sacred use ought so to remain forever, and not to be converted to any private use. The lay, on the contrary, think it enough for the We are not, however, to conclude that every one, or even the majority, of those who might be counted on the Puritan side in Elizabeth's reign, would have subscribed to these extravagant sentences of Cart- wright, or desired to take away the legal supremacy of the crown.* That party ac- quired 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 quot- ed from the Puritans breathed a sphit of ecclesiastical usurpation that might one day become dangerous, many were of opinion that a spirit not less mischievous in the present hieraixhy, under the mask of the queen's authority, was actually manifesting itself in deeds of oppression. The upper ranks among the laity, setting aside court- iers, 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 spe- cies 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. f But by the act of the clergy to fare as the apostles did. Cartwright did not spare those who longed to pull down bishop- rics for the sake of plundering them, and charged those who held impropriations with sin. Bancroft takes delight in quoting his bitter phrases from the Ecclesiastical Discipline. * The old friends and protectors of our Reform- ers at Zurich, BuUinger and Gualter, however they had favored the principles of the first nou-confonn- ists, write in strong disapprobation of the innova- tors of 157-1. — Strype's Annals, ii., 316. And Fox, the martyrologist, a refuser to confoi-m, speaks, in a remarkable letter quoted by Fuller in his Church History, p. 107, of factiosa ilia Puritanorum capita, saying that he is totus ab iis alienus, and unwill- ing perbacchari in episcopos. The same is true of Bernard Gilpin, who disliked some of the cere- monies, and bad subscribed the Articles with a reservation, "so far as agreeable to the Word of God ;" but was wholly opposed to the new reform of Church discipline. — Carletou's Life of Gilpin, and Wordsworth's Ecclesiastical Biography, vol. iv. Neal has not reported the matter faithfully. t " The Puritan," says Persons the Jesuit in 1594, "is more generally favored throughout the realm with all those which are not of the Roman relig- ion than is tlie Protestant, upon a certain general persuasion that his profession is the more perfect, 116 CONSTITUTIONAL HISTORY OP ENGLAND [Chap, TV. fifth of Elizabeth, Roman Catholics were excluded from the House of Commons; or, if some that way aff ected might occasional- ly creep into it, yet the tenor of penal laws impending over their heads would make them extremelj' cautious of betraying their sentiments. This continbuted, with the prevalent tone of public opinion, to tlu'ow such a weight into the Pm-itanical scale in the Commons, as it required all the queen's energy to counterbalance. In the Parliament that met in Apiil, 1571, Puritans a few days only after the com- i^n^hrcom- mencemeut of the session, Mr. mons, Strickland, " a gi'ave and ancient man of gi'eat zeal," as the reporter styles him, began the attack by a long but appa- rently temperate speech on the abuses of the Church, tending only to the retrench- ment of a few superstitions, as they were thought, in the Liturgy, and to some re- forms in the disposition of benefices. He proceeded to bring in a bill for the refonna- tion of the Common Prayer, which was read a first time. Abuses in respect to ben- especially in great towns, where preachers have made more impression in the artificers and burgh- ers than in the couuti-y people. And among the Protestants themselves, all those that were less in- terested in ecclesiastical livings, or other prefer- ments depending on the State, are more affected coimiionly to the Puritans, or easily are to be in- duced to pass that way for the same reason." — Doleman s Conference about the next Succession to the Crown of England, p. 242. And again : " The Puritan party at home, in England, is thought to be most vigorous of any other, that is to saj-, most ardent, quick, bold, resolute, and to have a great part of the best captains and soldiers on their side, which is a point of no small moment." — P. 244. I do not quote these passages out of trust in Father Persons, but because they coincide with much besides that has occurred to me in reading, and especially with the Parliamentarj- proceedings of this reign. The following observation will con- firm (what may startle some readers I, that the Pu- ritans, or at least those who rather favored them, had a majority among the Protestant gentrj' in the queen's days. It is agreed on all hands, and is quite manifest, that they predominated in the House of Commons ; but that house was composed, as it has ever been, of the principal landed pro- prietors, and as much represented the general wish of the community when it demanded a further re- form in religious matters, as on any other subject. One would imagine, by the manner in which some express themselves, that the discontented were a small faction, who by some unaccountable means, in despite of the government and the nation, form- ed a majority of all Parliaments under Elizabeth and her two successors. I efices appear to have been a copious theme of scandal. The power of dispensation, which had occasioned so much clamor in former ages, instead of being abolished, or even reduced into bounds at the Reforma- tion, had been transferred entire from the pope to the king and archbishop ; and after the Council of Trent had effected such con- siderable reforms in the Catholic discipline, ' it seemed a sort of reproach to the Protes- I tant Church of England, that she retained all the dispensations, the exemptions, the 1 pluralities, which had been deemed the pe- culiar corruptions of the worst times of po- pery.* In the reign of Edward VI., as I have already mentioned, the canon law be- ing 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 obtain- ed 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 ecclesi- astical tribunals have been always compelled to borrow a gi-eat part of their principles from the canon law, one important conse- quence of which maj' be mentioned by way I of illustration — that they are incompetent to grant a divorce from the bond of marriage in cases of adulteiy, as had been provided in the reformation of ecclesiastical laws com- piled under Edward VI. A disorderly state of the Church, arising partly from the want of any fixed niles 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 aggi'avated the increasing disaff"ection toward the prelacy. A bill was brought into the Commons to take away the giauting of licenses and dispensations by the Ai-chbishop of Canterbuiy, but the * Burnet, iii., 335. Pluralities are still the great ' abuse of the Church of England; and the rules on this head are so complicated and unreasonable, * that scarce any one can remember them. It would be diiEcult to prove that, with a view to the inter- ests of reUgion amiong the people, or of the clergy themselves, taken as a body, any pluralities of benefices with cure of souls ought to remain, ex- cept of small contiguous parishes. But with a view to the interests of some hundred well-con- I nected ecclesiastics, the difficiiltj' is none at all. I [1827.] The case is now far from the same. 1845. Eliz.— Paritaiis.] FROM HENRY VII. TO GEORGE II. 117 queen's interference put a stop to this meas- nre.* The House of Comnnons gave in this ses- sion a more forcible proof of its temper in ecclesiastical concerns. The Ai'ticles of the English Church, originally drawn up under Edward VI., after having undergone some alteration, were finally reduced to their pres- ent form by the convocation of 15C2. But it seems to have been thought necessaiy that they should have the sanction of Par- liament, in order to make them binding on the clergy. Of these articles the far great- er portion relate to matters of faith, concern- ing wliich no difference of opinion had as yet appeared. Some few, however, declare the lawfulness of the established form of consecrating bishops and priests, the su- premacy of the crown, and the power of the Church to order rites and ceremonies. These involved the main questions at is- sue ; and the Puritan opposition was sti'ong enough to withhold the approbation of the Legislature from this part of the national symbol. The act of 13 Eliz., c. 12, accord- ingly enacts, that every pi-iest or minister shall subscribe to all the articles of religion which only concern the confession of the true Christian faith, and the docti'ine of the sacraments, comprised in a book entitled •'Articles whereupon it was agreed," &c. That the word onlij was inserted for the sake of excluding the articles which estab- lished Church authority and the actual dis- cipline, is evident from a remarkable con- versation which Mr. Wentworth, the most distinguished asserter of civil liberty in this reign, relates himself in a subsequent ses- sion (that of 1575) to have held on the sub- ject with Archbishop Parker. " I was," he says, " among others, the last Parlia- ment sent for unto the Archbishop of Can- terbury, 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 V ' Surely, sir,' said I, ' because we were so occupied in other matters that we had no time to examine them how they agreed with the Word of God.' 'What!' said he, 'surely you mistake the matter; you will refer yourselves wholly to us thei-e- in !' ' No ; by the faith I bear to God,' said * D'EweSip. 156. Parliament. Hist., i., 733, &c. I, ' we will pass nothing before wo 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 can- ons unto themselves ; Papa non protest er- rare."* 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 repeated, are here curiously brought into contrast. As to the reservation itself, obliquely insin- uated rather than expressed in this statute, it proved of little practical importance, the bishops having always exacted a subscrip- tion to the whole Thuty-nine Articles. f * D'Ewes, p. 239. Pari. Hist., 790. Btiypes Life of Parker, 39-4. Ill a debate between Cardinal Carvajal, and Rockisane, the famous Calixtiu Archbishop of PragTie, at the Council of Basle, the foiTuer said he would reduce the whole argument to two sylla- bles, Crede. The latter replied he would do the same, and confine himself to two others, Proba. L'Enfant makes a very just observation on this : " Si la gravite de I'histoire le pennettoit, on diroit avec le comique ; C'est tout comme ici. II y a long tems que le premier de ces mots est le lan- gage de ce qu'on appelle I'Eglise, et que le se- cond est le langage de ce qu'on appelle I'hirisie." — Coucile de Basle, p. 193. t Several ministers were deprived in 1572 for refusing to subscribe the Articles. — Strype, ii., 186. Unless these were papists, which indeed is possi- ble, 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 Syn- odalia, vol. i., p. 38, 53. The questions are, 1. Whether this clause was fonnally accepted by convocation, and, 2. Whether it was confirmed by Parliament. It is not found in the manuscript, be- ing a rough draught of the Articles, bequeathed by Parker to Corpus Christi College, Cambridge, signed by all the convocation of 1562 : which, not- withstanding the interlineations, must be taken as a final document, so far as their intentions prevail- ed. Nor is it found in the first English edition, that of 1563. It is found, however, in a Latin edi- tion 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 Con- vocation in 1571, " but not in such a maimer," says Dr. C, " as to prove that it originally belonged to 118 CONSTITUTIONAL HISTORY OF ENGLAND [Chap. IV. It was not to be expected that the haughty spirit of Parker, which had refused to spare the honest sci-uples of Sampson and Cover- dale, would abate of its rigor toward the daring paradoxes of Cartwright. His dis- ciples, in truth, from dissatisfied subjects of the C'hurch, were become her downright rebels, with whom it was hardly practica- ble to make any compromise that would avoid a schism, except by sacrificing the splendor and jurisdiction of an established hi- erarchy. The archbishop continued, there- fore, to hai'ass the Puritan ministers, sup- pressing their books, silencing them in churches, prosecuting them in private meet- the book." This would, of course, destroy its im- portance ia evidence ; but I most 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 lier own authority, caused this clause to be inserted after the dissolution of the Convocation, 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 buiued in the fire of London. We may conjecture that Par- ker had urged the adoption of it upon the Convoca- tion without success, and had therefore recourse to the supremacy of his sovereign. But, according to any principles which have been recognized in the Church of England, the arbitrary nature of that ec- clesiastical supremacy, so as to enact laws with- out consent either of convocation or of Parliament, can not be admitted ; and this famous clause may be said to have wanted legal authority as a cou- Btitution of the Church. But there seems no doubt that it wanted still more the confirmation of the temporal Legislature. The statute establishing the Articles (13 EHz., c. 12) refers to " a book imprinted, intituled Articles, whereupon it was agreed by the archbishops and bishops of both provinces, &c.," following the title of the English edition of 1.563, 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 clauses, 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 subsequent to 1571, the clause was inserted ; and it had doubt- less obtained universal reception long before Laud. The Act of Uniformity, 13 & 14 Car. 2, c. 4, mere- ly 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, be- ing sufficiently secured from misintei-pretation by the context, as well as by other articles. [1845.] ings.* Sandys and Giindal, the moderate reformers of our spiritual aristocracy, not only withdrew their countenance from a party who aimed at improvement by sub- version, 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 Commission, and imjn-isoned upon any refusal to conform.f Strange that these prelates should not have remembered their own magnanimous read- iness to encounter suffering for conscience' sake in the days of Marj-, or should have fondly aiTogated to their particular church that elastic force of resolution, which dis- dains to acknowledge tyrannous power with- in the sanctuary of the soul, and belongs to the martyrs of eveiy opinion without attest- ing the truth of any ! The Puritans, meanwhile, had not lost all their friends in the council, , , . 1 T , some though It had become more dim- measure by cult to protect them. One pow- ""^ eiful reason undoubtedly operated on Wal- singham 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 nobUity had committed themselves to sup- port the title of the Queen of Scots. 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 faitli, and conscious that she could never forgive those who had counseled her detention and sought her death, it would have been unworthy of their prudence and magnanimity to have gone as sheep to the * Neal, 187. Strj-pe's Parker, 3-25. Parker wrote to Lord Burleigh (June, 1573), exciting the council to proceed against some of those men who had been called before the Star Chamber. " He knew them," he said, " to be cowards" — a very great mistake — " and if they of the priN-y council gave over, they would hinder her majesty's gov- enmient more than they were aware, and much abate the estimation of their own authorities," &c. — Id., p. 421. Cartwright's Admonition was now prohibited to be sold.— Ibid. t Neal, 210. Eliz.— Puritana.] FROM HEXIIY VII. TO GEOEGE H. 119 slaughter, and risked tlie desti'uction of Protestantism under a second Mary, if the inti'igues of ambitious men, the pusillanimi- ty of the nmltitude, and the specious pre- text of hereditary right, should favor 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, inti'epid, uncompro- mising spirit of Puritanism ; congenial to that of the Scottish Reformers, by whose aid the lords of the congregation had over- thrown the ancient rehgion in despite of the regent Mary of Guise ? Of conforming churclimen, in general, they might well be doubtful, after tlie oscillations of the three preceding reigns ; but every abhorror of cer- emonies, every rejecter of prelatical author- ity, 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 obedi- ence 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 obnox- ious habits, used his influence with the scru- pulous 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.* We should reason in as confined a man- ner as the 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 counselors 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 non-con- forming clergy by an undeviating rigor. It may justly be said that, in a religious sense, it was a greater good to possess a well- * Strype's Annals, 1., 433. 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 Eliza- beth's reign, gone out of the minds of the people. The lurking priests had gi-eat ad- vantages from the attractive nature of their faith, and some, no doubt, from its persecu- tion. A middle system, like the Anglican, though it was more likely to produce exte- rior conformity, and for that reason was, I think, judiciously introduced at the outset, did not afford such a security against re- lapse, nor draw over the heart so thorough- ly, as one which admitted of no compro- mise. Thus the sign of the cross in bap- tism, one of the principal topics of objection, may well seem in itself a very innocent and decorous ceremony. But if the perpetual use of that sign is one of the most striking superstitions in the Church of Rome, it might be urged in behalf of the Puritans, that the people were less likely to treat it with contempt, when they saw its continu- ance, even in one instance, so sti-iclly insist- ed upon. 1 do not pretend to say that this reasoning 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 gi'eat object of Elizabeth's ministers, it must be kept in mind, was the preservation of the Protestant religion, to which all cer- emonies of the Church, and even its form of discipline, were subordinate. An indif- ferent passiveness among the people, an humble trust in authority, however desira- ble in the eyes of churchmen, was not the temper which would have kept out the right heir from the throne, or quelled the generous ardor of the Catholic gentry on the queen's decease. A matter veiy much connected with the present subject will illustrate the Prophcsy- different schemes of ecclesiastical '"ss- policy pursued by the two parties that di- vided Elizabeth's council. The clergy in several dioceses set up, with encourage- ment from their superiors, a certain relig- ious exercise, called prophesyings. They met at appointed times to expound and dis- cuss together particular texts of Scripture, under the presidency of a moderator, ap- 120 COXSTITUTIONAL HISTOllY OF ENGLAND [Chap. IV. pointed by the bishop, who finished by re- peating the substance of tlieir debate, with his own doteriiiiniition upon it. These dis- cussions were in public ; and it was con- tended that tliis 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 deficien- cies of learning among the pastors them- selves. These deficiencies were indeed glaring; and it is not unlikely that the prophesyings might have had a salutary ef- fect, if it had been possible to exclude the pi-evailing spirit of the age. It must, how- ever, be evident to any one who had expe- rience 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 tlieir control. The queen entirely disliked them, and di- rected Parker to put them down. He wrote accordingly to Parkhurst, bishop of Norwich, for that purpose. The bishop was unwilling to comply. And some privy- counselors interfered by a letter, enjoining him not to hinder those exercises, so long as nothing conhary to the Church was taught tlierein. This letter was signed by Sir Thomas Smith, Sir Walter Mildmay, Bish- op Sandys, and Sir Francis KnoUys. It was, in effect, to reverse what the arch- bishop had done. Parker, however, who was not easily daunted, wrote again to Pai'khurst, that, understanding he had re- ceived 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 counselors, for we find tliat the prohesyings were now put down.* Though many will be of ojiinion that Parker took a statesmanlike view of the interests of the Church of England in dis- couraging these exercises, they were gen- erally regarded as so conducive to instruc- tion that he seems to have stood almost alone in his opposition to them. Sandys's name appears to the above-mentioned letter of the council to Parkhurst. Cox, also, was inclined to favor the prophesyings ; Grindal. Grindal, who in 1575 succeeded * Strype's Annals, ii., 219, 322. Life of Parker, 461. Parker in the see of Canterbury, bore the whole brunt o^the queen's displeasure rath- er 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 disci()line of the Church, might be got rid 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 licenses for preaching should be granted. For no parish priest could with- out a license preach any discourse except the regular homilies ; and this was one of the points of contention with the Puritans.* Grindal steadily refused to comply with this injunction, and was, in consequence, se- * [In one of the canons, enacted by Convocation in 1571, and on which rather an undue stress has been laid in late conti-oversies, we find a restraint laid on the teaching of the clerg-y in their Bermons, who were enjoined to preach nothing but what was agreeable to Scripture, and had been collect- ed out of Scripture by the Catholic fathers and an- cient bishops. Imprimis videbunt coucionatores, ne 19, 230, 272. The archbishop's letter to the queen, declaring his un- willingness to obey her requisition, is in a far bolder strain than the prelates were wont to use in this reign, and perhaps contributed to the sever- ity she showed toward him. Grindal was a very- honest, conscientious man, but too little of a court- ier or statesman for the place he filled. He was on the point of resigning the archbishopric when he died ; there had at one time been some thoughts of depriving him. t Sti-ype's Whitgift, 27, et alibi. He did not disdain to reflect on Cartwriglit for his poverty, the consequence of a scrupulous adiierence to his prin- ciples. But the controversial writers of evei-y side in the sixteenth century display a -want of decency and humanity which even our anonymous libclers have hardly matched. Whitgift was not of much learning, if it be true, as the editors of the Biographia Britaimica intimate, that he had no ac- quaintance with the Greek language. This must seem strange to those who have an exaggerated notion of the scholarship of that age. 121 in private houses, whereto any not of the same family should resort, " seeing the same was never permitted as lawful imder any Christian magistrate." But that which ex- cited the loudest complaints was the sub- scription to three points, the queen's su- premacy, the lawfulness of the Common Prayer and Ordinary 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 de- mand them (if, in fact, the law required sub- scription to all the articles) ; yet it is highly probable that many had hitherto eluded the legal subscriptions, and that others had con- ceived their scruples after having conformed to the prescribed order. The archbishop's peremptory requisition passed, perhaps just- ly, for an illegal stretch of power, f It en- countered the resistance of men pertina- ciously 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 dis- senters. The kingdom resounded with the clamor of those who were suspended or de- prived of their benefices, and of their nu- merous abettors. t They appealed from , * Shype's Whitgift, 115. t Neal, 2G6. Birch's Memoirs of Elizabeth, vol. i., p. 42, 47, &c. t According to a paper in the appendix to Strype's Life of Whitgift, p. 60, the number of conformable ministers in eleven dioceses, not in- cluding those of London and Norwich, the strong- holds of Puritanism, was 786, that of non-compliers, 49. But Neal says that 233 ministers were sus- pended in only six counties, 64 of whom in Nor- folk, 60 in Suffolk, 38 in Essex, p. 268. The Puri- tans foi-med so much the more learned and diligent part of the clergy, that a great scarcity of preach- ers was experienced throughout this reign, in con- sequence of silencing' so many of the former. Thus in Cornwall, about the year 1578, out of 140 clergy- men, not one was capable of preaching. — Neal, p. 245. And, in general, the number of those who could not preach, but only read the seii'ice, was to the others nearly as four to one, the preachers being a majority only in London. — Id., p. 320. This may be deemed by some an instance of Neal's prejudice. But that historian is not so ill- informed as they suppose ; and the fact is hig/ily probable. Let it be remembered that there exist- ed few books of divinity in English ; that all books were, comparatively to tlie value of money, far dearer than at present; that the majority of the clergy were nearly illiterate, and many of them addicted to dmnlienness and low vices ; above all, FROM HENRY VII. TO GEORGE II. 122 COXSTITUTIOXAL HISTORY OF ENGLAJTD [Chap. IV. the archbishop to the privy council. The gently of Kent and other counties strongly interposed in their behalf. They had pow- erful friends at court, especially Knollys, who wrote a warm letter to the archliish- op.* But, secure of the queen's support, who wiis now chieflj' under the influence of Sir Christopher Hatton, a decided ene- my to the Puritans, Whitgift 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, Avhile it restored „. , „ all ecclesiastical jurisdiction to the High Com- •' mission crown, empowered the queen to Court. execute it by commissioners ap- pointed under the great seal, in such man- ner and for such time as she should direct ; whose power should extend to visit, coiTect, and amend all heresies, schisms, abuses, and offenses whatever, which fall under the cog- nizance and are subject to the correction of spiritual authority. Several temporarj" 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 commis- sioners, twelve of whom were bishops, many more privy-counselors, and the rest either clergj'men or civilians. This commission, after reciting the Acts of Supremacy, Uni- formitj-, and two others, directs them to in- quLi'e from time to time, as well by the oaths of twelve good and lawful men, as by wit- nesses and all other means they can devise, of all offenses, contempts, or misdemeanors done and committed contrary to the tenor of the said several acts and statutes ; and also to inquire of all heretical opinions, se- ditious books, contempts, conspiracies, false rumors or talks, slanderous words and say- ings, &c., contrary to the aforesaid laws. Power is given to any three commission- ers, of whom one must be a bishop, to pun- ish all persons absent from church, accord- ing to the Act of Uniformity, or to visit and reform heresies and schisms according to law ; to deprive all beneficed persons hold- ing any doctrine contrary to the Thirty-nine Articles; to punish incests, adulteries, and all offenses of the kind : to examine all sus- pected persons on their oaths, and to pun- ish all who should refuse to appear or to obey their orders, by spiritual censure, or by discretionary fine or imprisonment; to alter and amend the statutes of colleges, ca- thedrals, schools, and other foundations, and to tender the oath of supremacy according to the act of Parliament.* 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 tender- ing what was technically styled the oath ex officio to such of the clergy as were sur- mised to harbor a spirit of Puritanical disaf- fection. This procedure, which was whol- ly founded on the canon law, consisted in a series of interrogations, so comprehensive as to embrace the whole scope of clerical uniformitj-, yet so precise and minute as to leave no room for evasion, to which the sus- pected party was bound to answer upon oath.f So repugnant was this to the rules I of our English law and to the principles of I natural equity, that no species of ecclesias- tical tyranny seems to have excit- , , _ •' •' Lord Bar- ed so much indignation. Lord leigh averse Burleigh, who, though at first ^" ^"^"'y- rather friendly to Whitgift, was soon dis- that they had no means of supplying their deficien- cies by preaching the discourses of others ; and we shall see little caose for doubting Neal's state- ment, though founded on a Paritan document. * Life of Whitgift, 137, et alibi. Annals, ill., 183. * Neal, 274. Strj-pe's Annals, iii., 180. The germ of the High Commission Court seems to have been a commission granted by Mary (Feb., 1547 J to certain bishops and others to inquire after all heresies, punish persons misbehaving at church, and such as refused to come thither, either by means of presentments by witness, or any other politic way they could devise ; with full power to proceed as their discretions and consciences should direct them, and to use all such means as they could invent for the searching of the premises, to call witnesses, and force them to make oath of such things as might discover what they sought after. — Burnet, ii., 347. But the primary model was the Inquisition itself. It was questioned whether the power of depri- vation for not reading the Common Prayer, granted to the high commissioners, were legal, the Act of Uniformity having annexed a much smaller penal- ty. Bat it was held by the judges in the case of Cawdrey (5 Coke's Reports), that the act did not take away the ecclesiastical jurisdiction and su- premacy which had ever appertained to the crown, and by virtue of which it might erect courts with as full spiritual jurisdiction as the archbishops and bishops exercised. t Strj-pe's Whitgift, 135 ; and Appendix, 49. Euz. — Puritans.] FROM HENRY VII. TO GEORGE II. 123 gusted by his intolerant and arbitraiy behav- ior, wrote in strong terms of remonstrance against these articles of examination, as "so cm-iously penned, so full of brunches and circumstances, as he thought the inquisitors of Spain used not so many questions to com- prehend and to trap their preys." The pri- mate replied by alleging reasons in behalf of the mode of examination, but very friv- olous, and such as a man determined to per- severe in an unwarrantable course of action may commonly find.* They had little ef- fect on the calm and sagacious mind of the treasurer, who continued to express his dis- satisfaction, both individually and as one of the privy council. f But the extensive ju- risdiction improvidently granted to the ec- clesiastical commissioners, and which the queen was not at all likely to recall, placed Whitgift beyond the control of the tempo- ral administration. The archbishop, however, did not stand alone in this impracticable endeavor to over- come the stubborn sectaries by dint of hard usage. Several other bishops were en- gaged in the same uncharitable course, J but especially Aylmer of London, who has left a worse name in this respect than any pre- late of Elizabeth's reign. § The violence of Aylmer's temper was not redeemed by many virtues ; it is impossible to exoner- ate his character from the imputations of covetousness and of plundering the revenues of his see ; faults very prevalent among the bishops of that period. The privy council wrote sometimes to expostulate with Ayl- mer, in a tone which could hardly have been employed toward a man in his station who had not forfeited the general esteem. Thus, upon occasion of one Benison, whom he had imprisoned witliout cause, we find a letter signed by Burleigh, Leicester, Walsing- ham, and even Hatton, besides several oth- ers, urging the bishop to give the man a sum of money, since he would recover damages at law, which might hurt his lordship's cred- * Strype's Whitgift, 157, IGO. t Id., 163, 166, et alibi. Birch's Memoirs, i., 62. There was said to be a scheme on foot, about 1590, to make all persous in office subscribe a declara- tion that episcopacy was lawful by the word of God, wliich Burleigh prevented. i Neal, 3-25, 385. j Id., 290. Strype's Life of Aylmer, p. 59, &c. His biographer is here, as in all his writings, too partial to condemn, but too honest to conceal. it. Aylmer, however, who was of a stout disposition, especially when his purse was interested, objected strongly to this sugges- tion, offering rather to confer on Benison a small living, or to let him take his action at law. The result does not appear; but prob- ably the bisliop did not yield.* lie had worse success in an information laid against him for felling his woods, which ended not only in an injunction, but a sharp reprimand from Cecil in the Star Chamber. f What Lord Burleigh thought of these proceedings may be seen in the memorial to the queen on matters of 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 ad- dicted to the preciser sort of preachers, he declares himself " bold to think that the bishops, 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 per- ceive that even among her Protestant sub- jects, in whom consisted all her force, strength, and power, there was so gi-eat 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, namelj', the lessening and diminishing the papistical numbers."t But this great minister's knowledge of the queen's tem- per, and excessive anxiety to retain her fa- vor, made him sometimes fearful to act ac- cording to his own judgment. " It is well known," Lord Bacon says of him, in a treat- ise published in 1591, "that as to her maj- esty, there was never a counselor of his * Neal, 294. t Strype's Aylmer, 71. When he grew old, and reflected that a large sura of money would be due from his family for dilapidations of the palace at Fulham, &c., lie literally proposed to sell his bish- opric to Bancroft. — Id., 169. The other, however, waited for his death, and had above £4000 award- ed to him ; but the crafty old man having laid out his money in land, this sum was never paid. Ban- croft tried to get an act of Parliament in order to render the real estate liable, but without success, page 194. J Somers Tracts, i., 166. I 124 CONSTITUTIONAL HISTORY OP ENGLAND [Chap. IV. lordship's long continuance that was so ap- pliable to her majesty's princely resolutions, endeavoring always after faitliful proposi- tions and remonsti'ances, and these in the best words and the most gi-ateful 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."* Statesmen who betray this unfortunate infinnity 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.f 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 favorite more submissive- ly than became his own dignity. t From such a disposition we could not expect any decided resistance to those measures of se- verity toward the Puritans which fell in so entirely with EUzabeth's temper. There is no middle course, in dealing with reUgious sectaries, between the perse- cution 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 favoring voice of his associ- ates, and still more by that firm persuasion which bigots never know how to appreciate in their adversaries, a Pmitan minister set at naught the vexatious and aiTogant tribu- nal before which he was summoned. Exas- perated, 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 Reforma- tion, 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 Rome, had often turned aside from his graver labors to excite the nide passions of the populace by low ribaldiy and exaggera- * Bacon's Works, i., 532. t Birch's Memoirs, ii., 146. i Id. ib. Burleigh does not shine mach in these memoirs ; hat most of the letters they contain are from the two Bacons, then engaged in the Essex faction, though nephews of the treasurer. ted invective ; nor had the English reform- ers ever scnipled to win pro.selytes by the same arts. What had been accounted holy zeal in the mitred Bale and martyred Lati- mer, might plead some apology from exam- ple in the aggi-ieved Puritan. Pamphlets, chiefly anonymous, were rapidly cir- Pontan culated throughout the kingdom, in- veighing against the prelacy. Of these li- bels 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 movable press, shifted to diflferent parts of the countrj' as the pursuit grew hot, and contained little serious argument, but the unwarrantable invectives of angry men, who stuck at no calumny to blacken their enemies * If these insults upon authority are apt some- times to shock us even now, when long usage has rendered such licentiousness of seditious and profligate libelers almost our daily food, what must they have seemed in the reign of Elizabeth, when the press had no acknowledged liberty, and while the ac- customed tone in addressing those in power was little better than servile adulation ? A law had been enacted some years be- fore, leveled at the books dispersed by the seminary priests, which rendered the pub- lication of seditious libels against the queen's government a capital felony, f 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 jNIartin IMar-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 receiv- ed sentence of death, v>-hicli it was thought * The first of Martin Mar-prelate's Ubels were pubUshed in 1588. In the month of November of that year the archbishop is directed by a letter from the council to search for and commit to prison the authors and printers. — Strj-pe's Whitgift. 288. These pamphlets are scarce : but a few extracts from them may be found in Strype and other au- thors. The abusive language of the Puritan pamph- leteers had begun several years before. — Strype's Annals, ii., 193. See the trial of Sir Richard Knightley, of Northamptonsliire, for dispersing Pu- ritanical libels. State Trials, i., 1263. 1 t 23 Ehz., c. 2. Eliz. — Puritans.] FROM HENRY VII. TO GEORGE II. 125 pi'oper to carry iuto execution.* Udal, a Puritan minister, fell into the gi-asp of the same statute for an alleged libel on the bish- ops, which had surely a very indirect ref- erence to the queen's administration. His trial, like most other political ti-ials 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 con- vict him. So far from being concerned in Martin's writings, Udal professed his disap- probation of them and his ignorance of the author. This sentence appeared too ini- quitous to be executed, even in the eyes of Whitgift, who interceded for his life ; but he died of the effects of confinement.! * Penry s protestation at his death is in a style of the most affecting aud simple eloquence. — -Life of Whitgift, 409, and Appendix, 17G. It is a stick- ing conti-ast to the coarse abuse for which he suf- fered. The authors of Martin Mar-prelate were never fully discoveiped; but Penry seems not to deny his concern in it. t State Trials, 1271. It may be remarked on this as on other occasions, that Udal's trial is evi- dently published by himself; and a defendant, es- pecially in a political proceeding, is apt to give a paitial color to his own case. — Life of Whitgift, 314. Annals of Reformation, iv., 21. Fuller's Church Histoiy, 122. Neal, 340. This writer says : " Among tlie divines who suffered death for the libels above mentioned, was the Rev. Mr. Udal." This is, no doubt, a splenetic mode of speaking. But Warburton, in his short notes on Neal's history, treats it as a willful and audacious attempt to impose on the reader ; as if the ensu- ing pages did not let him into all the circumstan- ces. I will liere observe that Warburton, in his self-conceit, has paid a much higher compliment to Neal than he intended, sj)eakiag of his own com- ments as a "fiUl confutation (I quote from memo- ry) of that historian's false facts and misrepresen- tations." But when we look at these, we find a good deal of wit and some pointed remarks, but hardly any thing that can be deemed a material correction of facts. Neal's History of the Puritans is almost wholly compiled, as far as this reign is concerned, from Strype, and from a manuscript written by some Pu- ritan about the time. It was answered by Madox, afterward Bishop of Worcester, in a Vindication of the Church of England, published anonymous- ly in 1733. Neal replied with tolerable success; but Madox's book is still a useful con-ective. Both, however, were, like most controversialists, preju- diced men, loving the uiterests of their respective factions better than truth, aud not ver>- scrupulous If the libelous pen of Martin Mar-prelate was a thorn to the rulers of the Chmxh, 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 agree- ment, their own platform of gov- Attempt to ernment by synods and classes ; presbvte- the former being a sort of gener- "an system, al assemblies, the latter held in particular shires or dioceses, agi-eeably to the Pres- byterian model established in Scotland. In these meetings debates were had, and deter- minations usually made, sufficiently unfa- vorable to the established system. The ministers composing them subscribed to the Puritan book of discipline. These associa- tions had been formed in several counties, but chiefly in those of Northampton and Warwick, under the dij-ection of Cartwi'ight, the legislator of their republic, who possess- ed, by the Earl of Leicester's patronage, the mastership of a hospital in the latter town.* It would be unjust to censure the archbishop for interfering to protect the dis- cipline of his church against these innova- tors, had but the means adopted for that purpose been more consonant to equity. Cartwright, Avith several of his sect, were summoned before the ecclesiastical commis- sion, where refusing to inculpate themselves by taking the oath ex officio, they were com- mitted to the Fleet. This punishment not satisfying the rigid churchmen, and the au- thority of the ecclesiastical commission be- ing incompetent to inflict any heavier judg- ment, it was thought fit the next year to remove the proceedings into the court of Star Chamber. The judges, on being con- sulted, gave it as their opinion, that since fai- less crimes had been punished by con- demnation to the galleys or perpetual ban- ishment, the latter would be fittest for their offense. But several of the council had more tender regards to sincere, though in- tractable men ; and in the end they were admitted to bail upon a promise to be quiet, after answering some iuteirogatories re- specting the queen's supremacy, and other points, with civility, and an evident wish to about misrepresenting an adversarj-. But Neal had got rid of the intolerant spirit of the Puritans, while Madox labors to justify every act of Whit- gift and Parker. * Life of \^niitgift, 328. 126 CONSTITUTIONAL HISTORY OF ENGLAND [Chap. rv. avoid offense.* It may be observed that ' Caitwright explicitly declared his disappro- ! bation of the libels under the name of Mar- tin Mar-prelfite.f Every political party, however honorable may be its objects and character, is liable to be disgi-aced 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 j must be confessed that few chiefs of faction ' have had the virtue to condemn with suffi- cient energy the misrepresentations which are intended for their benefit. It was imputed to the Puritan faction with more or less of ti-uth, that, not content with the subversion of episcopacy and of ' the whole ecclesiastical polity established in the kingdom, they maintained principles that would essentially affect its civil institu- tions. Their denial, indeed, of the queen's supremacy, earned to such lengths as I have shown above, might justly be considered 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), adulter- ers, witches and demoniacs. Sabbath-break- ers, and several other classes of offenders, to death.} They claimed to theu* ecclesi- astical assemblies the right of detemiining " all matters wherein breach of charity may be, and all matters of docti-ine and manners, so far as appertaineth to conscience." They took away the temporal right of patronage to churches, leaving the choice of ministers to general suffrage. § There are even pass- ages in Cartwright's Admonition which inti- mate that the Commonwealth ought to be fashioned after the model of the Church. || But these it would not be candid to press * Life of Whitgift, 336, 3C0, 3C6. Append., 142, 159. t Id., Append., 135. Annals, iv., 52. t This predilection for the Mosaic polity was not uncommon among the Reformers. Collier quotes passaires from Martin Bucer as strong as could well be found in the Puritiin writmsrs. — P. 303. $ Life of Whiteift, p. 61, 333, and Append., 133. Annals, iv., 1 40. As I have not seen the original works in which these tenets are said to be pro- mulgated, I can not vouch for the fairness of the representation made by hostile pens, though I conceive it to be not verj- far from the truth. II Ibid. Madox's Vindication of the Ch. of Eng. against Neal, p. 212. Strj-pe's Annals, iv., 142. against the more explicit declarations of aH the Puritans in favor of a limited monarchy, though they grounded its legitimacy on the Republican principles of popular consent.* And with respect to the former opinions, they appear to have been by no means com- mon 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.f The pretensions advanced by the school of Cart Wright did not seem the less danger- ous to those who cast their eyes upon what was passing in Scotland, where they receiv- ed a practical illustration. In that kingdom, a form of polity very nearly conforming to the Puritanical platform had become estab- lished at the Reformation in 1560, except that the office of bishop or superintendent stiU continued, but with no paramount, far less arbitrary dominion, and subject even to the provincial synod, much more to the gen- eral assembly of the Scottish Chiu'ch. Even tliis very limited episcopacy was abolished in 1592. The Presbyterian clergy, indi- vidually and collectively, displayed the in- trepid, 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 connection itself had probably given her * The large views of civil government entertained by the Puritans were sometimes imputed to them as a crime by their more courtly adversaries, who reproached them with the writings of Buchanan and Languet.— Life of Whitgift. 253. Annals, iv., 142. t See a declaration to this effect, at which no one could ca\-il, in Strype's Annals, iv., 85. The Puritans, or at least some of their friends, retalia- ted this charge of denying the queen's supremacy on their adversaries. Sir Francis Knollys strongly opposed the claims of episcopacy as a divine in- stitution, which had been covertly insinuated by Bancroft, on the ground of its incompatibility with the prerogative, and urged Lord Burleigh to make the bishops acknowledge they had no superiority over the clergy, except by statute, as the only means to save her majesty from the extreme dan- ger into which she was brought by tlie machina- tions of the pope and King of Spain. — Life of \Vhit2ift, p. 350. 361. 339. He wrote afterward to Lord Burleigh in 1591, that if he misht not speak his mind freely against the power of the bisliops, and prove it unlawful by the laws of this realm, and not by the canon laws, he hoped to be allowed to become a private man. This bold letter he de- sires to have shown to the queen. — Lansdowne Catalogue, vol. lx\-iii., 31. EliZ. — Puritans.] FROM HENRY VII. TO GEORGE 11. 127 such an insight into their temper as well as their influence, that she must have shud- dered at the thought of seeing a Republican assembly substituted for those faithful sat- raps, her bishops, so ready to do her bid- ding, and so patient under the hard usage she sometimes bestowed on them. These prelates did not, however, obtain House of much support from the House Commons of Commons as from their sover- averse to . , , , , , episcopal eign. In that assembly a deter- authonty. j^ijjgj band of Puritans frequently can-ied the victory against the courtiei-s. Every session exhibited proofs of their dis- satisfaction with the state of the Church. The crown's influence would have been too weak without stretches of its prerogative. The Commons in 1.575 received a message forbidding them to meddle with religious concerns. For five years aftei-ward 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 1580, the same topic of ecclesiastical grievances, which had by no means abated during the interval, was revived. The Commons appointed a com- mittee, formed only of the pi'incipal officers of the crown who sat in the House, to con- fer with some of the bishops, according to the irregular and imperfect course of Pai-- liamentary proceedings in that age, " touch- ing the griefs of this House for some things very requisite to be reformed in the Church, as the gi'eat number of unlearned and una- ble ministers, the great abuse of excommu- nications for every matter of small moment, the commutation of penances, and the great multitude of dispensations and pluralities, and other things veiy hurtful to the Church."* The committee reported that they found some of the bishops desirous of a remedy for the abuses they confessed, and of joining in a petition for that pu7-pose to her majesty ; which had accordingly been done, and a gracious answer, pi'omising all convenient reformation, but laying the blame of remissness upon some prelates, had been received. This the House took with gi'eat thankfulness. It was exactly the covu'se which pleased Elizabeth, who had no regard for her bishops, and a real anxiety that her ecclesiastical as well as temporal govern- * D'Ew^es, 302. Strj-pe's Whitrift, 92. Ap- pend., 32. ment should be well administered, 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 a universal conformity, the Lower House drew up a petition in sixteen articles, to which they requested the Lord's concuiTence, com- plaining of the oath ex officio, the subscrip- tion to the three new articles, the abuses of excommunication, licenses for non-resi- dence, and other ecclesiastical grievances. The Lords replied coolly, that they con- ceived many of those articles, which the Commons had proposed, to be unnecessaiy, and that others of them were already pro- vided for ; and that the uniformity of the Common Prayer, the use of which the Com- mons had requested to leave in certain re- spects to the minister's discretion, had been established by Parliament. The two arch- bishops, Whitgift and Sandys, made a more particular answer to each article of the pe- tition, in the name of their brethren.* But, in order to show some willingness toward reformation, they proposed themselves in convocation a few regulations for redress of abuses, none of which, however, on this oc- casion, though they received the royal as- sent, were submitted to the Legislature;! the queen, in fact, maintaining an insuper- able jealousy of all intermeddling on the part of Parliament with her exclusive suprema- cy over the Church. Excluded by Eliza- beth's jealousy from entertaining these re- ligious innovations, which would probably have met no unfavorable reception from a free Parliament, the Commons vented their ill will toward the dominant hierarchy in complaints of ecclesiastical gi'ievances, and measures to redress them ; as to which, even with the low notions of Parliamentaiy 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 swoi-n in one of the courts of justice to do nothing * D'Ewes, 339, et post. Strj-pe's Wliitdt't, 176, &c. Append., 70. t Strype's Annals, iii., 228. 128 CONSTITUTIONAL HlSTOllY OF ENGLAND [Chap. IV in their office contv.ny to the common law. Another went to restrain plurahtics, as to which the prelates would very reluctantly admit of any limitation.* A bill of the same nature passed the Commons in 1589, though not without some opposition. The clergy took so great alami at this measure, that the Convocation addressed the queen in ve- hement language against it ; and the arch- bishop throwing all the weight of his advice and authority into the same scale, the bill expired in the Upper I louse, f A similar proposition in the session of 1601 seems to have miscarried in the Commons. t In the next chapter will be found other instances of the Commons' reforming temper in ec- clesiastical concerns, and the queen's deter- mined assertion of her supremacy. The oath ex officio, binding the taker to answer all questions that should bo put to him, inasmuch as it conti'avened the gener- ous niaxini 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 KnoUys, the stanch enemy of episcopacy, though in high office, spoke in its favor. But the queen put a stop to the proceeding, and Morice lay some time in prison for his boldness. The civil- ians, of whom several sat in the Lower House, defended a mode of procedure that had been borrowed from their own juris- prudence. This revived the ancient ani- mosity between them and the common law- yers. The latter had always manifested a great jealousy of the spiritual jurisdiction, and had early learned to resti-ain its exorb- itances by wi'its of prohibition from the tem- poral courts. Whitgift, as tenacious of power as the most amiiitions of his prede- cessors, murmured liUc^ them at this subor- dination, for such it evidently was, to a lay tribunal. § But the judges, who found as * Strype's Anuals, iii., 186, 192. Compare Ap- pend., 3.5. t Strype's Whitgift 1279. Amials, i., 543. t Pari. Hist., 921. § Stiype's Whitsift, ■'j21, 537. App., 130. The archbishop coukl not dissruise his dislike to the law- yers. " The temporal lawyer," he says in a let- ter to Cecil, "whose learning is no learning any j where but here at home, being bom to nothing, doth | much gi-atification in exerting their power as the bishops, paid little regard to the re- monstrances of the latter. "We find tlio law reports of this and the succeeding nugn full of cases of prohibitions. Nor did other abuses imputed to these obnoxious judica- tures fail to provoke censure, such as the unreasonable fees of their officers, and the usage of granting licenses, and connnuting penances for money.* The ecclesiastical courts, indeed, liave generally been reck- oned more dilatory, vexatious, and expens- ive than those of the common law. But in the present age, that i)art of their juris- diction, which, though coercive, is ])rofess- edly spiritual, and wherein the greatest abuses have been alleged to exist, has gone verj- 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 jus- tice is concerned ; though in the latter of these, a most inconvenient division of juiis- dictions, 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 troub- le and needless expense. [1827.] Notwithstanding the tendency toward Puritanism which the House of , Connnons generally (iisplayed, ents liable to the court succeeded in procuring an act, which eventually pressed with very great severity u|)on that class. This pass- ed in 1393, and enacted the penalty of im- prisonment against any person above the age of sixteen, who should forbear for the space of a month to repair to some church, imtil he should make such open submission and declaration of conformity as the act ap- points. Those who refused to submit to hy his labor and travel in that barbaraas knowl- edge purcliase to himself and his heirs forever a thousand pounds per annum, and oftentimes much more, whereof there are at this day many exam- pies.' — P. 215. * Stiype's Whitgift and D'Ewes, passim. In a convocation held during Grindal's sequestration (1580), i)roposals for reforming certain abuses in the spiritual courts were considered, hut nothing was done in it. — Strype's Grindal. p. 259, and Append., p. 97. And in 1594, a commission to in- (juire into abuses in the spiritual courts was is- sued; but whether this were intended bona fide j or not, it produced no refonuation. — Strype's Whit- 1 gift, 419. Eliz. — Puritans.] FKOM HENRY VII. TO GEORGE II. 129 these conditions were to abjure the realm, and if they should return without the queen's license, to suffer death as felons.* As this, on the one hand, like so many foi'mer stat- utes, helped to crush the vuifoitunate adhe- rents to the Romish faith, so, too, did it bear an obvious application to such Protes- tant sectaries as had professedly separated from the Anglican Church. But it is here worthy of remark, that the Puritan minis- ters throughout this reign disclaimed the imputation of schism, and acknowledged the lawfulness of continuing in the estab- lished Church, while they demanded a fur- ther reformation of her discipline. f The real separatists, who were also a numerous body, were denominated Brownist or Bar- rowists, from the names of their founders, afterward lost in the more general appella- tion of Independents. These went far be- yond the Puritans in their aversion to the legal ministry, and were deemed, in conse- quence, still more proper subjects for per- secution. Multitudes of them fled to Hol- land from the rigor of the bishops in enforc- ing this statute. t But two of this persua- sion, Barrow and Greenwood, experienced a still severer fate. They were indicted on that perilous law of the 23d of the queen, mentioned in the last chapter, for spreading * 35 Eliz., c. 1. Pari. Hist., 863. t Neal asserts in his summary of the controver- sy, as it stood in this reig7i, that the Puritans did not object to the office of bishop, provided he was only the head of the presbyters, and acted in con- junction with them, p. 398. But thi.s was, in ef- fect, to demand every thing ; for if tlie office could be so far lowered in eminence, there were many waiting to clip the temporal revenues and dignity in proportion. In another passage, Neal states clearly, if not quite fairly, the main points of difference between the Churcli and non-coufonning parties under Ehz- abeth, p. 147. He concludes with the following re- mark, which is very tvae : " Both parties agreed too well in asserting the necessity of a uniformity of public worship, and of calling in the sword of the magistrate for the support and defense of the several principles which they made an ill use of in their turns, as they could grasp the power into their hands. Tlie standard of uniformity, accord- ing to tlie bishops, was the queen's supremacy and the laws of the land ; according to the Puritans, the decrees of provincial and national synods, al- lowed and enforced by the civil magistrate ; but neiUier party were for admitting that liberty of conscience and freedom of profession which is ev- ery man's right, as far as is consistent with the peace of the government he lives under." t Neal, 253, 386. I seditious writings, and executed at Bury. They died, Neal tells us, with such expres- sions of piety and loyalty, that Elizabeth regretted the consent she had given to their deaths.* But, while these scenes of pride and per- secution on one hand, and of sectai'ian inso- lence on the other, were deforming the bo- som of the English Church, she found a de- fender of her institutions in one who min- gled in these vulgar controversies like a knight of romance among caitiff brawlers, with arms of finer tem[)er and worthy to be proved in a nobler field. Richard Hook- er, master of the Temple, published the first four books of his Ecclesias- Hooker's Ec- tical Polity in 1594 ; the fifth p^f.'^y f^;'^' three years aftei'ward ; and, dy- character, ing in 1600, left behind three which did not see the light till 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 and 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 pow- er which was about to develop itself with such unmatchable energy in Shakspeare and Bacon. We can not, 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 eloquence. So state- ly and graceful is the march of his periods, so various the fall of his musical cadences * Stiype's Whitgift, 414. Neal, 373. Several years before, in 1583, two men called Anabaptists, Thacker and Copping, were hanged at the same place on the same statute for denying the queen's ecclesiastical supremacy ; tlie proof of which was their dispersion of Brown's tracts, wherein that was only owned in civil cases. — Strype's Annals, iii., 186. Tliis was according to the invariable practice of Tudor times ; an oppressive and san- guinary statute was first made ; and next, as occa- sion might serve, a construction was put on it con- tJ-ary to all common sense, in order to take away men's lives. 130 CONSTITUTIONAL HISTORY OF ENGLAND [Chap. IV. upon the ear, so rich in images, so condens- ed in sentences, so grave and noble his dic- tion, so little is there of vulgarity in his ra- cy idiom, of pedantry in his learned 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 book of the Ecclesiastical Polity with what bears, perhaps, most resemblance to it of any thing extant, the treatise of Cicero de Legibus, it will appear some- what perhaps inferior, through the imper- fection of our language, 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 reas- onings, but by no means less high-toned in sentiment, or less bright in fancy, and fai" 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 Script- ures. A pious reverence for the sacred writings, which they made almost their ex- clusive study, had degenerated into veiy narrow views on the gi-eat themes of natu- ral religion and the moral law, as deducible from reason and sentiment. These, as most of the various families of their de- scendants continue to do, they greatly slight- ed, or even ti'eated as tlie mere chimeras of heathen philosophy. If they looked to the Mosaic law as the standard 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 im- mutable rule for the discipline of the Christ- ian Church.* To encounter these adver- saries. Hooker took a far more original * "The discipline of Christ's Church," said Cart- wright, " that is necessaiy for all times, is deliver- ed by Christ, and set down in the Holy Scriptures. Therefore the tnie and lawful discipline is to be fetched from thence, and from tlience alone ; and that which resteth upon any other foundation ought to be esteemed unlawful and counterfeit." Whit- gift, in his answer to Cartwright's Admonition, rested the controversy in the main, as Hooker did, on the indifferency of Church discipline and cere- mony. It was not till afterwai-d that the defenders of the established order found out that one claim of divine right was best met by another. course than the ordinary conti'overtists, who fought their battles with conflicting in- terpretations of scriptural texts or passages from the fathers. He inquired into the na- ture and foundation of law itself, as the rule of operation to all created beings, yielding thereto obedience by unconscious necessity, or sensitive appetite, or reasonable choice; reviewing especially those laws that regu- late human agency, as they arise out of moral relations, common to our species, or the institutions of politic societies, or the intercommunity of independent nations ; and having thoroughly established the fun- damental distinction between laws natural and positive, eternal and temporally, immu- table and variable, he came, with all this strength of moial philosophy, to discrimi- nate by the same criterion the various rvdea and precepts contiiined in the Scriptures. It was a kind of maxim among the Puri- tans, tliat Scripture was so much the ex- clusive rule of human actions, that whatev- er, 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 aftenvard to attack its application more particularly to the episcopal scheme of church govern- ment, and to the various ceremonies or usages which those sectaries ti-eated as either absolutely superstitious, or at least as impositions without authority. It was maintained by this gi-eat writer, not only that ritual observances are variable accord- ing to the discretion of ecclesiastical rulers, but that no certain form of polity is set down in Scripture as generally indispensa- ble for a Christian church. Far, however, from conceding to his antagonists the fact which they assumed, he contended for epis- copacy as an apostolical institution, and al- ways preferable, when circumstances would allow its preservation, to the more demo- cratical model of the Calviuistic congi'ega- tions. " If we did seek," he says, •' to maintain that which most advantageth our own cause, the veiy best way for us and the strongest against them were to liold, 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 veiy cause belongeth to all churches at all times. But with any Eliz. — Puritans.] FROM HENRY VII. TO GEORGE II. 131 such partial eye to respect oui-selves, and by cunning to make those things seem the truest, which are the fittest to sei-ve our purpose, is a thing which we neither hke nor mean to follow." The richness of Hooker's eloquence is chiefly displayed in his first book, beyond which, perhaps, few who want a taste for ecclesiastical reading are likely to proceed. The second and third, however, though less brilliant, are not inferior in the force and comprehensiveness of reasoning. The eighth and last returns to the subject of civil government, and expands, with remark- able 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 questions mooted between the Chm-ch 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 ex- empt from that abusive insolence to which polemical wi'iters were then even more prone than at present, yet he has not alto- gether the terseness or lucidity which long habits of literary warfare, and perhaps a natural turn of mind, have given to some expert dialecticians. In respect of lan- guage, the three posthumous books, partly from having never received the author's last touches, and partly, pei-haps, from his weariness of the labor, are beyond compari- son less elegantly written than the preced- ing. The better parts of the Ecclesiastical Polity bear a resemblance to the philosoph- ical -writings of antiquity, in their defects as well as their excellences. Hooker is often loo vague in the use of general terms, too inconsiderate in the admission of principles, too apt to acquiesce in the scholastic pseudo- philosophy, and, indeed, in all received ten- ets; he is comprehensive rather than saga- cious, 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 impeded, like many other great men of that and the succeeding centuiy, by too much acquaintance with books, and too much deference for their au- thors. It may be justly objected to some passages, that they elevate ecclesiastical authority, even in matters of belief, with an exaggeration not easily reconciled to the Protestant right of private judgment, and even of dangerous consequence in those times — as when he inclines to give a deci- sive voice in theological controversies to gen- eral councils ; not, indeed, on the principles of the Church of Rome, but on such as must end in the same conclusion, the high probability that the aggi-egate judgment of many gi-ave and learned men should be well founded.* Nor would it be difficult to point out several other subjects, such as re- ligious toleration, as to which he did not emancipate himself from the ti-ammels of prejudice. But, whatever may be the im- perfections of his Ecclesiastical Polity, they are far more than compensated by its elo- quence and its reasoning, and above all, by that deep pervading sense of the relation between man and his Creator, as the groundwork of all eternal law, which ren- dered the first book of this work a ramjiart, on the one hand, against the Puritan school, who shunned the light of nature as a deceit- ful meteor, and, on the other, against that immoral philosophy which, displayed in tlie dark precepts of Machiavel, or lurking in the desultory sallies of Montaigne, and not always rejected by writers of more appa- rent seriousness, threatened to destroy the sense of inti-insic distinctions in the quality of actions, and to convert the maxims of * " If the natural strength of men's writ may by experience and study attain uuto such ripeness in the knowledge of things human, tliat men in this respect may presume to build somewhat upon their judgment, what reason have we to think but that even in matters divine, the like wits, furnish- ed with necessary helps, exercised in Scripture with like diligence, and assisted with the gi-ace of Almighty God, may grow unto so much perfection of knowledge, that men shall have just cause, when any thing pertinent unto faith and religion is doubted of, the more willingly to incline their minds toward that which the sentence of so grave, wise, and learned in that faculty shall judge most sound ? For the controversy is of the weight of such men's judgment," &c. But Hooker's mis- take was to exaggerate the weight of such men's judgment, and not to allow enough for their pas- sions and infirmities, the imperfection of their knowledge, their connivance with power, their at- tachment to names and persons, and all the other drawbacks to ecclesiastical authority. It is well known that the preface to the Ecclesi- astical Polity was one of the two books to which James II. ascribed his return into the fold of Rome, and it is not difficult to perceive by what course of reasoning on the positions it contains this waa effected. / 132 COXSTITUTIONAL HISTORY OF ENGLAND [Chap. IV. state-craft and dissembling policy into the rule of life and manners. Nothing, perhaps, is more stinking 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 sub- jects, his theory absolutely coincides with that of Locke. The origin of government, both in right and in fact, he explicitly derives from a primary conti'act, " without which consent, there were no reason that one should take upon him to be lord or judge over another; because, although there be, according to the opinion of some very gi-eat and judicious men, a kind of natural right in the noble, wise, and virtuous, to govern them which are of servile disposition, nev- ertheless, for manifestation of this their right, and men's more peaceable content- ment on both sides, the assent of them who are to be governed seemeth necessary." " The lawful power," he observes else- where, " of making laws to command whole politic societies of men, belongeth so prop- erly unto the same entire societies, that for any prince or potentate, of what kind soev- er, upon earth to exercise the same of him- self, 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 tyr- anny. Laws they are not, therefore, which public approbation hath not made so. But approbation not only they give who person- ally 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 person- ally ourselves present, not\vithstanding 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 our- selves had done it in person." And in an- other place still more peremptorily : " Of this thing no man doubteth, namely, that in all societies, companies, and corporations, what severally each shall be boimd 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 observing that which he never did either by himself or others mediately or immediately agree unto." These notions respecting the basis of po- litical 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 rumor, very sedulously prop- agated soon after the time of its publication, and still sometimes repeated, that the post- humous portion of his work had been in- terpolated or altered by the Puritans.* For this surmise, however, I am persuaded that there is no foundation. The three latter books are doubtless imperfect, and it is pos- sible that verbal changes may have been made by their ti'anscribers or editors ; but the testimony that has been brought forward to throw a doubt over their authenticity con- sists in those vague and self-contradictory * In the life of Hooker prefixed to the edition I use, fol., 1671, I find an assertion of Dr. Barnard, chaplain to Usher, that be had seen a manuscript of the last books of Hooker, containing many things omitted in the printed volume. One passage is quoted, and seems in Hooker's stj-le. But the question is rather with respect to interpolations than omissions. And of the former I see no evi- dence or likeUhood. If it he true, as is alleged, that different manuscripts of the three last hooka did not agree — if even these disagreements were the result of fraud, why should we conclude that they were corrupted by the Puritans rather than the Church ? In Zouch's edition of Walton's Life of Hooker, the reader will find a long and ill-di- gested note on this subject, the result of which has been to convince me, that there is no reason to be- lieve any other than verbal changes to have been made in the loose draught which the author left, but that whatever changes were made, it does not appear that the manuscript was ever in the hands of the Puritans. The strongest probabiIit3-, how- ever, of their authenticity is from internal evidence. [But it has been proved by Mr. Keble, the last editor of the Ecclesiastical PoUty, that the sixth, book, as we now possess it, though written by Hooker, did not belong to this work, and, conse- quently, that the real sixth book has been lost. 1841.] A late writer has produced a somewhat ridicu- lous proof of the carelessness with wliich all edi- tions of the Ecclesiastical Polity have been print- ed ; a sentence having slipped into the text of the seventh book, which makes nonsense, and which he very probably conjectures to have been a mar- ginal memorandum of the author for his own uso on revising the manQscript. — M'Crie's Life of Mel- vil, vol. i., p. 471. [But it seems, on the whole, a more plausible conjecture, that the memorandum was by one of those who, after Hooker's death, had the manuscript to revise. 1841.] Eliz. — Paritans.] FROM HENRY VII. TO GEORGE II. 133 Stories, wliich gossiping compilers of litera- ry anecdote can easily accumulate ; while the inti'insic evidence arising from the work itself, on which, in this branch of criticism, I am apt chiefly to rely, seems altogether to repel ev ery suspicion ; for not only the principles of civil government, presented in a more e.xpanded form by Hooker in the eighth book, are precisely what he laid down in the first, but there is a peculiar chain of consecutive reasoning running through it, wherein it would be difficult to point out any passages that could be reject- ed without dismembering the context. It was his business, in this part of the Eccle- siastical Polity, to vindicate the queen's su- premacy over the Chm-ch. 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 Chuixh, so far as the laity partook in its government, by choice of pastors or otherwise, was unde- niably democratical, he labored to show, through the medium of the original com- pact 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 interpi'eted, as if they did receive their force from power which the prince doth communicate unto the Par- liament, or unto any other court under him, but from power which the whole body of the realm being naturally possessed 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 obvious 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 incompatible 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 satisfactoiy and important to remark the views which this gi-eat writer entertained of our own Constitution, to which he fre- quently and fearlessly appeals, as the stand- ing illustration of a government restrained by law. " I can not 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 pro- ceedings the law itself is a rule. The ax- ioms of our regal government are these : ' Lex facit regem' — the king's gi'ant of any favor made contrary to the law is void ; 'Rex nihil potest nisi quod jure potest' — what power the king hath, he hath 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 hav- ing bound himself to use according to law that power, it so falleth out, that the execu- tion of the one is accomplished by the oth- er." These doctrines of limited monarchy recur perpetually in the eighth book ; and though Hooker, as may be supposed, 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 gi-anted, unless where it es- cheats to them, yet he positively lays it down, that usurpers of power, that is, law- ful rulers arrogating more than the law gives to them, can not, in conscience, bind any man to obedience. It would, perhaps, have been a deviation from my subject to enlarge so much on these political principles in a writer of any later age, when they had been openly sustained in the councils of the nation. But as the reigns of the Tudor family were so inau- spicious to liberty that some have been apt to imagine its recollection to have been al- most eflaced, 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 contrary to the fundamental laws of the English Common- wealth. Nor would such sentiments, we may surely presume, have been avowed by a man of singular humility, and whom we 131 CONSTITUTIONAL HISTORY OF ENGLAND [Chap. IV. might charge with somewhat of an excess- ive deference to authority, unless they had obtained more currency, both among divines and lawyers, than the complaisance of court- iers in these two professions might lead us to conclude ; Hooker being not prone to deal in paradoxes, nor to borrow from his ad- versai'ies that sturdy republicanism of the school of Geneva which had been their scandal. I can not, 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 au- thenticity, however called in question, has been better preserved by the circumstance of a posthumous publication than if he had lived to give it to the world. Whitgift would probably have induced him to sup- press a few passages incompatible with the servile theories akeady in vogue. It is far more usual that an author's genuine senti- ments are peneited by means of his friends and patrons than of his adversai-ies. The prelates of the English Church, _ ,. , while they inflicted so many se- Spouation of -' •' Church rev- verities on Others, had not always cause to exult in their own con- dition. From the time when Henry taught his courtiers to revel in the spoil of monas- teries, there had been a perpetual appetite for ecclesiastical possessions. Endowed by a prodigal superstition with pomp and wealth beyond aU reasonable measure, and far beyond what the new system of religion appeared to prescribe, the Church of Eng- land still excited the covetousness of the powerful and the scandal of the austere.* 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 consciousness that the goods of their church were speedily to pass into the hands of heretics. f Hence the alienation of their estates had gone so far, * The Puritans objected" to the title of lord bish- op. Sampson wrote a peevish letter to Grindal on this, and received a verj- good answer. Strype's Parker, Append., 178. Parker, in a letter to Ce- cil, defends it on the best ground ; that the bish- ops bold theii- lands by barony, and therefore the giving them the title of lords was no irregularity, and nothing more than a consequence of the ten- tire. — Collier, 544. This will not cover our modem colonial bishops, on some of whom the same title has, without any good reason, been conferred. t Strype's Annals, i., 159. that in the beginning of Elizabeth's reign statutes were made, disabling ecclesiastical proprietors from gi-anting away their lands, except on leases for three lives, or twenty- one years.* But an unfortunate resena- tion was introduced in favor 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 disinterest- edness 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 suiTounded his mansion-house at Burleigh with estates once belonging to the see of Peterborough. Thus Hatton buUt 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, f This bishop, in conse- quence of such vexations, was desirous of retiring from the see before his death. Af- ter that event, Elizabeth kept it vacant eigh- teen years. During this period we have a petition to her from Lord-keeper Pucker- ing, 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. t These ti'ansactions denote the mer- cenary and rapacious spiiit which leavened almost all Elizabeth's couitiei-s. The bishops of this reign do not appear, with some distinguished exceptions, to have reflected so much honor on the Established Church as those who attach a superstitious reverence to the age of the Refonnation * 1 Eliz., c. 19; 13 Eliz.. c. 10. Blackstone's Commentaries, vol. ii., c. 28. The exception in favor of the crown was repealed in the first year of James. t It was couched in the following terms : " Proud Prelate, " You know what you were before I made you what you are : if you do not immediately comply with my request, by G — I will unfrock you. " Elizabeth." Poor Cox wrote a very good letter before this, printed in Strj-pe's Annals, vol. ii.. Append., 84. The names of Hatton Garden and Ely Place (Man- tua vae miserae niminm vicina Cremonae) still bear witness to the encroaching lord-keeper and the el- bowed bishop. t Strj-pe, iv., 246. See, also, p. 15 of the same volume. By an act in the first year of James, c. 3, conveyances of bishops' lands to the crown are made void; a concession much to the king's honor. E LIZ.— Puritans.] FROM HENRY VII. TO GEORGE II. 135 are apt to conceive. In the plunder that went forward, they took good care of them- selves. Chai'ges against them of siraony, corruption, covetousness, and especially de- struction of their church estates for the benefit of their families, are very common — sometimes, no doubt, unjust, but too fre- quent to be absolutely without foundation.* The council often wrote to them, as well as concerning them, with a sort of asperity which would astonish one of their success- ors. And the queen never resti'ained hei"- self in treating them on any provocation with a good deal of rudeness, of which I have just mentioned an egregious example. f In her speech to Parliament on closing the session of 1584, when many complaints against the nilers of the Church had i-ung in her ears, she told the bishops that if they did not amend what was wrong, she meant to depose them ;t for there seems to have been no question in that age but that this might be done by virtue of the crown's supremr.^y. 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 moles- * Harrington's State of tlie Church, iu Nagas Antiquse, vol. ii., passim. Wilkins's ConciUa, iv., 256. Strype's Aunals, iii., 020, et alibi. Life of Parker, 454 ; of Whitgift, 220 ; of Aylmer, passim. Observe the preamble of 13 Eliz., c. 10. It mast be admitted, on the other hand, that the gentrj, when popishly or Puritanically affected, were apt to behave exceedingly ill toward the bishops. At Lambeth and FuUiam they were pretty safe ; but at a distance they found it hard to struggle with the rudeness and iniquity of the territorial aristoc- racy, as Sandys twice experienced. t Birch's Memoirs, i., 48. Elizabeth seeras to bave fancied herself entitled by her supremacy to dispose of bishops as she pleased, though they did not hold commissions durante bene placito, as in her brother's time. Thus she suspended Fletch- er, bishop of London, of her own authoiity, only for marrj-ing " a fine lady and a widow." — Strype's Whitgift, 453. And Aylmer having preached too vehemently against female vanity in dress, which came home to the queen's conscience, she told her ladies that if the bishop held more discourse on such matters, she would fit him for heaven ; but he should walk thither without a staff, and leave his mantle behind him. — Harrington's State of the Church, in Nugse Antiquas, i., 170 ; see, too, p. 217. It will, of course, not appear surprising, that Hut- ton, arclibishop of York, an exceedingly honest prelate, having preached a bold sermon before the queen, urging her to settle the succession, and pointing sti-ongly toward Scotland, received a sharp message, p. 250. t D'Ewes, 328. tation of the non-conforming clergy, their numbers were become greater, their popu- larity more deeply rooted, their enmity to the established order more irreconcilable. It was doubtless a problem of no slight dif- ficulty, by what means so obstinate and opiniated 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 pohcy 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 entertain 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 Walsing- ham judged more sagaciously than Whit- gift 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 possi- ble of their accustomed rites. But in the latter period of the queen's reign, this poli- cy had lost a great deal of its application ; or, rather, the same principle 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 of the spiritual courts ; by abandoning a pait of their juris- diction, so heterogeneous and so unduly ob- tained ; by abrogating obnoxious, and, at best, fi-ivolous ceremonies ; by restraining pluralities of benefices ; by ceasing to dis- countenance the most diligent ministers, and by more temper and disinterestedness in their own behavior, the bishops would have palliated, to an indefinite degree, that dissatisfaction with the established scheme * Collier says, p. 586, on Heylin's authority, that Walsingham offered the Puritans, about 1583, in the queen's name, to give up the ceremony of kneeling at the communion, the cross iu baptism, and the surphce ; but that they answered, " ne ungulam quidem esse relinquendam." But I am not aware of any better testimony to the fact ; and it is by no means agreeable to the queen's gener- al conduct. 136 COXSTITUTIONAL HISTORY OF ENGLAND [Chap. IV. of polity, which its want of resemblance to [ that of other Protestant churches must more or less have produced. Such a ref- j ormation would at least have contented those reasonable 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 General 1 have used in this chapter can not remarks, jjg pleasing to such as have sworn allegiance to either the Anglican or the Pu- ritan pai'tj' ; and that even candid and lib- eral minds may be inclined to suspect that I have not sufficiently admitted the excess- es of one side to furnish an excuse for those of the other. Such readers I would gladly refer to Lord Bacon's Advertisement touch- ing the Controversies of the Church of Eng- land ; 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 eveiy respect with the views it displays. If he censures the pride and obstinacy of the Puritan teach- ers, their indecent and libelous style of wi'iting, their affected imitation of foreign churches, their extravagance of receding from every thing formerly practiced, he animadverts with no less plainness on the faults of the Episcopal party, on the bad example of some prelates, on their peevish opposition to every improvement, theii- un- just accusations, their contempt of foreign churches, their persecuting spirit.* Yet that we may not deprive this gi-eat Letter of queen's administration, in what Waisingham concerned her dealings with the in defense of ... . ' , the queen's two religious parties opposed to government, t^jg Established Church, of what vindication may best be offered for it, I will refer the reader to a letter of Sir Francis * Bacon, ii., 375. See, also, another paper con- cemiug the pacification of the Church, written un- der James, p. 387. "The wrongs," ho says, "of tliose wliich are possessed of the government of the Church toward the other, may hardly be dissem- bled or excused," p. 382. Yet Bacon was never charged with affection for the Puritans. In truth, Elizabeth and James were personally the great support of the high church interest ; it had few real frieuds among their counselors. Waisingham, written to a person in France after the year 1580.* It is a very able apol- ogy for her government; and if the reader should detect, as he doubtless may, some- what of sophistry in reasoning, and of mis- statement in matter of fact, he will ascribe both one and the other to the narrow spirit of the age ^^^th respect to civil and religious freedom, or to the circumstances of the writer, an advocate whose sovereign was his client. * Burnet, ii., 418. Cabala, part ii., 38 (4to e-pe's Whitgift. 222, and Append.. 94. The archbishop exercised his power over the press, as may be supposed, with little moderation. Not confining himself to the suppression of books favor- ing the two parties adverse to the Church, he per- mitted nothing to appear that interfered in the least with his own notions. Thus we find him seizing an edition of some woi'ks of Hugh Brough- ton, an eminent Hebrew scholar. This learned di- vine differed from Whitgift about Christ's descent to hell. It is amusing to read that ultimately the primate came over to Broughton's opinion ; which, if it prove some degree of candor, is also a glaring evidence of the advantages of that free inquiry he 1 had sought to suppress.— P. 384, 431. ELlz.-Goveniment.J FROM HENRY VII. TO GEORGE II. 143 a prostrate nation without the intei-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 abandonment 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 ti-ial is by juiy, than where the right of decision resides in the judge. But it is of high importance to watch with extreme jealousy the disposition, toward which most governments are prone, to in- troduce 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 jm-is- diction was considered as of a military na- ture, and whose proceedings were not ac- cording to the course of the common law, sometimes ti'ied offenders by Avhat was caUed martial law, but only, I believe, ei- ther dming, or not long after, a serious re- bellion. This tribunal fell into disuse under the Tudors. But Mai-y had executed some of those taken in Wyatt's insuiTection with- out regular process, though their leader had his ti'ial by a juiy. Elizabeth, always hasty in passion and quick to punish, would have resorted to this summary course on a slight- er occasion. One Peter Burchell, a fanati- cal Puritan, and perhaps insane, conceiving that Sir Christopher Hatton Avas an enemy to true religion, determined 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 ti-ied 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 * Camden, 449. Sh-ype's Aimals, ii., 288. The queen had been told, it seems, of vphat was done in Wyatt's business, a case not at all parallel ; though there was no sufficient necessity even in that instance to justify the x'roceeding by martial law. But bad precedents always beget "progeni- em vitiosiorein." There was a difficulty how to punish Borchell capitally, which probably suggested to the queen proclamation some years afterward, declar- ing that such as brought into the kingdom or dispersed papal bulls, or ti-aitorous libels against the queen, should with all severity be proceeded against by her majesty's lieu- tenants 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 any thing to be done or executed in the punishment of any such offender, according to the said martial law, and the tenor of this proclamation, any law or statute to the contrary in any wise not- withstanding.* 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 efl'ect a landing upon our coasts ; and prospectively to a crisis, when the nation, struggling for life against an in- vader's grasp, could not afford the protec- tion of law to domestic ti-aitors. But it is an unhappy consequence of all deviations from the even course of law, that the forced acts of over-ruling necessity come to be dis- torted into precedents to serve the purpo- ses of arbitrary power. No oth- c T^i- 1 ^1 , Martiallaw. er measure oi JLlizabeth s reign can be compared, in point of violence and illegality, to a commission in July, 1595, di- rected to Sir Thomas Wilford, whereby, upon no other allegation than that there had been of late " sundry great unlawful assem- blies of a number of base people in riotous sort, both in the city of London and the suburbs, for the suppression whereof (for that the insolency of many desperate of- fenders is such, that they care not for any ordinary punishment by imprisonment) it was found necessary to have some such not- able rebellious persons to be speedily sup- pressed by execution to death, according to the justice of martial law," he is appointed provost-marshal, with authority, on notice this strange expedient. It is said, which is full as strange, that the bishops were about to pass sen- tence on liim for heresy, in having asserted that a papist might lawfully be killed. He put an end, however, to this dilemma, by cleaving the skul] of one of the keepers in the Tower, and was hanged in a common way. * Stiype's Annals, iii., 570. Life of ^^nlitgift, Append., 12C. 144 COXSTITUTIONAL HISTORY OF ENGLAND [Chap. V by the magisti'ates, to attach and seize such notable rebeUious and incomgible 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 high-ways near to the city, which any vagrant persons do haunt, and, with the assistance of justices and consta- bles, to apprehend all such vagrant and sus- pected persons, and them to deliver to the said justices, by them to be committed and examined of the causes of their wandering, and finding them notoriously culpable in then* unlawful manner of life, as incorrigi- ble, 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 ad- judged and condemned to death for former offenses, and had the queen's pardon for the same."* This peremptory style of superseding the common law was a sti'etch of prerogative without an adequate parallel, so far as I know, in any foi'mer period. It is to be re- marked, that no tumults had taken place of any political character or of serious import- ance, some riotous Jipprentices only having committed a few disorders. f But rather more than usual suspicion had been excited about the same time by the intrigues of the Jesuits in favor of Spain, and the queen's advanced age had begun to renew men's doubts as to the succession. The rapid in- crease of London gave evident uneasiness, as the proclamations against new buildings show, to a very cautious administi'ation, en- vironed by bold and inveterate enemies, and entirely destitute of regular troops to with- stand a sudden insuirection. Circumstan- ces of which we are ignorant, I do not question, gave rise to this exti-aordinary commission. The executive goverament in modern times has been invested with a degi'ee of coercive power to maintain obe- dience, of which our ancestors, in the most arbiti'ary reigns, had no practical experi- ence. If we reflect upon the multitude of statutes enacted since the days of Elizabeth in order to resti'ain and suppress disorder, and, above aU, on the prompt and certain aid that a disciplined army affords to our * Kj mer, xvi., 279. t Carte, 693, from Stowe. civil authorities, we may be inclined to think that it was rather the weakness than the vigor of her government which led to its in- quisitorial watchfulness and harsh measures of prevention. We find in an earlier part of her reign an act of state somewhat of the same charactei-, though not perhaps il- legal. Letters were written to the sheriffs and justices of divers counties in 1.569, di- recting 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 per- sons were thus apprehended, chiefly in the north, which, as Strype says, very much broke the rebellion attempted in that year.* Amid so many infringements of the free- dom of commerce, and with so precarious an enjoyment of personal liberty, the Eng- lish subject continued to pride himself in his immunity from taxation without consent of Parliament. This privilege he had as- serted, though not with constant success, against the rapacity of Henry VII. and the violence of his son. Nor was it ever dispu- ted in theory by Elizabeth. She retained, indeed, notwithstanding the complaints of the merchants at her accession, a custom upon cloths, arbiti-arily imposed by her sis- ter, and laid one herself upon sweet wines. But she made no attempt at levying inter- nal taxes, except that the clergy were call- ed upon, in 1586, for an aid not gi-anted in convocation, but assessed by the archdeacon according to the value of their benefices, to which they naturally showed no little re- luctance.f By dint of singular frugality, * Strype's Annals, i., 53-5. t Strj pe, iii.. Append., 147. This was exacted in order to raise men for service in the Low Coaa- ti-ies. Bat the beneficed clergy were always boimd to furnish horses and armor, or their value, for the defense of the kingdom iu peril of invasion or rebellion. An instance of their being called on for such a continsrent occuiTed iu 1569. — Strype's Parker, 273 ; and Rj-mer will supply many others in earlier times. The magristi-atcs of Cheshire and Lancashire had imposed a cliarge of eishtpence a week on each parish of those counties for the maintenance of recusants in custody. This, though very near- ly borne out by the letter of a recent statute, 14th Eliz., c. 5, was conceived by the inhabitants to be against law. We have, in Strype's Annals, vol. iii.. Append., 56, a letter from the privy-council, di- recting the charge to be taken oft'. It is only worth E LIZ.— Government.] FUOM HENRY VII. TO GEORGE 11. 145 she continued to steer the true cour.se, so as to keep lier popularity undiminished and her prerogative unimpaired, asking veiy lit- tle 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 for- eign war and a rebellion in Ireland, joined to a rapid depreciation in the value of mon- ey, rendered her demands somewhat high- er. But she did not abstain from the an- cient practice of sending privy-seals to bor- row money of the wealthy. These were not considered as illegal, though plainly for- bidden by the statute of Richard III. ; for it was the fashion to set aside the authori- ty of that act, as having been passed by a Loans of usurper. It is impossible to doubt quite vol-' ^^^'"^^ ^""^'^ loans Were so far ob- uutary. tained by compulsion, that any gentleman or citizen of sufficient ability refusing compliance would have discovered that it were far better to part with his mon- ey 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 refus- ing to pay the money demanded of them.* But the queen seems to have been punctu- al in their speedy repayment according to noticing, as it illustrates the jealousy which the people entertained of any thing approaching to taxation without consent of Parliament, and the caution of the ministiy in not pushing any exertion of prerogative further than would readily be en- dured. * Murden, 632. That some degi-ee of intimida- tion was occasionally made use of, may be infeiTed from the following letter of Sir Hemy Cholmley to the mayor and aldermen of Cliester, in 1597. He informs them of letters received by him from tlie council, ■' whereby I am commanded in all haste to require you that you and every of you send in your several sums of money unto Torpley (Tarpor- ly) on Friday next, the 23d December, or else that yoa and evei-y 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 majestj-'s loan according to her highness's several privy-seals by you received, lettuig you wit tliat I am now di- rected by other letters from their lordships to pay over the said money to the use of her majesty, and to send and certify the said bonds so taken ; which praying you heaitily to consider of as the last di- rection of the service, I heartily bid you farewell." — Harl. MS3., 2173, 10. K 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 gi-acious words. And as Elizabeth incuired no debt till near the con- clusion of her reign, it is pi-obable that she never had borrowed 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 project of i-aising money by a general contribution or benevolence from persons of ability, without purpose of re- payment. This was also amid the difficul- ties of the year 15G9, when CecU, perhaps, might be afraid of meeting Parliament, on * Stiype, ii., 102. In Haj-nes, p. 5X8, is the foim of a circular letter or privy seal, as it was called from passing that office, sent in 1569, a year of gi-eat difficulty, to those of whose aid the queen stood in need. It contains a promise of repayment at tlie expiration of twelve months. A similar ap- plication was made through the lord-lieutenants in their several counties, to the wealthy and weU- disposed, in 1588, immediately after the destruc- tion of the Ai-mada. The loans are asked only for the space of a year, " as heretofore has been yield- ed unto her majesty in times of less need and dan- ger, and yet always fully repaid." — Sti-ype, iii., 535. Large sums of money are said to have been demanded of the citizens of London in 1599. — Carte, C75. It is perhaps to this year that we may refer a curious fact mentioned in Mr. Justice Hutton's judgment in the case of ship-money. " In the time of Clucen Elizabeth (he says), who was a gracious and a glorious queen, yet in the end of her reign, whether through covetousness, or by reason of the wars that came upon her, I know not by what counsel she desired benevolence, the stat- ute of 2d Richard III. was pressed, yet it went so far, that by commission and direction money waa gathered in eveiy iim 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 hack ; and so I (as all the rest of our house, and as I think of olher houses too) had my twenty sliiUings repaid me again; and privy counselors were sent down to all parts, to tell them that it was for the defense of the realm, and it should be repaid tliem again." —State Trials, iii., 1199. 146 CONSTITUTIONAL HISTORY OF ENGLAND [Chap. V. account of the factions leagued against him- self. But as nothing further was done in this matter, we must presume that he per- ceived the impracticability of so unconstitu- tional a scheme.* Those whose curiosity has led them Character of to somewhat more acquaintance uT'i^ld. '^vith the details of English his- mmistration. tory Under Elizabeth than the pages of Camden or Hiujie will afford, can not but have been struck with the perpetual interference of men in power with matters of private concern. I am far from pretend- ing to know how far the solicitations for a prime minister's aid and influeuce may ex- tend at present. Yet one may think that he would hardly be employed, like Cecil, where he had no personal connection, in reconciling 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.f They exhibit, however, collective- ly, 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 piying steward. We are told that the relaxation of this minister's mind was to study the state of England, and the * Haynes, 518. Hume has exaggerated this, like other facts, iu his very able, but partial sketch ■of the Constitution in EUzabeth"s reign. t The following are a few specimens, copied from the Lansdowne catalogue. " Sir Antony Cooke to Sir William Cecil, that he would move Mr. Petei-s to recommend Mr. Edward Stanhope to acertain younglady of Mr. P.'s acquaintance, whom Mr. Stanhope was desirous to many." — Jan. 25, 1563 ; Ixxi., 73. " Sir John Mason to Sir William Cecil, that he fears his young landlord, Spelman, has intentions of turning him out of his house, wliich will be disagreeable ; hopes, therefore. Sir William C. will speak in his behalf "—Feb. 4, 1566 ; Id., 74. "Lord Stafford to Lord Burleigh, to further a match between a certain rich citizen's daughter and his son;" he requests Lord B. to appoint the father to meet him (Lord Stafford) some day at his house, " where I will in few wonis make him so reasona- ble an offer as I trast he will not disallow."' — Ixviii., 20. '■■ Lady Zouch to Lord Burleigh, for his friend- ly intei-position to reconcile Lord Zouch her hus- band, who had forsaken her through jealousy." — 1593 ; Ixxiv., 72. 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 her- alds, and would often surprise persons of distinction at his table by appearing better acquainted with their manors, parks, and woods, than themselves.* Such knowl- edge 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 wliich is the usual Aveakness of a court. His failing was rather a bias toward suspicion and timiditj' : there were times, at least, in which his sti-ength of mind seems to have almost deserted hira, through sense of the perils of his sovereign and country. But those perils appear less to us, who know how the vessel outrode them, than thej' could do to one harassed by continual informations of those numer- ous spies whom he employed both at home and fibroad. The one word of Burleigh's policy was prevention ; and this was dicta- ted 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 gov- ernment that du'ects its chief attention to prevent offenses 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 prob- able that Elizabeth's administration carried too far, even as a matter of policy, thisprecau- tionaiy system, upon which they founded the penal code against popeiy ; and we may surely point to a contrast veiy advantageous to our modern Constitution, in the lenient treatment which the Jacobite faction expe- rienced fi-om the princes of the house of Hanover. She reigned, however, in a pe- riod of real difificulty and danger. At such seasons, few ministers will abstain from ar- bitrary actions, except those who are not strong enough to practice them. I have traced, in another work, the ac- quisition by the House of Com- Dj^p„3„i„„ mens of a practical right to in- oftheiiousa , 1 . .1 ofCommons. quu'e mto and advise upon the public administration of affairs, during the * Biographia Britamiica, ai-t. Cecil. JE HZ.— Government] FROM HENRY VII. TO GEORGE II. 147 r«igns of Edward III., Richard II., and the princes of the line of Lancaster. This en- ergy of Parliament was quelled by the civil wars of the fifteenth century ; and, what- ever may have pas.sed in debates within its walls that have not been preserved, did not often display itself in any overt act imder 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, ei- ther by law or petition to the crown, were their acknowledged constitutional privileges, which no sovereign or minister ever pre- tended to deny. For this end, liberty of speech and free access to the royal person were claimed by the speaker as customary privileges (though not quite, in his modern language, as undoubted rights) at the com- mencement of eveiy Parliament. But the House of Commons in Elizabeth's reign contained men of a bold and steady patriot- ism, well read in the laws and records of old time, sensible to the dangers of their countiy and abuses of government, and con- scious 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 oft- en asserted the victoiy, the latter some- times 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 arbitraiy and unconstitutional. If, in- deed, we are not mistaken in judging them according to the ancient law, they must have been viewed in the same light by cotem- poraries, who were full as able to tiy them by that standard. But, to repeat what I have once before said, the extant docurhents from which we draw our knowledge of Con- stitutional history under those reigns are so scanty, that instances even of a success- ful Parliamentary resistance to measures of the crown may have left no memorial. The debates of Pai-liament are not preserv- ed, and veiy little is to be gained from such histories as the age produced. The com- plete barrenness, indeed, of Elizabeth's chroniclers, Holingshed and Thin, as to ev- eiy Parliamentary or Constitutional infor- mation, speaks of itself the jealous tone of her administi'ation, Camden, writing to the next generation, though far from an in- genuous historian, is somewhat less under resti-aint. Tliis forced silence of history is much more to be suspected after the use of printing and the Reformation, 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 chronicles of the Middle Ages ; but far less of that deliberate mendacity, or of that insidious suppression, by which fear, and flattery, and hati*ed, 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 jour- nals, indeed, are partly lost ; nor would those which remain give us a sufficient in- sight 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 Par- liaments from 1580 to 1601, contains min- utes of the most interesting debates as weU as transactions, and for the first tiine ren- ders us acquainted with the names of those who swayed an English House of Com- mons.* There was no peril more alarming to this kingdom during the queen's reign Addresses than the precariousness of her life ^^he^uccef- — a thread whereon its ti-anquilli- sion. ty, if not its religion and independence, 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 limitations of the crown might be enacted, in failure of her issue. The former request she evaded without ever manifesting much displeasure, though not spai-ing a hint that it was a little beyond the province of Parliament. Upon the last occasion, indeed, that it was preferred, name- ly, 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 * Townsend's mauascript has been separately published ; but I do not find that D'Evpes has omit- ted any thing of consequence. 148 COXSTITUTIONAL HI: :STORY OF EXGI- fibetoUataadtotfaeemt. ItiBdacedtbeHoase to ill I Tail tbe txmfsnmee^—ljmls SammO^ S3d May. tlo^-JoKaafa^lfa^Sl. Cm— r Joaaafa. % Cane^iv., 23. Senile's aKfaanrial, than bkb- tUBed, was le^ in die Hoose^ Vmj 14. f Caite. ir, 14, aOL Bacm^ i, . CJ^4K3. James I.] FROM HEXllY VII. TO GEORGE II. 197 the days of intimidation were gone by. The House voted tliat they would first pro- ceed with the business of impositions, and postpone supply till their grievances should Dissolved be redressed.* Aware of the sinX"sin^e impossibility of conquering their act. resolution, the king carried his measure into effect by a dissolution. f They had sat about two months, and, what is perhaps unprecedented in our history, had not passed a single bill. James fol- lowed up this strong step by one still more vigorous. Several members, who had dis- tinguished themselves liy warm language against the government, were an-ested after the dissolution, and kept for a short time in custody ; a manifest violation of that free- dom of speech, without which no assembly can be independent, and wliich is the stipu- lated privilege of the House of Commons.t It was now evident that James could Benevolen- never cxpect to be on terms of ces. harmony with a Parliament un- less by surrendering pretensions which not only were in his eyes indispensable to the luster of his monarchy, but from which he derived an income that he had no means of replacing. He went on, accordingly, for six yeai's, supplying his exigencies by such precarious resources 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 be- lieve, enforced to their utmost extent, must have considerably enriched the Exchequer. It is said by Carte that some Dutch mer- chants paid fines to the amount of £133,000 for expoiting gold coin.§ But still gi-eater profit was hoped from the requisition of that more than half involuntaiy conti-ibu- tion, miscalled a benevolence. It began by a subscription of the nobility and principal persons about the couit. Letters were sent written to the sheriffs and magistrates, * C. J., 506. Carte, 23. This writer absurdly defends the prerogative of laymg impositions on mercliandise as part of the law of nations. t It is said that, previously to taking this step, the king sent for the Commons, and tore all their bills before their faces in the Banqueting House at Whitehall. — D israeli's Character of James, p. 158, on the authority of an unpublished letter. t Carte. Wilson. Camden's Annals of James I. (in Kennet, ii., 6-13). § Carte, iv., 56. directing them to call on people of ability. It had alwaj'S been supposed doubtful whether the statute of Richard III. abro- gating " exactions, called benevolences," should extend to voluntai-y gifts at the so- licitation of the crown. The language used in that act certainly implies that the pre- tended benevolences of Edward's reign had been extorted against the subjects' will; yet if positive violence were not employed, it seems difficult to find a legal criterion by which to distinguish the effects of willing loyalty from those of fear or shame. Lord Coke is said to have at first declared that the king could not solicit a benevolence from his subjects, but to have afterward re- tracted his opinion and pronounced in favor of its legality. To this second opinion he adheres in his Reports.* While this busi- ness Avas pending, Mr. Oliver St. John wrote a letter to the mayor of Marlborough, explaining his reasons for declining to con- tribute, foxmded on the several statutes which he deemed api)licable, and on the impropriety of particular men opposing their judgment to the Commons in Parlia- ment, who had refused to grant any subsi- dy. This argument, in itself exasperating, he followed up by somewhat blunt observa- tions on the king. His letter came under the consideration of the Star Chamber, where the offense having been severely descanted upon by the attorney-general, Mr. St. John was sentenced to a fine of c£5000, and to imprisonment during pleas- ure, f Coke, though still much at the council- board, was regarded with in- Prosecution creasing dislike on account of his of Peacham. uncompromising humor. This he had oc- casion 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 ti'eason. A ser- mon 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 invec- tives against the government, as, had they been published, would have amounted to a seditious libel. But common sense revolt- ed at construing it into ti'eason, under the statute of Edward III., as a compassing of * 12 Reports, 119. t State Trials, ii., 839. 198 COXSTITUTIOXAL HISTORY OF EXGI,AND [Chap. VL the king's death. James, however, took it up with indecent eagerness. Peacham was put to the rack, and examined upon various inteiTogatories, as it is expressed by Secre- tary Winwood, " before torture, in torture, betAveen torture, and after tortui-e." Noth- ing could be drawn from him as to any ac- comphces, nor any explanation of his design in writing the sermon, which was probably but an intemperate affusion, so common among the Puritan clergj'. It was neces- sary, therefore, to rely on this, as the overt act of treason. Aware of the difficulties that attended this course, the king directed Bacon pi-eviously to confer with the judges of the King's Bench, one by one, in order to secure their determination for the crown. Coke objected that " such pai'ticular, and, as he called it, auricular taking of opinions, was not according to the custom of this realm."* 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 majestj'. The chief-justice continued to maintain Ms objection to this separate closeting of judges ; yet, finding himself abandoned by his col- leagues, consented to give answers in writ- ing, which seem to have been merely eva- sive. Peachara was brought to trial, and found guiltj', but not executed, dying in prison a few months after.f It was not long before the intrepid chief- * There had, however, been iustances of it, as in Sir Walter Raleigh's case — Lodge, iii., 172, 173 ; and I have found proofs of it in the queen's reign, though I can not at present quote my author- ity. In a former age, the judges had refused to give an extra-judicial answer to the king. — Lin- gard, v., 382, from the year-book, Pasch. 1 H. 7, 15. Trin., 1. t State Trials, ii., 869. Bacon, ii., 483, ace. Dal- rjmple's Memorials of James I., vol. i., p. 56. Some other very unjustifiable constructions of the law of treason took place in this reign. Thomas Owen was indicted and found guiltj-, under the statute of Edward III., for saj-ing that " the king, being excommunicated (i. c, if he should be excommuni- cated) by the pope, might be lawfully deposed and killed by any one, which killing would not be mur- der, being the execution of the supreme sentence of the pope ;" a position verj- atrocious, but not amounting to treason — State Trials, ii., 879 ; and Williams, another papist, was convicted of treas- on by a still more violent stretch of law, for writ- ing a book predicting the king's death in the year 1621.— Id., 1085. justice incurred again the coun- Di.pote cil's displeasure. This will re- about the ju- /. . , risdiction of quu'e, tor the sake oi part of my the Court of readers, some little previous ex- thancery. planation. The equitable jurisdiction, as it is called, of the Court of Chanceiy ap- pears to have been derived from that extens- ive judicial power which, in early times, the king's ordinaiy council had exercised. The chancellor, as one of the highest offi- cers of state, took a great share in the coun- cil'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 un- ■ likely, therefore, that redress, in matters • beyond the legal province of the chancellor, j was occasionallj"^ given tlirough the para- j mount authority of this court. We find the ! council and the Chancery named together in many remonstrances of the Commons against this interference with private rights, from the time of Richard II. to that of Henry VI. It was probably in the former reign that the chancellor began to estab- lish systematically his peculiar 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 engagement to suf- fer another, called the cestui que use, to enjoy its use and possession. Such fidu- ciarj- estates were well known to the Roman jurists, but inconsistent with the feudal ge- nius of our law. The courts of justice gave no redress, if the feoffee to uses violated his trust by detaining the land. To renied}' this, an ecclesiastical chancellor devised the writ of subpoena, compelling him to answer upon oath as to his trust. It was evidently necessarj', also, to resti'ain him from pro- ceeding, as he might do, to obtain posses- sion ; and this gave rise to injunctions, thiit is, prohibitions to sue at law, the violation of which was punishable by imprisonment as a contempt of court. Other instances of breach of trust occuiTcd in personal con- tracts, and cases also wherein, without any ti-ust, there was a wrong committed beyond the competence of the comts of l-mer, xvii., 344. Pari. Hist. Carte, 93. Wilson. t Besides the historians, see Cabala, part ii., p. 155 (4to edit.) ; D israeli's Character of James I., p. 125; and Mede's Letters, Harl. MSS. 3S9. 212 CONSTITUTIONAL HISTORY OF ENGLAND [Chap. VL evident sign of the change that was at work in the spirit of the nation, and by which no rank could be wholly unaffected.* James, with all his reputed pusillanimity, Marriage never showed any signs of fearing treaty with popular opinion. His obstinate Spain. adherence to the marriage treaty with Spain was the height of political rash- ness in so critical a state of the public mind. But what with elevated notions of his pre- rogative and of his skill in government on the one hand, what with a confidence in the submissive loyalty of the English on the other, lie seems constantly to have fancied that all opposition proceeded from a small troublesome faction, whom if he could any way silence, the rest of his people would at once repose in a dutiful reliance on his wisdom. Hence he met every succeeding Parliament with as sanguine hopes as if he had suffered no disappointment in the last. The nation was, however, wrought up at this time to an alarming pitch of discontent. Libels were in circulation about 1621, so bitterly malignant in their censures of his person and administration, that two hund- red years might seem, as we read them, to * "Wilson's History of James I., in Kennet, ii., 247, 749. Thirty-three peers, Mr. Joseph Mede tells us in a letter of Feb. 24. 1621 (Harl. MSS., 369), " signed a petition to the king, which they refused to deliver to the council, as he desired, nor even to the prince, unless he would say he did not receive it as a counselor ; whereupon the king .sent for Lord Oxford, and asked him for it; he, ac- cording to previous agreement, said he had it not ; then he sent for another, who made the same an- swer : at last they told him they had resolved not to deliver it unless thej' were admitted all togeth- er ; whereupon his majesty, wonderfully incensed, sent them all away, re infectS, and said that he would come into Parliament himself, and bring them all to the har." This petition, I believe, did not relate to any general grievances, but to a question of their own privileges, as to their prece- dence of Scots peers. Wilson, ubi supra. But several of this large number were inspired by more generous sentiments ; and the commencement of an aristocratic opposition deserves to be noticed. In another letter, written in March, Mede speaks of the good understanding between the king and Parliament; he promised they should sit as long as they like, and hereafter he would have a Parlia- ment every three years. " Is not this good if it be true? .... But certain it is that the Lords stick wonderful fast to the Commons, and all take great Tise entertaining and sensible biographer of James has sketched the characters of these Whig peers. — Aikin's James I., ii., 233. have been mistaken in their date.* Heed- less, however, of this growing odium, James continued to solicit the affected coyness of the court of Madrid. The circumstances of that negotiation belong to general histo- ry.f It is only necessaiy to remind the reader that the king was induced during the residence of Prince Charles and the Duke * One of these may be fonnd in the Somers Tracts, ii., 470, entitled Tom TeU-truth, a most ma- hgnaut ebuUitiou of disloyalty, which the author must have risked his neck as well as ears in pub- lishing. Some outrageous reflections on the per- sonal character of the king could hardly be excelled by modem licentiousness. Proclamations about this time against excess of lavish speech in matters of state (Kymer, xvii., 275, 514), and against printing or uttering seditious and scandalous pamphlets (Id., 522, GIG), show the tone and temper of the nation. [See, also, the extracts from the reports of Til- lieres, the French ambassador, in Raumer's His- tory of the 16th and 17th Centmies illustrated, vol. ii., p. 24C, et alibi. Nothing can be more unfavor- able to James in every respect than these reports ; but his leaning toward Spanish connections might inspire some prejudice into a French diplomatist. At a considerably earlier period, 1606, if we may trust the French ambassador, the players brought forward "their own king and all his favorites in a verj' strange fashion. They made him curse and swear because he had been robbed of a bird, and beat a gentleman because he had called off the hounds from the scent. They represent him as drunk at least once a day, &c. He has, upon this, made order that no play shall be henceforth acted in London ; for the repeal of which order, they have already offered 100,000 Uvres. Perhaps the permission will be again granted, but upon condi- tion that they represent no recent historj-, nor speak of the present time." — Raimier, ii., 219. If such an order was ever issued, it was speedily repeal- ed, for there is no year to which new plays are not refeiTed by those who have written the historj- of our drama. But the offense which provoked it is extraordiuarv', and hardlj' credible ; though coming on the authority of a resident ambassador, we can not set it aside. The satire was of course con- veyed under the character of a fictitious king, for otherwise the players themselves would have been punished. The time seems to have been in March, 1606. The recent story of the Due de Biron had been also brought on the stage, which seems much less wonderful. 1845.] t The letters on this subject, pubhshed by Lord Hardwicke, State Papers, vol. i., are highly im- portant; and being imknown to Carte and Hume, render their nairatives less satisfactorj'. Some pamphlets of the time, in the second volume of the Somers Tracts, may be read with interest; and Howell's Letters, being written from Madrid dur- ing the Prince of Wales's residence, deserve no- tice. See, also, Wilson, Ln Kennet, p. 750, et post. Dr. Lingard has illustrated the subject lately, ix., 271. JA.MES I.] FROM HENRY VII. TO GEORGE II. 213 of Buckingham "m Spain, to sweai* to certain private articles, some of which he had al- ready 2)roniised before their departure, by which he bound himself to suspend all penal laws affecting the Catholics, to permit the exercise of their religion in private houses, and to procure from Parliament, if possible, a legal toleration. This toleration, as pre- liminary to the entire re-establishment of popery, had been the first great object of Spain in the treaty. But tliat court, hav- ing proti'acted the treaty for years, in order to extort more favorable terms, and interpos- ed a thousand pretenses, became the dupe of its own artifices ; the resentment of a haughty minion overthrowing with ease the painful fabric of this tedious negotiation. Buckingham obtained a transient and un- Parliament merited popularity by thus avert- ofi624. ifig £j gi-eat public mischief, which rendered the next Parliainent unexpectedly peaceable. The Commons voted three sub- sidies and three fifteenths, in value about t£300,000 ;* but with a condition, proposed by the king himself, that, in order to insure its application to naval and militaiy arma- ments, it should be paid into the hands of treasurere appointed by themselves, who should issue money only on the warrant of the council of war. He seemed anxious to tread back the steps made in the former session, not only referring the highest mat- ters of state to their consideration, but promising not to treat for peace without their advice. They, on the other hand, acknowledged themselves most bound to his majesty for having been pleased to require their humble advice in a case so important, * Hume, and many other writers on the side of the crown, assert the value of a subsidy to have fallen from £70,000, at which it had hceu under the Tadors, to £'55,000, or a less sum. But though I will not assert a negative too boldly, I have no recollection of having found any good authority for this ; and it is surely too improbable to be lightly credited. For admit that no change was made in each man's rate according to the increase of wealth and diminution of the value of money, the amount must at least have been equal to what it had been ; and to suppose the contributors to have prevailed on the assessors to undeiTate them, is rather con- trary to common fiscal usage. In one of Mode's letters, which, of course, I do not quote as decisive, it is said that the value of a subsidy was not above £80,000 ; and that the assessors were directed (this was in 1621) not to follow former books, but value every man's estate according to their knowl- edge, and not his own confession. not meaning, we may be sure, by these courteous and loyal expressions, to recede from what they had claimed in the last Par- liament as their undoubted right.* The most remarkable affair in this ses- sion was the impeachment of impeachment the Earl of Middlesex, actually of Middlesex, lord-treasurer of England, for bribery and other misdemeanors. It is well known that the Prince of Wales and Duke of Buckingham instituted this prosecution to gi'atify the latter's private pique, against the wishes of the king, who warned them they would live to have their fill of Parliamentary impeachment. It was conducted by mana- gers on the part of the Commons in a very regular form, except that the depositions of witnesses were merely read by the clerk ; that fundamental rule of English law which insists on the viva voce examination being as yet unknown, or dispensed with in politi- cal trials. Nothing is more wortliy of no- tice in the proceedings upon this impeach- ment tlian what dropped from Sir Edwin Sandys, in speaking upon one of the charg- es. Middlesex had laid an imposition of c£.3 per ton on French wines, for taking off which he received a gratuity. Sandys, commenting on this offense, protested in the name of the Commons that they intend- ed not to question the power of imposing claimed by the king's prerogative : this they touched not upon now ; they continued only their claim, and when they should have oc- casion to dispute it, would do so with all due regard to his majesty's state and reve- nue.f Such cautious and temperate lan- guage, far from indicating any disposition to recede from their pretensions, is rather a proof of such united steadiness and discre tion as must insure their success. Mid dlesex was unanimously convicted by the Peers. t His impeachment was of the * Pari. Hist., 1383, 1388, 1390. Carte, 119. Tha king seems to have acted pretty fairly in this Par- hament, bating a gross falsehood in denying the intended toleration of papists. He wished to get further pledges of support from Parliament before he plunged into a war, and was veiy right in do- ing so. On the other hand, the prince and Duke of Buckingham behaved in public toward him with great rudeness. — Pari. Hist., 1396. t Pari. Hist., 1421. X Clarendon blames the impeachment of Middle- sex for the very reason which makes me deem it a fortunate event for the Constitution, and seems to consider him as a sacrifice to Buckingham's re- 214 COXSTITUTIONAL HISTORY OF ENGLAND [Chap. VI. highest moment to the Commons, as it re- stored forever that salutary constitutional right which the single precedent of Lord Bacon might have been insufficient to estab- lish against the ministers of the crown. The last two Parliaments had been dis- solved without passing a single act, except the subsidy bill of 1621. An interval of legislation for thirteen years was too long for any civilized country. Several statutes were enacted in the present session, but none so material as that for abolishing mo- nopolies for the sale of merchandise, or for using any trade.* This is of a declaratoiy nature, and recites that they ai-e already contrary to the ancient and fundamental laws of the realm. Scarce any difference arose bet^veen the crown and the Com- mons. This singular calm might probably have been interrupted, had not the king put an end to the session. They expressed some little dissatisfaction at this step,f and presented a list of gi-ievances, one only of which is sufficiently considerable to deserve notice, namely, the proclamations already sentment. Hackett, also, the biosrapher of Will- iams, takes his part. Carte, however, thought him ^ilty, p. 116 ; aud the imauimous vote of the Peers is much against him, since that House was not wholly governed by Buckingham. See, too, the Life of Nicholas Fan-ar, in Wordsworth's Ec- clesiastical Biography, vol. iv., where it appears that that pious and conscientious man was one of the treasurer's most forward accusers, liaviug been deeply injured by him. It is difficult to determine tlie question from the printed trial. * 21 Jac. 1, c. 3. See what Lord Coke says on this act, and on the general subject of monopolies, 3 Inst., 181. t Pari. Hist., 1483. mentioned in restraint of building about London, whereof they complain in very gentle terms, considering their obvious ille- gality and violation of private right.* The Commons had now been engaged for more than twenty years in a sti-uggle to re- store and to fortify theii' own and their fel- low-subjects' liberties. They had obtained in this period but one legislative measure of importance, the late declaratory act against monopolies, but they had rescued from dis- use their ancient right of impeachment. They had placed on record a protestation of their claim to debate all matters of public concern. They had remonstrated against the usurped prerogatives of binding the subject by proclamation, and of levying cus- toms at the out-poits. They had secured beyond controversy then- exclusive privilege of determining contested elections of their members. Of these advantages, some Avere evidently incomplete, and it would require the most vigorous exertions of future Par- liaments to realize them ; but such exer- tions the increased energy of the nation gave abundant cause to anticipate. A deep and lasting love of freedom had taken hold of evei'y class, except, perhaps, the clergy ; from which, when viewed together with the rash pride of the court, and the uncer- tainty^ of constitutional principles and pre- cedents, collected through our long and va- rious history, a calm by-stander might pre- sage that the ensuing reign would not pass without disturbance, nor perhaps end with- out confusion. * Pari. Hist., p. 1480. Cha. I.— 1625-29 ] FKOM HENRY VII. TO GEORGE II. 215 CHAPTER VTI. ON THE ENGLISH CONSTITUTION FROM THE ACCESSION OF CHARLES L TO THE DISSOLUTION OF HIS THIRD PARLIAMENT. Parliament of 1625. — Its Dissolution. — Another Parliament called. — Prosecution of Buckingham. — Arbitrary Proceedings toward the Earls of Arundel and Bristol. — Loan demanded by the King. — Several committed for Refusal to con- tribute.— They sue for a Habeas Corpus. — Ar- guments on this Cluestion, which is decided against them. — A Parliament called in 1628.— Petition of Right.' — King's Reluctance to grant it. — - Toimage and Poundage disputed. . — • King dissolves Parliament. — Religions Differences. — Prosecution of Puritans by Bancroft. — Growth of High-Church Tenets. — Difl'erences as to the Ob- servance of Sunday. — Arminian Controversy. — State of CathoUcs under James. — Jealousy of the Court's Favor toward them. — Unconstitu- tional Tenets promulgated by the High-Church Party. — General Remarks. Charles the First had much in his char- acter veiy suitable to the times in which he lived, and to the spirit of tlie people he was to rale ; a stern and serious deportment, a disinclination to all licentiousness, and a sense of religion that seemed more real than in his father.* These qualities we might suppose to have raised some expecta- tion of him, and to have procured at his ac- cession some of that popularity which is rarely withheld from untried princes. Yet it does not appear that he enjoyed even this first transient sunshine of his subjects' af- fection. Solely intent on retrenching the excesses of pi-erogative, and well aware that no sovereign would voluntarily recede from the possession of power, they seem to have dreaded to admit into their bosoms any sentiments of personal loyalty which might enervate their resolution : and Charles took speedy means to convince them that they had not erred in withholding their confi- dence. * The general temperance and chastity of Charles, and the effect those virtues had in reform- ing the outward face of the court, are attested by many writers, and especially by Mrs. Hutchinson, whose good word he would not have undesei-ved- ly obtained. — Mem. of Col. Hutchinson, p. 65. I am aware that he was not the perfect saint as well as martjT whiclj his panegyrists represent him to have been ; but it is an unworthy ofEce, even for the purpose of throwing ridicule on exaggerated praise, to turn the microscope of history on private life. Elizabeth in her systematic parsimony, James in his averseness to war, had been alike influenced by a consciousness that want of money alone could render a Par- liament formidable to their power. None of the iiTegular modes of supply were ever productive enough to compensate for the clamor they occasioned ; after impositions and benevolences were exhausted, it had always been found necessary, in the most arbitrary times of the Tudors, to fall back on the representatives of the people. But Charles succeeded to a war, at least to the preparation of a war, rashly undertaken through his own weak compliance, the ar- rogance of his favorite, and the generous or fanatical zeal of the last Parliament. He would have perceived it to be manifestly impossible, if he had been capable of under- standing his own position, to continue this war without the constant assistance of the House of Commons, or to obtain that assist- ance without very costly sacrifices of his royal power. It was not the least of this monarch's imprudences, or, rather, of his blind compliances with Buckingham, to have not only commenced hostilities against Spain which he might easily have avoid- ed,* and persisted in them for four years, but entered on a fresh war with France, though he had abundant experience to demonstrate the impossibility of defraying its charges. The first Parliament of this reign has been severely censured on account of parliament the penurious supply it doled out °^ for the exigencies of a war in which its predecessors had involved the king. I will not say that this reproach is wholly un- founded. A more liberal proceeding, if it did not obtain a reciprocal concession from the king, would have put him more in the wrong ; but, according to the common prac- tice and character of all such assemblies, it * War had not been declared at Charles's ac- cession, nor at the dissolution of the first Parlia- ment. In fact, lie was much more set upon it than his subjects. Hume and all his school keep this out of sight. 216 CONSTITUTIONAL HISTORY OF ENGLAND [Chap. VH. was preposterous to expect subsidies equal 1 to the occasion, until a foundation of confi- dence should be laid between the crown and Parliament. The Commons had be- gun, i)robably, to repent of their hastiness in the preceding year, and to discover that Buckingham and his pupil, or master (which shall we say?), had conspired to deceive them.* They were not to forget that none of the chief gi'ievances of the last reign were yet redressed, and that supplies must be voted slowly and conditionally if they would hope for reformation ; hence they made their gi'ant of tonnage and poundage to last but for a year instead of the king's hfe, as had for two centuries been the prac- tice, on which account the Upper House rejected the bill :f nor would they have re- fused a further supply, beyond the two sub- sidies (about ^140,000) which they had Its dissolu- granted, had some tender of re- tion. dress been made by the crown ; and they were actually in debate upon the matter when interrupted by a sudden disso- lution.J Nothing could be more evident, by the experience of the late reign as well as by observing the state of public spirit, than that hasty and premature dissolutions or proro- gations of Parliament served but to aggra- vate the crown's embarrassments. Every successive House of Commons inherited the feelings of its predecessor, without which it would have ill represented the prevalent humor of the nation. The same men, for the most part, came again to Par- liament more irritated and desperate of rec- onciliation with the sovereign than before. Even the politic measure, as it was fancied to be, of excluding some of the most active members from seats in the new assembly, by nominating them sheriffs for the year, failed altogether of the expected success, as * Hume has disputed this, but with little suc- cess, even on his own showing. He observes, on an assertion of Wilson, that Buckingham lost his popularity after Bristol arrived, because he proved that the former, while in Spain, had professed him- self a papist — that it is false, and K-as never said hy Bristol. It is singular that Hume should know BO positively what Bristol did not say in 1624, when it is notorious that he said in Parliament what nearly comes to the same thing in 1626. — See a curious letter in Cabala, p. 224, showing what a combination had been formed against Back- inghara, of all descriptions of malcontents. t Pari. Hist., vol. ii., p. 6. t Id., 33. it naturally must in an age when all ranks partook in a common enthusiasm.* Hence the prosecution against Buckingham, to avert which Charles had dissolved his first Parliament, was commenced with redoub- led vigor in the second. It was too late, after the precedents of Bacon and Middle- sex, to dispute the right of the Commons to impeach a minister of state. The king, however, anticipating their resolutions, af- ter some sharp speeches only had been ut- tered against his favorite, sent a message that he would not allow any of his servants to be questioned among them, much less such as were of eminent place and near unto him. He saw, he said, that some of them aimed at the Duke of Buckingham, whom, in the last Parliament of his father, all had combined to honor and respect, nor did he know what had happened since to alter their affections ; but he assured them that the duke had done nothing without his own special direction and appointment. This haughty message so pro- p,„,,,„tia» voked the Commons that, hav- of Buckiug- ing no express testimony against Buckingham, they came to a vote that com- mon fame is a good gi-ound of proceeding, either by inquiiy, or presenting the com- plaint to the king or Lords ; nor did a speech from the lord-keeper, severely rat- ing their presumption, and requiring, on the king's behalf, that they should puni.sh two of their members who had given him of- fense by insolent discourses in the House, lest he should be compelled to use his royal authority against them ; nor one from the king himself, bidding them " remember that Parliaments were altogether in his power for their calling, sitting, and dissolu- tion— therefore, as he found the fruits of * The language of Lord-keeper Coventry in opening the session was very ill calculated for the spirit of the Commons : " If we consider aright, and think of that incomparable distance between the supreme height and majesty of a mightj- monarch and the submissive awe and lowliness of loyal subjects, we cau not but receive exceeding com- fort and contentment in the frame and constitution of this highest court, wherein not only the prelates, nobles, and grandees, but the commons of all de- crees, have their part ; and wherein that high maj- esty doth descend to admit, or rather to invite, the humblest of bis subjects to conference and counsel with him," &c. He gave them a distinct hint afterward that they must not expect to sit I long.— Pari. Hist., 39. CH4. I.— 1625-29.] FROM HENRY VII. TO GEORGE 11. 217 them good or evil, they were to continue to be or not to be,"* tend to pacify or to intimidate the assembly. They addressed the king in veiy decorous language, but asserting " the ancient, constant, and un- doubted right and usnge of Parliaments to question and complain of all persons, of what degree soever, found grievous to the Commonwealth, in abusing the power and h'ust committed to thenr by their sover- eign." The duke was accordingly im- peached at the bar of the House of Peers on eight articles, many of them pi-obably well founded ; yet as the Commons heard no evidence in support of them, it was rather unreasonable in them to request that he might be committed to the Tower. In the conduct of this impeachment, two of the managers, Sir John Eliot and Sir Dudley Digges, one the most illustrious confessor in the cause of liberty whom that time produced, the other a man of much ability and a useful supporter of the popu- lar party, though not free from some oblique views toward promotion, gave such offense by words spoken, or alleged to be spoken, in derogation of his majesty's honor, that they were committed to the Tower. The Commons, of course, resented this new outrage. They resolved to do no more business till they were righted in their priv- ileges. They denied the words imputed to Digges ; and thirty-six peers asserting that he had not spoken them, the king ad- • Pari. Hist., 60. I know of nothing under the Tadors of greater arrogance than this lani^uage. Sir Dudley Carleton, accustomed more to foreign negotiations than to an English House of Commons, gave very just offense by descanting on tlie misery of the people in other countries. " He cautioned them not to make tlie king out of love with Parlia- ments by encroaching on his prerogative ; for in his messages he had told them that he must then use new councils. In all Chri.stian kingdoms there were Parliaments anciently, till the mouarchs, see- ing their turbulent spirits, stood upon their pre- rogatives, and overthrew them all, except with ns. In foreign conntries the people look not like ours, with store of flesh on their backs ; but Uke ghosts, being nothing but skin and bones, with some thin cover to their nakedness, and wearing wooden shoes on their feet ; a miseiy beyond expression, and that we are yet fi-ee from ; and let us not lose the repute of a free-bom nation by our turbulency in Parliament." — Rusliworth. This was a hint, in the usual arrogant stj'le of courts, that the liberties of the people depended on favor, and not on their own determination to maintain them. mitted that he was mistaken, and released both their members.* He had already broken in upon the privileges of ^riiitrary the House of Lords, by commit- i>roceedin;js , , , towiuU the tnig the Larl of Anmdel to the Earls of Tower during the session ; not ^™'"'«' upon any political charge, but, as was com- monly surmised, on account of a marriage which his son had made with a lady of roy- al blood. Such private offenses were suf- ficient in those arbitraiy reigns to expose the subject to indefinite imprisonment, if not to an actual sentence in the Star Cham- ber. The Lords took np this detention of one of their body, and, after formal exami- nation of precedents by a committee, came to a resolution, "that no lord of Parliament, the Parliament sitting, or within the usual times of privilege of Parliament, is to be imprisoned or restrained without sentence or order of the House, unless it be for trea- son or felony, or for refusing to give surety for the peace." This assertion of privilege was manifestly warranted by the co-extens- ive liberties of the Commons. After vari- ous messages between the king and Lords, Arundel was ultimately set at liberty. f This infringement of the rights of the peerage was accompanied by an- other not less injurious, the refu- sal of a writ of summons to the Earl of Bristol. The Lords were justly tenacious of this unquestionable privilege of their or- der, without which its constitutional dignity and independence could never be maintain- ed. Whatever irregularities or uncertainty of legal principle might be found in earlier times as to persons summoned only by -writ without patents of creation, concerning whose hereditary peerage there is much reason to doubt, it was beyond all contro- and Bristol. * Pari. Hist., 119. Hatsell, i., 147. Lords' Journals. A few peers refused to join in this. Dr. Lingard has observed that the opposition in the House of Lords was headed by the Earl of Pembroke, who had been rather conspicuous in the late reign, and whose character is drawn hy Clar- endon in the first book of his history. He held ten proxies in the king's fir.st Paj-liament, as Bucking- ham did thirteen. — Lingard, ix., 328. In the sec- ond, Pembroke had only five, but the duke still came with thirteen. — Lords' Journals, p. -19] . This enormous accumulation of suffrages in one person led to an order of the House, which is now its es- tablished regulation, that no peer can liold more than two proxies. — Lords' Journals, p. 507. t Pari. Hist., 125. Hatsell, 141. 218 CONSTITUTIONAL HISTOUY OF ENGLAND [Chap. VIL versy that an earl of Bristol holding his dig- nity by jjatent was entitled of right to attend Parliament. The House necessarily in- sisted upon Bristol's receiving his summons, which was sent him with an injunction not to comply with it by taking his place. But the spirited earl knew that the king's con- stitutional will expressed in the wiit ought to outweigh his private command, and laid the secretary's letter before the House of Lords. The king prevented any further interference in his behalf by causing articles of charge to be exhibited against him by the attorney-general, whereon he was commit- ted to the Tower. These assaults on the pride and consequence of an aristocratic as- sembly, from whom alone the king could expect effectual support, displaj' his unfit- ness not only for the government of Eng- land, but of any other nation. Nor was his conduct toward Bristol less oppressive than impolitic. If we look at the harsh and in- decent employment of his own authority, and even testimony, to influence a criminal process against a man of approved and un- tainted worth,* and his sanction of charges which, if Bristol's defense be as tnae as it is now generally admitted to be, he must have known to be unfounded, we shall hard- ly concur with those candid persons who believe that Charles would have been an excellent prince in a more absolute monar- chy. Nothing, in truth, can be more pre- posterous than to maintain, like Clarendon and Hume, the integi'itj- and innocence of Lord Bristol, together with the sincerity and humanity of Charles the First. Such inconsistencies betray a determination in the historian to speak of men according to his preconceived affection or prejudice, without so much as attempting to reconcile these sentiments to the facts which he can nei- ther deny nor excuse. f * Mr. Brodie has commented rather too severely on Bristol's conduct, vol. ii., p. 109. That he was "actuated merely by motives of self-aggrandize- ment" is surely not apparent, though he might be more partial to Spain than we may think right, or even though he might have some bias toward the religion of Rome. The last, however, is by no means proved, for the king's word is no proof in niy eyes. t See the proceedings on the mutual charges of Buckingham and Bristol in Rushworth, or the Parliamentarj' Historj'. Charles's beha^nor is worth noticing. He sent a message to the House, desiring that they would not comply with the earl's Though the Lords petitioned against a dissolution, the king was determined to pro- tect his favorite, and rescue himself from the importunities of so refractoTy a House of Commons.* Perhaps he had already taken the resolution of governing without the concun-ence of Parliaments, though he was induced to break it the ensuing year. For the Commons having delayed to pass a bill for the five subsidies which they had voted in this session till they should obtain some satisfaction for their complaints, he was left without any regular supply. This was not wholly unacceptable to some of his counselors, and probably to himself, as af- fording a pretext for those unauthorized demands which the advocates of arbitraiy prerogative deemed more consonant to the request of being allowed counsel, and jaelded un- graciously when the Lords remonstrated against the prohibition.— Pari. Hist , 97, 132. The attorn- ey-general exhibited articles against Bristol as to facts depending in great measure on the king's sole testimony. Bristol petitioned the House "to take into consideration of wliat consequence such a pre- cedent might be, and thereon most humbly to move his majesty for the declining, at least, of his majes- ty's accusation and testimony. " — Id., 98. The House ordered two questions on this to be put to the judges : 1. Whether, in case of treason or fel- ony, the king's testimony was to be admitted or not ? 2. Whether words spoken to the prince, who is after king, make any alteration in the case 7 They were ordered to deliver their opinions three •lays afterward. But when the time came, the chief justice informed the House that the attorney-gen- eral had communicated to the judges his majesty's pleasure that they should forbear to give an an- swer.— Id., 103, 106. Hume says, " Charles himself was certainly de- ceived by Buckingham, when he corroborated his favorite's nan-ative by his testimony." But no as- sertion can be more gratuitous ; the supposition, indeed, is impossible. * Pari. Hist., 193. If the following letter is ac- curate, the pri\'y-council themselves were against this dissolution : " Yesterday, the Lords, sitting in council at Whitehall to argue whether the Parlia- ment should be dissolved or not, were all with one voice against the dissolution of it ; and to-day, when the lord-keeper drew out the commission to have read it, they sent four of their own body to his majestj' to let him know how dangerous this abruption would be to the state, and beseech him the Parliament might sit but two days. He an- swered. Not a minute." — 13 June, 1626. Mede's Letters, ubi supra. The author expresses great alarm at what might be the consequence of this step. Mede ascribes this to the council , but oth- ers, perhaps more probably, to the House of Peers. The king's expression, "not a minute," is men- tioned by several writers. Cha. I.— 1625-29.] FROM HENRY VII. TO GEORGE 11. 219 monarch's honor. He had issued Loan de- mandeu by letters 01 privy seal, after the for- the king. Parliament, to those iu every county whose names had been returned by tlie lord-lieutenant as most capable, mention- ing the sum they were required to lend, with a promise of repayment in eighteen mouths.* This specification of a particular sum was reckoned an unusual encroachment, and a manifest breach of the statute against arbi- trary benevolences, especially as the names of those who refused compliance were to be returned to the council. But the gov- ernment now ventured on a still more out- rageous stretch of power. They first at- tempted to persuade the people that, as subsidies had been voted in the House of Commons, they should not refuse to pay them, tliough no bill had been passed for that purpose. But a tumultuous cry was raised in Westminster Hall from those who had been convened, that they would pay no subsidy but by authority of Parliaraent.f * Rashworth. Kennet. t Mede's Letters. " On Monday tlie judges sat in Westminster Hall to persuade the people to pa3' subsidies ; but there arose a great tumultuous shont among them, 'A Parliament! a Parliament! else no subsidies!' The levying: of the subsidies, verbally granted in Parliament, being propounded to the subsidy-men in Westminster, all of them, saving some thirty among five thousand (and they all the king's servants), cried, ' A Parliament ! a Parliament !' &c. The same was done in Middle- sex on Monday also, in five or six places, but far more are said to have refused the grant. At Hick's Hall, the men of Middlesex assembled there, when they had heard a speech for the purpose, made their obeisance, and so went out without any an- swer affirmative or negative. In Kent the whole county denied, saying that subsidies were matters of too high a nature for them to meddle withal, and that they durst not deal therewith, lest hereafter they inight be called in question." — July 22, et post. In Harleian MSS., vol. xxxvii., fol. 192, we find a letter from the king to the deputy -lieuten- ants and justices of every county, informing them that he had dissolved the last Parliament because the disordered passion of some members of that House, contrary to the good inclination of the greater and wiser sort of them, had frustrated the grant of four subsidies and three fifteenths which they had promised ; he therefore enjoins the dep- uty-lieutenants to cause all the troops and bands of the county to be mustered, trained, and ready to march, as he is threatened with invasion ; that the justices do divide the county into districts, and appoint in each able persons to collect and receive moneys, promising the parties to employ them in the common defense ; to send a list of those who contribute and those who I'efuse, " that we may This course, therefore, was abandoned for one hardly less unconstitutional. A gener- al loan was demanded from every subject, according to the rate at which he was as- sessed in the last subsidy. The commis- sioners appointed for the collection of this loan received private instructions to require not less than a certain proportion of each man's property in lands or goods, to treat separately with every one, to examine on oath such as should refuse, to certify the names of refractory persons to the privy- council, and to admit of no excuse for abate- ment of the sum required.* This arbiti'ary taxation (for the name of loan could not disguise the extreme improb- ability that the money would be repaid), so general and systematic as well as so weighty, could not be endured without establishing a precedent that must have shortly put an end to the existence of Parliaments ; for if those assemblies were to meet only for the sake of pouring out stupid flatteries at the foot of the throne, of humbly tendering such supplies as the ministry should suggest, or even of hinting at a few subordinate griev- ances which touched not the king's prerog- ative and absolute control in matters of state — functions which the Tudors and Stuarts were well pleased that they should exercise — if every remonstrance was to be checked by a dissolution, and chastised by imprison- ment of its promoters, every denial of sub- sidy to furnish a justification for extorted loans, our free-born, high-minded gentry would not long have brooked to give their attendance in such an ignominious assem- bly, and an English Parliament would have become as idle a mockery of national repre- sentation as the Cortes of Castile. But this kingdom was not in a temper to put up with tyranny. The king's advisers were as lit- tle disposed to recede from their attempt. They prepared to enforce it by the arm of power. f The common people who refused hereby be informed who are well affected to our service, and who are otherwise." — July 7, 1626. It is evident that the pretext of invasion, which was utterly improbable, was made use of in order to shelter the king's illegal proceedings. * Rushworth's Abr., i., 270. t The 321st volume of Hargrave MSS., p. 300, contains minutes of a debate at the council-table during the interval between the second and third Pai-liaments of Charles, taken by a counselor. It was proposed to lay an excise on beer; others 220 CONSTITUTIONAL HISTORY OF ENGLAND [Chap. VIL to contribute were impressed to serve in the ' on behalf of the claimants, and by the At- Several ccm- navy. The gently were bound ' tomey-general Heath for the crown, refusal by recognizance to apptar at the ' The counsel for the prisonere grounded contribute. couDcil-table, where many of their demand of liberty on the ahabeMCOT- Aem were committed to pris pus. on.* Armaments original basis of Magna Charta; r.n this Among these were five the twenty -ninth section of which, knights, Darnel, Corbet, Earl, Hevening- as is well known, provides that "no free ham, and Hampden, who sued the Court man shall be taken or imprisoned unless by of King's Bench for their writ of habeas lawful judgment of his peers, or the law of corpus. The writ was granted: but the the land."' This principle having been fre- warden of the Fleet made return that they quently transgressed by the king's privy- were detained by a warrant from the pri\-y- council in earlier times, statutes had been council, informing him of no particular cause repeatedly enacted, independently of the of imprisonment, but that they were com- general confirmations of the charter, to re- mitted by the special command of his maj- dress this material grievance. Thus, in the esty. This gave rise to a most important 2.5th of Edward HI., it is provided that "no question, whether such a return was sufld- one shall be taken by petition or suggestion cient in law to justify the court in remitting to the king or his counsel, unless it be {i. e., the parties to custody. The fundamental but only) by indictment or presentment, or immunity of English subjects from arbitra- \ by writ original at the common law." And ry detention had never before been so fully this is again enacted three years afterward, canvassed ; and it is to the discussion which with little variation, and once again in the arose out of the case of these five gentlemen course of the same reign. It was never that we owe its continual assertion by Par- ' understood, whatever the loose language of liament, and its ultimate establishment in full ' these old statutes might suggest, that no practical efficacy by the statute of Charles man could be kept in custody upon a crim- II. It was argued with great ability by ^ inal charge before indictment, which would Noy, Selden, and other eminent lawyers have afforded too great security to olTend- ' : ; TTT ', ' ers ; but it was the regular practice that ev- 6u?2estea that it should be on malt, on account of i /■ • , what was brewed in private houses. It was then ^ly waiTant of commitment, and eveiy re- debated "how to overcome difEculties, whether by tiun by a jailer to the writ of habeas cor- persnasion or force. Persuasion, it was thought, pus. must express the nature of the charge, would not eain it ; and for judicial courses, it would that it might appear whether it were no not hold against the subject that would stand upon j ^^^-^^ the n^ht of his own property, and asamst the Ion- , , . , ... <- , . , damental constitutions of the kingdom. The last [ be mstantly set at liberty, or one for which resort was to a proclamation ; for in the Star Cham- ; baU ought to be taken, or one for which he ber it might be punishable, and thereupon It rest- must be remanded to piison. It appears ed." There follows much more ; it seemed to be ; ^ave been admitted without contro- asreed that there was such a necessits" as misrht ..u u ^ u j- . »i, I. ; - . ' \eTsy, though not, perhaps, according to the justily the imposition ; yet a sort ot reluctance is; •' ji-i i i ■ visible even among these timid counselors. The strict letter of law, that the pnvy -council king pressed it forward much. In the same vol- might commit to prison on a criminal charge, Time, p. 393, we find other proceedings at the cotm- since it seemed preposterous to deny that cU-table, whereof the snbject was the censoring or power to those intrusted with the care of pnnishius of some one who had refused to contrib- ^, i^i i • u ^ \ ^ ..I," 1 /-i^-ii. .u J -Ti 1 the Commonwealth which every petty mag- nte to the loan of 1626, on the around of its mesal- j t j —9 ity. The highest language is held by some of the [ istrate enjoyed. But it was contended that conclave in this debate. they were as much bound as every petty Mr. D israeli has collected from the same copi- magistrate to assign such a cause for their ous reservoir, the manuscripts of the British Muse- ^ -^^ ^^3^^ jj^^ q^^^ am, several more illustrations both of the arbitrary | proceedings of the council, and of the bold spirit with which they were resisted. — Curiosities of , Literature, New Series, iii., 381. But this inge- nious author is too much imbued with " the mon- j strous faith of many made for one," and sets the pri- , ^^^^j.^, precedents, from the reign of Hen- vate feelines of Charles for an unworthy and dan- ^rr^ , t j ' gerous minion above the Uberries and interests of i ^ H. to that ot James, where persons the nation. * Bushworth. Kennet. committed by the council generally, or even of King's Bench to determme whether it should release or remand the prisoner brought before them by habeas corpus. The advocates for this principle alleged Cha. L— 1625-29.] FKOM HENRY VII. TO GEORGE II. 221 by the special command of the king, had been admitted to bail on their habeas cor- pus. "But I conceive," said one of these, " that our case will not stand upon prece- dent, but upon the fundamental laws and statutes of this realm ; and though the prec- edents look one way or the other, they are to be brought back unto tlie laws by which the kingdom is governed." He was aware that a pretext might be found to elude most of his precedents. The warrant had com- monly declared the paity to be charged on suspicion of treason or of felony, in which case he would, of course, be bailed by the court; yet in some of these instances the words " by the king's special command" were inserted in the commitment, so that they served to repel the j)retension of an ar- bitrary right to supersede the law by his per- sonal authority. Ample i)roof was brought from the old law-books that the king's com- mand could not excuse an illegal act. " If the king command me," said one of the judges under Heniy VI., "to airest a man, and I arrest him, he shall have an action of false imprisonment against me, though it were done in the king's presence." "The king," said Chief-justice Markliam to Ed- ward IV., " can not ai-rest a man upon sus- picion of felony or treason, as any of his subjects may, because if he should wrong a man by such arrest, he can have no rem- edy against him." No verbal order of the king, nor any under his sign manual or pri\y signet, was a command, it was contended by Selden, which the law would recognize as sufficient to arrest or detain any of his subjects; a writ duly issued under the seal of a court being the only language in which he could signify his will. They urged fur- ther, that even if the first commitment by the king's command were lawful, yet when a pally had continued in prison for a reason- able time, he should be brought to answer, and not be indefinitely detained ; liberty be- ing a thing so favored by the law that it will not suffer any man to remain in confinement for any longer time than of necessity it must. To these pleadings for liberty. Heath, the attorney-general, replied, in a speech of considerable ability, full of those high prin- ciples of prerogative which, trampling as it were on all statute and precedent, seemed to tell the judges that they were placed there to obey rather than to determine. " This commitment," he says, " is not in a legal and ordinaiy way, but by the special command of our lord the king, which im- plies not only the fact done, but so extraor- dinarily done, that it is notoriously his maj- esty's immediate act and will that it should be so." He alludes aftei-wai'd, though some- what obscurely, to the king's absolute pow- er, as contiadistinguished from that accord- ing to law ; a favorite distinction, as I have already obsei"ved, with the supporters of despotism. " Shall we make inquiries," he says, " whether his commands are law- ful ? Who shall call in question the justice of the king's actions, who is not to give ac- count for them ?" He argues from the le- gal maxim that the king can do no wong, that a cause must be presumed to exist for the commitment, though it be not set forth. He adverts with more success to the num- ber of papists and other state-prisoners de- tained for years in custody for mere politi- cal jealousy. "Some there were," he says, " in the Tower, who were put in it when very young ; should they bring a habeas corpus, would the court deliver them ]" Passing next to the precedents of the other side, and condescending to admit their valid- ity, however conti'ary to the tenor of his fonner argument, he evades their applica- tion by such distinctions as I have already mentioned. The judges behaved during this gi-eat cause with apparent moderation . , . , . Whichisde- and sense of its importance to cided against the subject's freedom. Their decision, however, was in favor of the crown, and the prisoners were remanded to custody. In pronouncing this judgment, the chief justice. Sir Nicholas Hyde, avoid- ing the more extravagant tenets of absolute monarchy, took the narrower line of deny- ing the application of those precedents which had been alleged to show the prac- tice of the court in bailing persons commit- ted by the king's special command. He endeavored also to prove that, where no cause had been expressed in the waiTant, except such command as in the present in- stance, the judges had always remanded the parties, but with so little success, that I can not perceive more than one case men- tioned by him, and that above a hundred years old, which supports this doctrine. The best authority on wliich he had to rely 222 CONSTITUTIONAL HISTORY OF EXGLAXD [Chap. VIL was the resolution of the judges in the 34th of Elizabeth, published in Anderson's Re- ports ;* for, though this is not gi-ammatical- ly worded, it seems impossible to doubt that it acknowledges the special command of the king, or the authority of the privy-council as a body, to be such sufficient waiTant for a commitment as to requu-e no further cause to be expressed, and to prevent the judges from discharging the party from custody, either absolutely or upon bail ; yet it was evidently the consequence of this decision, that eveiy statute from the time of Magna Charta, designed to protect the personal lib- erties of Englishmen, became a dead letter, since the insertion of four words in a war- rant (per speciale mandatum regis), which might become matter of form, Avould con- trol their remedial efficacy ; and this wound was the more deadly, in that the notorious cause of these gentlemen's imprisonment was their withstanding an illegal exaction of money. Every thing that distinguished our constitutional laws, all that rendered the name of England valuable, was at stake in this issue. If the judgment in the case of ship-money was moi-e flagi-antly iniqui- tous, it was not so extensively desti'uctive as the present, f Neither these measures, however, of ille- gal severity toward the uncompliant, backed as they were by a timid court of justice, nor the exhortations of a more prostitute and shameless band of chmxlimen, could divert the nation from its cardinal point of faith in its own prescriptive franchises. To A Parlia another Parliament appeai-- ment called ed the only practicable means of raismg money lor a war, m which the king persisted witli gi-eat impolicy, or, rather, blind trust in his favorite. He con- sented to this with extreme unwillingness.} Previously to its assembling, he released a * See above, in chap. v. Coke himself, while chief justice, had held that one committed by the pri^y -council was not bailable by any court in Eng- land.— Pai-I. Hist., 310. He had nothins to say when pressed with this in the next Parliament, but that he had missrounded his opinion upon a certain precedent, which being nothing to the pur- pose, he was now assured his opinion was as lit- tle to the purpose. — Id., .325. State Trials, iii., 81. t State Trials, iii., 1-234. Pari. Hist., 216, 259, &c. Rushworth. t At the council-table, some proposing a Parlia- ment, the king said be did abominate the name. — Mede's Letters, 30th Sept., 1626. considerable number of gentlemen and oth- ers who had been committed for their refu- sal of the loan. These were, in many cases, elected to the new Parliament, coming * thither with just indignation at their coun- try's wrongs, and pai'donable resentment at their own. No year, indeed, within the memory of any one living, had witnessed such violations of public liberty as 1627. Charles seemed born to carry into daily practice those theories of absolute power which had been promulgated from his fa- ther's lips. Even now, while the writs were out for a new Parliament, commis- sioners were appointed to raise money " by impositions or otherwise, as they should find most convenient in a case of such inevitable necessity, wherein form and circumstance must be dispensed with rather than the substance be lost and hazarded ;"* and the levying of ship-money was already debated in the council. Anticipating, as indeed was natural, that this House of Commons would coiTespond as ill to the king's wishes as their predecessors, his advisers were pre- paring schemes more congenial, if they could be rendered effective, to the spirit in which he was to govern. A conti-act was entered into for transporting some troops and a considerable quantity of arms from Flanders into England, under circumstances at least highlj- suspicious, and which, com- bined with all the rest that appears of the court policy at that time, leaves no great doubt on the mind that they were designed to keep under the people while the business of contribution was going fonvard.f Shall it be imputed as a reproach to the Cokes, the Seldens, the Glanvils, the Pyms, the Eliots, the Philipses, of this famous ParUa- ment, that they endeavored to devise more effectual resti-aints than the law had hither- to imposed on a prince who had snapped like bands of tow the ancient statutes of the land, to remove from his presence counsel- ors, to have been misled by whom was his best apology, and to subject liim to an entire dependence on his people for the expendi- ture of government, as the surest pledge of his obedience to the laws ? * Rushworth. Mede's Letters in Harl. MSS., passim. t Rushworth's Abr., i., 304. Cabala, part ii, 217. See what is said of this by Mr. Brodie, ii., I 158. Cha. I.— 1623-29.] FROM HENRY VII. TO GEORGE II. 223 The principal matters of complaint taken up by the Commons in this session were, the exaction of money under the name of loans ; the commitment of those who refus- ed compliance, and the late decision of the King's Bench, remanding them upon a ha- beas corpus ; the billeting of soldiers on pri- vate persons, which had occuired in the last year, whether for convenience or for purposes of intimidation and annoyance ; and the commissions to tiy military offend- ers by martial law : a procedure necessaiy within certain limits to the discipline of an army, but unwaiTanted by the Constitution of tliis country, which was little used to any regular forces, and sti-etched by the arbitra- ry spirit of the king's administration beyond Petition of bounds.* These four grievan- Right. (.gg or abuses form the foundation of the Petition of Right, presented by the Commons in the shape of a declaratory „, , . , statute. Charles had recourse to The king's , . , reluctance many subterfuges m hopes to elude tograniit. ^j^^ passing of this law; rather, perhaps, through wounded pride, as we may judge from his subsequent conduct, than much apprehension that it would create a serious impediment to his despotic schemes. He tried to persuade them to acquiesce in his royal promise not to arrest any one without just cause, or in a simple confirma- tion of the Great Charter and other statutes in favor of liberty. The Peers, too pliant in this instance to his wishes, and half re- ceding from the patriot banner they had lately joined, lent him their aid by propos- ing amendments (insidious in those who suggested them, though not in the body of the House), which the Commons firmly rejected. f Even when the bill was tender- * A commission addressed to Lord Wimbleton, 28th Dec, 1625, empowers Iiim to proceed against soldiers, or dissolute persons joining with them, who should commit any robberies, &c., which by martial law oaght to be punished with death, by such summary course as is agreeable to martial law, Icc. — R\^ner, xviii., 234. Another, in 1626, may be found, p. 763. It is unnecessary to point out how unlike these commissions are to our pres- ent mutiny bills. t Bishop Williams, as we are informed by his biographer, though he promoted the Petition of Right, stickled for the additional clause adopted by the Lords, reserving the king's sovereign pow- er, which very justly exposed him to suspicion of being corrupted ; for that he was so is most evi- dent by what follows, where we are told that he ed to him for that assent, which it had been necessary for the last two centuries that the king should gi-ant or refuse in a word, he returned a long and equivocal answer, from which it could only be collected that he did not intend to remit any portion of what he had claimed as his prerogative ; but on an address from both houses for a more explic- it answer, he thought fit to consent to the bill in the usual form. The Commons, of whose harshness toward Charles his advo- cates have said so much, immediately pass- ed a bill for granting five subsidies, about c£'350,000 ; a sum not too great for the wealth of the kingdom or for his exigencies, but considerable according to the precedents of former times, to which men naturally look.* The sincerity of Charles in thus accord- ing his assent to the Petition of Right may be estimated by the following very remark- able conference which he held on the sub- ject with his judges. Before the bill was passed, he sent for the two chief justices, Hyde and Richardson, to "Wliitehall, and propounded certain questions, directing that the other judges should be assembled in order to answer them. The first question was, " Whether, in no case whatsoever, the king may not commit a subject without showing cause ?" To which the judges had an interview with the Buke of Buckingham, when they were reconciled; and "his grace had the bishop's consent with a little asking, that he would be his grace's faithful servant in the next session of Parliament, and was allowed to hold up a seeming enmity, and his own popular estima- tion, that he might the sooner do the work." — Hackett's Life of Williams, p. 77, 80. With such instances of baseness and treachery in the public men of this age, surely the distrust of the Com- mons was not so extravagant as the school of Hume pretend. * The debates and conferences on this moment- ous subject, especially on the article of the habeas corpus, occupy near two hundred columns in the New Parliamentary Historj-, to which I refer the reader. In one of these conferences, the Lords, observ- ing what a prodigious weight of legal ability was arrayed on the side of the petition, very fairly de- termined to hear counsel for the crown. One of these. Sergeant Ashley, having argued in behalf of the prerogative in a high tone, such as had been usual in the late reign, was ordered into custody; and the Lords assured the other House that he had no authority from them for what he had said. —Id., 327. A remarkable proof of the rapid growth of popular pruiciples ! 224 COXSTITUTIOXAL HISTORY OF EXGLA>'D [Chap. VTL gave an answer tbe same day under their bauds, ■which was the next day presented to his majesty by the two chief justices in these words : " We are of opinion that, by the general rule of law, the cause of com- mitment by his majesty ought to be shown ; yet some cases may require such seci'ecy that the king may commit a subject without showing the cause for a convenient time." The king then delivered them a second question, and required them to keep it very secret, as the former : " Whether, in case a habeas corpus be brought, and a wan-ant from the king without any general or spe- cial cause returned, the judges ought to de- liver him before they understand the cause from the king ?" Their answer was as fol- lows : "Upon a habeas corpus brought for one committed by the king, if the cause be not specially or generally returned, so as the court may take knowledge thereof, the party ought by the general rule of law to be delivered ; but if the case be such that the same requireth secrecy, and may not presently be disclosed, the court, in discre- tion, may forbear to deliver the prisoner for a convenient time, to the end the court may be advertised of the truth thereof." On receiving this answer, the king proposed a third question : "Whether, if the king gi-ant the Commons' petition, he doth not there- by exclude himself from committing or re- sti'aining a subject for any time or cause whatsoever, without showing a cause ?" The judges returned for answer to this important query : " Every law, after it is made, hath its exposition, and so this petition and answer must have an exposition, as the case in the nature thereof shall require to stand with justice ; which is to be left to the courts of justice to determine, which can not particularly be discovered until such case shall happen ; and although the peti- tion be gi'anted, there is no fear of conclu- sion as is intimated in the question."* The king, a very few days afterward, gave his first answer to the Petition of Right; for even this indirect promise of compliance, which the judges gave him, did not relieve him from apprehensions that he might lose the prerogative of arbiti-aiy com- mitment ; and though, after being beaten from this evasion, he was compelled to ac- cede in general terms to the petition, he * Hargrave MSS., xxsii., 97. had the insincerity to circulate one thou- sand five hundred copies of it through the country after the prorogation, with his first answer annexed : an attempt to deceive without the possibility of success.* But in- stances of such ill faith, accumulated as they are through the life of Charles, render the assertion of his sincerity a proof either of historical ignorance or of a want of moral delicacy. The Petition of Right, as this statute is still called, from its not being drawn in the common form of an act of Parliament, after reciting the various laws which have estab- lished certain essential privileges of the sub- ject, and enumerating the violations of them which had recently occurred, in the four points of Ulegal exactions, arbitrary com- mitments, quartering of soldiers or sailors, and infliction of punishment by martial law, prays the king, " That no man hereafter be compelled to make or yield any gift, loan, benevolence, tax, or such like charge, with- out common consent by act of Parliament ; and that none be called to answer or take such oath, or to give attendance, or be con- fined, or otherwise molested or disquieted concerning the same, or for refusal thereof; and that no freeman in any such manner as is before mentioned be imprisoned or de- tained ; and that your majesty would be pleased to remove the said soldiers and ma- rines, and that your people may not be so burdened in time to come ; and that the aforesaid commissions for proceeding by martial law may be revoked and annulled ; and that hereafter no commissions of the like nature may issue forth to any person or persons whatever, to be executed as afore- said, lest by color of them any of your maj- esty's subjects be destroyed or put to death contrary to the laws and fi-anchises of the land."t It might not unreasonably be questioned whether the language of this statute were sufficiently general to comprehend duties charged on merchandise at the out-ports, as well as internal taxes and exactions, espe- cially as tlie former had received a sort of sanction, though justly deemed contrary to * Pari. Hist, 436. t Stat. 3 Car. I., c. 1. Home has printed in a note the whole statute with the preamble, which I omit for the sake of brevity, and because it may be found in so common a book. Cha. I.— 1625-29.] FEOM HENRY VII. TO GEORGE II. 225 law, by the judgment of the Court of Ex- chequer in Bates's case. The Commons, however, were steadily detenniued not to desist till they should have rescued their fellow-subjects from a burden as unwarrant- ably imposed as those specifically enume- „ . rated in their Petition of Right. Tonnage and i i t poundage Tonnage and poundage, the cus- djsputed. tomary grant of every reign, had been taken by the present king without con- sent of Parliament, the Lords having reject- ed, as before mentioned, a b'Jl that limited it to a single year. The House now pre- pared a bill to gi'ant it, but purposely delay- ed its passing, in order to remonstrate with tlie king against his unconstitutional antici- pation of their consent. They declared " that there ought not any imposition to be laid upon the goods of merchants, exported or imported, without common consent by act of Parliament ;" that tonnage and pound- age, like other subsidies, sprung from the free gi-ant of the people ; that " when im- positions had been laid on the subjects' goods and merchandises without authority of law, which had very seldom occurred, they had, on complaint in Parliament, been forthwith relieved ; except in the late king's reign, who, through evil counsel, had raised the rates and charges to the height at which they then wei-e." They conclude, after repeating their declaration that the receiv- ing of tonnage and poundage, and other im- positions not granted by Pai'liameut, is a breach of the fundamental liberties of this kingdom, and contrai-y to the late Petition of Right, with most humbly beseeching his majestj' to forbear any further receiving of the same, and not to take it in ill part from those of his loving subjects who should re- fuse to make payment of any such charges without waiTant of law.* The king anticipated the deliveiy of this remonstrance by proroguing Parliament. Tonnage and poundage, he told them, was ■what he had never meant to give away, nor could possibly do without. By this abnipt prorogation while so great a matter was un- settled, he trod back his late footsteps, and dissipated what little hopes might have aris- en from his tardy assent to the Petition of Right. During the interval before the en- suing session, those merchants, among whom Chambers, Rolls, and Vassal are particular- Parl. Hist, 431. P ly to be remembered with honor, who gal- lantly refused to comply with the demands of the custom-house, had theu* goods dis- trained, and on suing writs of replevin, were told by the judges that the king's right, hav- ing been established in the case of Bates, could no longer be disputed.* Thus the Commons reassembled, by no means less inflamed against the king's administration than at the commencement of the preceding session. Their proceedings were conduct- ed with more than usual warmth. f Buck- ingham's death, which had occurred since the prorogation, did not allay then- resent- ment against the advisers of the crown. But the king, who had very much lowered his tone in speaking of tonnage and pound- age, and would have been content to receive it as their gi'ant, perceiving that they were bent on a fuU statutoiy recognition of the illegality of impositions without their con- sent, and that they had opened a fresh bat- tery ou another side, by mingling in certain religious disputes, in order to attack some of his favorite prelates, took the , . ' ' . The king Step, to which he was always in- dissolves the clined, of dissolving this third Parliament. The religious disputes to which I have just alluded are chiefly to be con- Religious sidered, for the present purpose, diaferences. in their relation to those jealousies and re- sentments springing out of the ecclesiastical administration, which during the reigns of the first two Stuarts furnished unceasing food to political discontent. James having early shown his inflexible determination to restrain the Puritans, the bishops proceed- ed with still more rigor than under Eliza- beth. No longer thwarted, as in her time, by an unwilling council, they succeeded in exacting a general conformity to the ordi- nances of the Church. It had been sol- emnly decided by the judges in the queen's reign, and in 1604, that although the stat- ute establishing the High Commission Court did not authorize it to deprive ministers of their benefices, yet this law being only in affirmation of the queen's inherent suprem- acy, she might, by virtue of that, regulate all ecclesiastical matters at her pleasure, and erect com'ts with such powers as she should think fit. Upon this somewhat dangerous * Rushworth, Abr., i., 409. t Pari. Hist., 441, &c. 226 CONSTITUTIONAL HISTORY OF ENGLAND [Chap. VIL principle, Archbishop Bancroft of Puritans deprived a considerable number ; by Bancroft. Puritan clergj-men ;* while many more, finding that the interference of the Commons in their behalf was not re- garded, and that all schemes of evasion were come to an end, were content to submit to the obnoxious discipline; but their affections being very little conciliated by this coercion, there remained a large party within the bo- som of the Established Church prone to watch for and magnify the eiTors of their spiritual nilers. These men preserved the name of Puritans. Austere in their lives, while many of the others were careless or : irregular, learned as a body comparatively with the opposite party, implacably averse to every thing that could be constraed into ■ an approximation to popery, they acquired a degree of respect from grave men, which would have been much more general had they not sometimes given offense by a mo- roseness and even malignity of disposition, as well as by a certain tendency to equivo- cation and deceitfulness ; faults, however, which so frequently belong to the weaker pai1y under a rigorous government, that they scarcely afford a marked reproach ! against the Puritans. They naturally fell in with the patriotic party in the House of Commons, and kept up throughout the king- dom a distrust of the crown, which has nev- er been so general in England as when con- nected with some religious apprehensions. The system pursued by Bancroft and his •Growth of imitators. Bishops Neyle and High-charch Laud, with the approbation of tenets. ^.j^^ j. j^^^^ opposed to the heal- ing counsels of Burleigh and Bacon, was * Cawdrey's Case, 5 Reports. Cro. Jac., 37. Neal, p. 432. The latter says above three hun- dred were deprived ; but Collier reduces them to forty-nine, p. 687. The former writer states the non-conformist ministers at this time in twenty -four counties to have been 754 ; of course the whole number was much greater, p. 434. This minority was considerable ; but it is chiefly to be noticed that it contained the more exemplarj- portion of the clergy, no scandalous or absolutely iUiterate in- cumbent, of whom there was a verj- large number, being a non-conformist. This general enforcement of conformity, however it might compel the major- itj"'s obedience, rendered the separation of the in- compUaut more decided. — Neal, 446. Many retir- ed to Holland, especially of the Brownist or Inde- pendent denomination — Id , 436 — and B ancroft, like his successor Laud, interfered to stop some who were setting out for Virginia. — Id., 454. just such as low-bom and little-minded men, raised to power by fortune's caprice, are ever found to pursue. They studiously aggravated every difference, and in-itated every wound. As the characteristic prej- udice of the Puritans was so bigoted an ab- horrence of the Pvomish faith that they hardly deemed its followers to deserve the name of Christians, the prevailing High- Church party took care to shock that prej- udice by somewhat of a retrograde move- ment, and various seeming, or indeed real, accommodations of their tenets to those of the abjured religion. They began by preaching the divine right, as it is called, or absolute indispensability, of episcopacy ; a doctrine of which the first traces, as I ap- prehend, are found about the end of Eliza- beth's reign.* They insisted on the neces- * Lord Bacon, in his advertisement respecting the Controversies of the Church of England, writ- ten under EUzabeth, speaks of this notion as new- ly broached. "Yea, and some indiscreet persona have been bold in open preaching to use dishonor- able and derogatory speech and censure of the churches abroad ; and that so far, as some of our men ordained in foreign parts have been pronounc- en to be no lawful ministers," vol i., p. 382. It is evident, by some passages in Strype, attentively considered, that natives regularly ordained abroad in the Presbyterian churches were admitted to hold preferment in England ; the first bishop who objected to them seems to have been Aylmer. In- stances, however, of foreigners holding preferment without any reordination, may be found down to the ci\il wars. — Annals of Reformation, ii., 522, and Appendix, 116. Life of Grindal, 271. Collier, ii., 594. Neal, i., 258. The cases of lajTnen, such as Casanbon, holding prebends by dispensation, are not in point. The divine right of episcopacy is said to have been laid down by Bancroft, in bis famous sermon at Paul's Cross, in 1588. But I do not find any thing in it to that effect. It is, however, pretty distinctly asserted, if I mistake not the sense, in the canons of 1606. — Overall's Convocation Book, 179, &c. Y'et Laud had been reproved by the Uni- versity of Oxford, in 1604, for maintaining, in hia exercise for bachelor of divinity, that there could be no true church without bishops, which was thought to cast a bone of contention between the Church of England and the Reformed upon the Con- tinent.— Heyliu's Life of Land, 54. Cranmer and some of the original founders of the Anglican Church, far from maintaining the di- vine and indispensable right of episcopal govern- ment, held bishops and priests to be the same or- der. [A learned and candid Oxford writer (Cardwell's Annals of the Church, vol. ii., p. 5) has supposed me to have overlooked a passage in Bancroft's Sermon at Paul's Cross, p. 97, where he asserts Cha. I.— 1625-29.] FROM HENRY VU. TO GEORGE II. 227 sity of episcopal succession regularly de- rived from the apostles. They drew an in- ference from this tenet, that ordinations by presbyters were in all cases null ; and as this affected all the Reformed churches in Europe except their own, the Lutherans not having presei'ved the succession of their bishops, while the Calvinists had altogether abolished that order, they began to speak of them, not as brethren of the same faith, united in the same cause, and distinguished only by differences little more material than those of political commonwealths (which had been the language of the Church of England ever since the Reformation), but as aliens to whom they were not at all re- lated, and schismatics with whom they held no communion ; nay, as wanting the very essence of a Christian society. This again brought them nearer, by irresistible conse- quence, to the disciples of Rome, whom, with becoming charity, but against the re- ceived creed of the Puritans, and perhaps against their own Articles, they all acknowl- edged to be a part of the Catholic Church, while they were withholding that appella- tion, expressly or by inference, from Hei- delberg and Geneva. The foundei-s of the English Reforma- Diffcrences tion, after abolishing most of the 'erl«,lceof" festivals kept before that time, Sunday. had made little or no change as to the mode of obsei-vance of those they re- tained. Sundays and holydays stood much on the same footing as days on which no work except for good cause was to be per- formed, the sen'ice of the Church was to be attended, and any lawful amusement might be indulged in.* A just distinction, however, soon grew up ; an industrious people could spare time for very few ho- lydays ; and the more scrupulous party, while they slighted the Church-festivals as of human appointment, presci'ibed a sti'ict- er observance of the Lord's day. But it was not till about 1595 that they began to the divine right of episcopacy. Bat, on referring again to this passage, it is perfectly evident that he says nothing about what is commonly meant by the jnre diviiio doctrine, the perpetual and indis- pensable government by bishops, confining himself to an assertion of the fact, and that in no strong terms. 1845.] * See the queen's injunctions of 1559, Somers Tracts, i., 65, and compare preamble of 5 and 6 of Ed. VI., c. 3. place it veiy nearly on the footing of the Jewish Sabbath, interdicting not only the slightest action of worldly business, but even every sort of pastime and recreation ; a system which, once promulgated, soon gained ground, as suiting their ati'abilious humor, and affording a new theme of cen- sure on the vices of the great.* Those who opposed them on the High- Church side not only derided the extravagance of the Sabbatarians, as the others were caUed, but pretended that the commandment hav- ing been confined to the Hebrews, the mod- ern observance of the first day of the week as a season of rest and devotion was an ec- clesiastical institution, and in no degree moi'e venerable than that of the other festivals or the season of Lent, which the Pm-itans stubbornly despised.f Such a controversy * The first of these Sabbatarians was a Dr. Bound, whose sermon was suppressed by Whit- gift's order. But some years before, one of Mar- tin Mar-prelate's charges against Aylmer was for playing at bowls on Sundays ; and the word Sab- bath, as applied to that day, may be found occa- sionally under Elizabeth, though by no means so usual as afterward : it is even recognized in the Homilies. Cue of Bound's recommendations was that no feasts should be given on that daj-, " ex- cept by lords, knights, and persons of quality ;'' for which unlucky reservation his adversaries did not forget to deride him. — Fuller's Church History, p. 227. This writer describes, in his quaint style, the abstinence from sports produced by this new doc- trine ; and remarks, what a slight acquaintance with human nature would have taught Archbishop Laud, that "the more liberty people were oflfered, the less they used it ; it was sport for them to re- frain from sport." — See, also, Colher, 643. Neal, 386. Strype's Whitgift, 530. May's Hist, of Par- liament, 16. t Heylin's Life of Laud, 15. Fuller, part ii., p. 76. The regulations enacted at various times since the Reformation for the observance of abstinence in as strict a manner, though not ostensibly on the same grounds, as it is enjoined in the Church of Rome, may deserve some notice. A statute of 1548 (2 and 3 Edward VI., c. 19), after reciting that one day or one kind of meat is not more holy, pure, or clean than another, and much else to the same effect, yet, "forasmuch as divers of the king's subjects, turning their knowledge therein to gi-ati- fy their sensuality, have of late, more than in times past, broken and contemned such abstinence, which hath been used in this realm upon the Fridays and Saturdays, the embering days, and other days com- monly called vigils, au4 in the time commonly called Lent, and other accustomed times ; the king's majesty, considering that due and godly ab- stinence is a mean to virtue, and to subdue men's bodies to their soul and spirit, and considering, 22S COXSTITUTIOXAL HISTORY OP EN&I/AND [Chap. VIL might well have been left to the usual weap- ons. But James I., or some of the bishops also, especially that fishers and men using the trade of fishing in the sea may thereby the rather be set on work, and that by eating of fish much flesh shall be saved and increased," enacts, after repealing all existing lavrs on the subject, that such as eat flesh at the forbidden seasons shall in- cur a penalty of ten shillings, or ten days' impris- onment without Jiesh, and a double penalty for the second offense. The next statute relating to abstinence is one (.5th Eliz., c. .5) entirely for the increase of the fish- erj'. It enacts, $ 15, &c., that no one, unless hav- ing a license, shall eat flesh on fish-days, or on Wednesdays, now made an additional fish-day, un- der a penalty of £3, or three months' imprison- ment ; except that every one having three dishes of sea-fish at his table, might have one of flesh also. But " because no manner of person shall misjudge of the intent of this statute," it is enacted, that ■whosoever shall notify that any eating of fish or for- bearing of flesh mentioned therein is of any neces- % sit3^ for the saving of the soul of man, or that it is the service of God, otherwise than as other politic laws are and be, that then such persons shall be punish- ed as spreaders of false news, § 39 and 40. The act 27th Eliz., c. 11, repeals the prohibition as to ■Wednesday, and provides that no victuallers shall vend flesh in Lent, nor upon Fridays or Saturdays, tmder a penaltj-. The 3.5th Eliz., c. 7, { 22, reduces the penalty of £3, or three months' imprisonment, enacted by 5th of Eliz., to one third. This is the latest statute that appears on the subject. Many proclamations appear to have been issued in order to enforce an observance so little congeni- al to the propensities of Englishmen. One of those in the first year of Edward was before any stat- ute ; and its very words respecting the indiffer- ence of meats in a religious sense were adopted by the Legislature the next year. — Strype's Ec- cles. Memor., ii., 81. In one of Elizabeth's, A.D. 1572, as in the statute of Edward, the political mo- tives of the prohibition seem in some measure as- sociated with the superstition it disclaims ; for eat- ing in the season of Lent is called '• licentious and carnal disorder, in contempt of God and man, and only to the satisfaction of devilish and canial appe- tite ;" and butchers, &c., "ministering to such fonl lust of the flesh," were severely mulcted. — Strj-pe's Annals, ii., 208. But in 1576 another proclamation to the same effect Uses no such hard words, and protests strongly against any superstitious inter- pretation of its motives. — Life of Grindal, p. 226. So, also, in 1579, Stiype's Annals, ii., 608, and, as far as I have observed, in all of a later date, the encouragement of the navy and fishery is set forth as their sole ground. In 1596, Whitgift, by the queen's command, issued letters to the bishops of his province, to take order that the fasting days, Wednesday and Friday, should be kept, and no suppers eaten, especially on Friday evens. This was on account of the great dearth of that and the preceding year. — Strj-pe's Whitgift. p. 490. These proclamations for the obser\-ance of Lent continu- to whom he listened, bethought themselves that this might serve as a test of Puritan ministers. He published, accordingly, a declaration to be read in churches, permit- ting all lawful recreations on Sunday after divine service, such as dancing, archery, May-games, and momce-dances, and other usual sports ; but with a proliibition of bear- baiting and other vmlawful games. No re- cusant, or any one who had n9t attended the Church-service, was entitled to this privi- lege ; which might consequently be regard- ed as a bounty on devotion. The severe Puritan saw it in no such point of view. To his cynical temper. May-games and mon-ice-dances were hardly tolerable on six days of the week ; they were now rec- ommended for the seventh. And this im- pious license was to be promulgated in the Church itself. It is indeed difficult to ex- plain so unnecessary an insult on the pre- ed under James and Charles, as late, I presume, as the commencement of the civil war. They were diametrically opposed to the Puritan tenets ; for, notwithstanding the pretext about the fishery, there is no doubt that the dominant ecclesiastics maintained the obserN-ance of Lent as an ordinance of the Church ; but I suspect that httle regard was paid to Friday and Saturday as days of weekly fast. — RjTuer, xvii., 131, 134, 349 ; xviii., 268, 282, 961. This abstemious sj-stem, however, was only com- pulsory on the poor. Licenses were easily obtain- ed by others from the privj--council in Edward's daj-s, and afterward from the bishop. They were empowered, with their guests, to eat flesh on all fasting days for life. Sometimes the number of guests was limited. Thus the Marquis of Win- chester had permission for twelve friends ; and John Sandford, draper of Gloucester, for two. — Strj-pe's Memorials, ii., 82. The act above men- tioned for encouragement of the fishery, 5th Eliz., c. 5, provides that £.\ 6s. 8(i. shall be paid for granting every license, and 6s. 8d. annually after- ward, to the poor of the parish ; but no license was to be granted for eating beef at any time of the year, or veal from Michaelmas to the 1st of Maj". A melancholy privation to our countrjTnen ! but, I have no doubt, little regarded. Strype makes known to ns the interesting fact, that Am- brose Potter, of Gravesend, and his wife, had per- mission fi-om Archbishop Whitgift " to eat flesh and white meats in Lent, during their lives : so that it was done soberly and frugally, cautiously, and avoiding public scandal as much as might be, and giving 6s. Bd. annually to the poor of the parish." —Life of Whitgift, 246. The civil wars did not so put an end to the com- pulsory observance of Lent and fish-days but that similar proclamations are found after the Restora- tion, I know not how long. — Kennet's Register, p. 367 and 588. Cha. I.— 1625-29.] FROM HENRY VII. TO GEORGE 11. 229 cise clergy, but by supposing an intention to harass those who should refuse compli- ance.* But this intention, from whatever cause, perhaps thi'ough the influence of Archbishop Abbot, was not carried into ef- fect, nor was the declaration itself enforced till the following reign. The House of Commons displayed their attachment to the Puritan maxims, or theu" dislike of the prclatical clergy, by bringing in bills to enforce a greater strictness in this respect. A circumstance that occurred in the session of 1621 will serve to prove their fanatical violence. A bill having been brought in " for the better observance of the Sabbath, usually called Sunday," one Mr. Shepherd, sneering at the Puritans, remarlvcd that, as Saturday was dies Sab- bati, this might be entitled a bill for the ob- servance of Saturday, commonly called Sun- day. This witticism brought on his head the wrath of that dangerous assembly. He was reprimanded on his knees, expelled the House, and when he saw what befell poor Floyd, might deem himself cheaply saved from their fangs with no worse chastise- ment.f Yet when the Upper House sent down their bill with " the Lord's day" sub- stituted for " the Sabbath," observing " that people do now much incUne to words of Judaism," the Commons took no excep- tion.t The use of the word Sabbath in- stead of Sunday became in that age a dis- tinctive mark of the Puritan party. * Wilson, 709. t Debates in Parliament, 1621, vol. i., p. 45, 52. The king requested tliem not to pass this bill, be- ing so directly again.?! his proclamation. — Id., 60. Shepherd's expulsion is mentioned in Mede's Let- ters, Harl. MSS., 389. X Vol. ii., 97. Tvro acts were passed, 1 Car. I., c. 1, and 3 Car. I., c. 2, for the better observance of Sunday, the former of which gave great annoy- ance, it seems, to the orthodox party. " Had any such bill," says Heylin, "been offei'ed in King James's time, it would have found a sony welcome ; but this king, being under a necessity of compli- ance with them, resolved to grant them their de- sires in that parliculai-, to the end that they might grant his also in the aid required, when that ob- struction was removed. The Sabbatarians took the benefit of this opportunity for the obtaining of this grant, the &st that ever they obtained by all their strugglings, which of what consequence it was we shall see hereafter." — Life of Laud, p. 129. Vet this statute permits the people lawful sports and pastimes on Sundays within their own par- ishes. A far more permanent controversy sprang up about the end of the same Arminian reign, which afforded a new pre- onro^'ersy. text for intolerance, and a fresh source of mutual hatred. Every one of my readers is acquainted more or less with the theolog- ical tenets of original sin, free will, and pre- destination, variously taught in the schools, and debated by polemical writers for so many centuries ; and few can be ignorant that the articles of our own Church, as they relate to these doctrines, have been very differently interpreted, and that a conti'o- versy about their meaning has long been carried on with a pertinacity which could not have continued on so limited a topic, had the combatants been merely influenced by the love of truth. Those who have no bias to warp their judgment, will not, per- haps, have much hesitation in drawing their line between, though not at an equal dis- tance between, the conflicting parties. It appears, on the one hand, that the articles are worded on some of these doctrines with considerable ambiguity, whether we attrib- ute this to the intrinsic obscurity of the subject, to the additional difficulties with which it had been entangled by theological systems, to discrepancy of opinion in the compilers, or to their solicitude to prevent disunion by adopting formularies which men of different sentiments might subscribe. It is also manifest that their framers came, as it were, with averted eyes to the Augus- tinian docti-ine of predestination, and wisely reprehended those who turned their atten- tion to a system so pregnant with objec- tions, and so dangerous, when needlessly dwelt upon, to all practical piety and virtue. But, on the other hand, this very reluctance to inculcate the tenet is so expressed as to manifest their undoubting belief in it ; nor is it possible either to assign a motive for inserting the seventeenth article, or to give any reasonable interpretation to it, upon the theory which at present passes for orthodox in the English Church. And upon other subjects intimately related to the former, such as the penalty of original sin and the depravation of human nature, the articles, after making every allowance for want of precision, seem totally iireconcilable with the scheme usually denominated Arminian. The force of those conclusions, which we must, in my judgment, deduce from the 230 CONSTITUTIONAL HISTORY OF EXGLAXD [Chap. VIL language of these articles, will be material- ly increased by that appeal to cotemporary and other early authorities, to which re- course has been had in order to invalidate them. Whatever doubts may be raised as to the Calvinism of Cranmer and Ridley, there can surely be no room for any as to the chiefs of the Anglican Church under Elizabeth. We find explicit proofs that Jewell, Nowell, Sandys, Cox, professed to concur with the Reformers of Zurich and Geneva in every point of doctrine.* The works of Calvin and Bullinger became text- books in the English universities. f Those who did not hold the predestinarian theoiy were branded with reproach by the names of freewillers and Pelagians. J And when the opposite tenets came to be advanced, as they were at Cambridge about 1590, a clamor was raised as if some unusual here- sy had been broached. Whitgift, with the concurrence of some other prelates, in or- der to withstand its progress, published what were called the Lambeth Articles, containing the broadest and most repulsive declaration of all the Calvinistic tenets : but. Lord Bm-leigh having shown some disap- probation, these articles never obtained any legal sanction. § These more rigorous tenets, in fact, espe- cially when so crudely announced, were beginning to give way. They had been al- ready abandoned by the Lutheran Church. They had long been opposed in that of Rome by the Franciscan order, and latter- ly by the Jesuits. Above all. the study of the Greek fathers, with whom the first Re- formers had been little conversant, taught the divines of a more learned age, that men of as high a name as Augustin, and whom they were prone to overvalue, had enter- tained very different sentiments. || Still the novel opinions passed for heterodox, and * Without loading the pa?e with too many ref- erences on a suhject so little connected with this work, I mention Strype s .Annals, vol. i., p. 118, and a letter from Jewell to P. Martyr, in Bamet, voL iii., Appendix. 275. f Collier, 568. t Strype s Annals, i., 207, 294. 9 Strype s Whitgift, 434-472. 11 It is admitted on all hands that the Greek fa- thers did not inculcate the predestinarian system. Elizabeth having begun to read some of the fathers. Bishop Cox writes of it with some disapprobation, adverting especially to the Pelagianism of Chrj-s- ostom and the other Greeks. — Strype's Annals, i., 324. were promulgated with much vacillation and indistinctness. When they were pub- lished in unequivocal propositions by Ar- minius and his school, James declared him- self with vehemence against this heresy.* He not only sent English divines to sit in the Synod of Dort, where the Calvinistic I system was fully established, but instigated , the proceedings against the remonstranta j with more of theological pedantry than charity or decorum. f Yet this inconsist- ' ent monarch within a very few years was j so wrought on by one or two favorite ec- I clesiastics, who inclined toward the doc- trines condemned in that assembly, that openly to maintain the Augustinian system became almost a sure means of exclusion from preferment in our Church. This was carried to its height under Charles. Laud, his sole counselor in ecclesiastical matters, advised a declaration enjoining silence on the controverted points ; a measure by no means unwise, if it had been fairly acted upon. It is alleged, however, that the preachers on one side only were silenced, ' the printers of books on one side censured ] in the Star Chamber, while full scope was indulged to the opposite sect. J * Winwood, iii., 293. The intemperate and even impertinent behavior of James, in pressing the States of Holland to inflict some censure or [ punishment on Vorstius, is well known. But, 1 though Vorstius was an Arminiau, it was not pre- ' cisely on accoimt of those opinions that he incurred the king's peculiar displeasure, bat for certain propositions as to the nature of the Deity, which James called atheistical, but which were, in fact, Arian. The letters on this subject in Winwood . are curious. Even at this time the king is said to I have spoken moderately of predestination as a du- bious point, p. 452, thoTigh he had treated Armini- j us as a mischievous innovator for raising a ques- . tion about it ; and this b confirmed by his letter to ' the States in 1613 — Brandt, iii., 129, and see p. 138. See Collier, p. 711, for the king's sentiments I in 1616 ; also, Brandt, iii.. 313. I t Sir Dudley Carleton's Letters and Negotia- tions, passim. Brandt's History of Reformation in Low Countries, vol. iii The English divines sent to this synod were decidedly inclined to Calvinism, but they spoke of themselves as deputed by the kin^'. not by the Church of England, which they did not represent. t There is some obscurity about the rapid tran- sition of the court from Calvinism to the opposite I side. It has been supposed that the part taken by I James at the Synod of Dort was chiefly political, with a view to support the house of Orange against the party headed by Bamevelt. But he was so much more of a theolosian than a statesman, that t Cha. I. -1625-29.] PnOM HEXRY VU. TO GEOKGE II. 231 The House of Commons, especially in their last session, took up the increase of Arminianism as a public gi-ievance. It was coupled in their remonstrances with po- pery, as a new danger to religion, hardly less terrible than the former. This bigoted clamor arose in part from the nature of their own Calvinistic tenets, which, being still prevalent in the kingdom, would, iude- pendently of all political motives, predomi- nate in any popular assembly. But they had a sort of excuse for it in the close, though accidental and temporary, connec- tion that subsisted between the partisans of these new speculative tenets and those of arbitrary power, the churchmen who re- I mach doubt whether this will account satisfacto- rily for his zeal in behalf of the Gomarists. He wrote on the subject with much polemical bitter- ness, but without reference, so far as I have ob- served, to any political faction ; though Sir Dudley Carleton's letters show that he contemplated the matter as a minister ought to do. Heyliu intimates that the king grew " more moderate afterward, and into a better liking of those opinions which he had labored to condemn at the Synod of Dort." — Life of Laud, 120. The court language, indeed, shifted so very soon after this, that Antonio de Dominis, the famous half-converted Archbishop of Spalato, is said to have invented the name of Doc- trinal Puritans for those who distinguished them- selves by holding the Calvinistic tenets. Yet the Synod of Dort was in 1613, while De Dominis left England not later than 1622. Buckingham seems to have gone very warmly into Laud's scheme of excluding the Calvinists. The latter gave him a list of divines on Charles's accession, distinguishing their names by O. and P. for Orthodox and Puri- tan, including several tenets in the latter denomi- nation besides those of the quinquarticular contro- versy, such as the indispensable observance of the Lord's day, the indiscrimination of bishops and presbyters, 4cc. — Life of Laud, 119. The influence of Laud became so great, that to preach in favor of Calvinism, though commonly reputed to be the doctrine of the Church, incurred punishment in any rank. Davenant, bishop of Sahsburj', one of the divines sent to Dort, and reckoned among the prin- cipal theologians of that age, was reprimanded on bis knees before the pri\'y-council for this offense. — Collier, p. 750. But in James's reign, the Uni- versity of Oxford was decidedly Cal\-inistia A preacher about 1633. having used some suspicious expressions, was compelled to recant them, and to maintaia the following theses in the di\-inity school : Decretum praedestinationis non est conditionale. — Gracia sufEciens ad salutem non conceditur omni- bus.— Wood, ii.. 348. And I suppose it continued BO in the next reign, so far as the university's opin- ions could be manifested. But Laud took care that no one should be promoted, as far as he could help it, who held these tenets. ceded most from Calvinism being generally the zealots of prerogative. They conceiv- ed, also, that these theories, conformable in j the maui to those most countenanced in the 1 Church of Rome, might pave the way for j that restoration of her faith which from so many other quarters appeared to thi-eatea them. Nor was this last apprehension so destitute of all plausibility tis the advocates of the first two Stuaits have always pre- tended it to be. James, well instructed in the theology of the Reformers, and inured himself state of to controversial dialectics, was far removed in point of opinion from James, any bias toward the Romish creed. But he had, while in Scotland, given rise to some suspicions at the court of Elizabeth, by a Uttle clandestine coquetiy with the pope, wlilch he fancied to be a politic means of disarming enmity.* Some knowledge * 'Wmwood, vol. i., p. 1, 52, 388. Lettres d'Os- sat, i., 221. Birch's Negotiations of Edmondes, p. 36. These references do not relate to the letter said to have been forged in the king's name, and addressed to Clement VIII. by Lord Balmerino. But Laing, Hist, of Scotland, iii., 59, and Birch's Negotiations, &c., 177, render it almost certain that this letter was genuine, which, indeed, has been generally believed by men of sense. James was a man of so little consistency or sincerity, that it is difficult to solve the problem of this clandestine intercourse. But it might verj- likely proceed from his dread of being excommunicated, and, in consequence, assassinated. In a proclamation, commanding all Jesuits and priests to quit the [ realm, dated in 1603, he declares himself personal- ly " so much beholden to the new Bishop of Home I for his kind office and private temporal carriage to- ward us in many things, as we shall ever be ready : to requite the same toward lika as Bishop of Rome in state and condition of a secular prince." — Ry- mer, xvi., 573. This is explained by a passage in the memoirs of Sully (1. 15). Clement VLII., though before EUzabeth's death he had abetted the proj- ect of placing Arabella on the throne, thought it expedient, after this design had failed, to pay some court to James, and had refused to accept the ded- ication of a work written against him, besides, probably, some other courtesies. There is a letter fi-om the king addressed to the pope, and probably written in 1603, among the Cottouian MSS., Nero, B. vi., 9, which shows his disposition to coax and coquet with the Babylonian, against whom he so much inveighs in liis printed works. It seems that Clement had so far presumed as to suggest that the Prince of Wales should be educated a Catho- lic, which the king refuses, but not in so strong a manner as he should have done. I can not recol- lect whether this letter has been printed, though I can scarcely suppose the contrarj'. Persons him- 232 COXSTITUTIOXAL HISTORY OF EXGLAXD [Chap. VIL ofthis, probably, as well as his avowed dis- like of saDgainary persecution, and a fool- ish reliance on the trifling circumstance that one, if not both, of his parents had profess- ed their religion, led the English Catholics to expect a great deal of indulgence, if not support, at his hands. This hope might re- ceive some encoui-agement from his speech on opening the Parliament of 1604. wherein he intimated his design to revise and explain the penal laws, '-which the judges might perhaps," he said. •• in times past have too rigorously interpreted." But the temper of those he addressed was very different. The Catholics were disappointed by an act inflicting new penalties on recusants, and especially debarring them from educating their children according to their conscien- ces.* The administration took a sudden turn toward severity ; the prisons were filled, the penalties exacted, several suffer- JeaionsT of ed death.' and the general help- fltoT^ ^ lessness of their condition impell- ward:iiem. ed a few persons (most of whom had belonged" to what was called the Span- ish party in the last reign) to the gmjpow- der conspiracy, unjustly imputed to the majority of Catholics, though perhaps ex- self befan to praise the works of James, and show mncb hope of what he would do. — Cotton, Jul., B. vi., 77. The severities against Catholics seem at first to have been practically mitigated. — Win wood. ii.. 78. Archbishop Hatton wrote to Cecil, complain- ing of the toleration CTanted to papists, while the Pmitans were severely treated. — Id., p. 40. Lodse, iii., 2-51. "The former." he says, "partly by this roond dealing with the Puritans, and partly by Eome extraordinary favor, had grown mightily in number, courage, and influence." '"If the Gospel shall quail, and popery prevail, it will be imputed principfHy unto your great counselors, who either procure or yield to grant toleration to some.'' James told some gentlemen who petitioned for tol- eration, diat the utmost they could expect was connivance. — Carte, iii.. 711. This seems to have been what he intended through his reign, till im- portuned by Spain and France to promise more. * 1 Jac- I., c. 4. The penalties of recusancy were particularly hard upon women, wha as I have observed in another place, adhered longer to the old religion than the other sex : and still more so upon those who had to pay for their scruples. It was proposed in Parliament, but with the usual fate of humane suggestions, that husbands going to church should not be Kable for their wives' recusan- cy.— Carte. 754. But they had the alternative af- terward, by 7 Jac. L. c. 6, of letting their wives lie in prison or paying XlO a month. t Linsard, ix., 41, 55. I tending beyond those who appeared in it,* We can not wonder that a Parliament so I ! * From comparing some passages in Sir Charles [ Comwallis's dispatches, Winwood, vol ii., p. 143, I 144, 15-3, with others in Birch's account of Sir Thom- as Edmondes's negotiations, p. 233, et seq.. it ap- pears that the English Catholics were looking for- ward at this time to some crisis in their favor, and that even the court of Spain was influenced by their hopes. A letter from Sir Thomas Parry to Edmondes, dated at Paris, lOtii Oct.. 1603, is re- markable : ■' Our priests are very busy about pe- titions to be exhibited to the king's majesty at this Parliament, and some further designs upon refusal These matters are secretly managed by iutelli- ! gence with their colleagues in those parts where you reside, and with the two nuncios. I think it were necessary for his majesty's service that yoa found means to have privy spies among diem, to discover their negotiations. Something is at pres- ent in hand among these desperate hypocrites, which I trust God shall divert by the vigilant care of his majesty's faithful servants and friends abroad, and prudence of his council at home." — Birch, p. 233. There seems, indeed, some ground for suspi- ' cion that the nuncio at Brussels was privy to the conspiracy, though this ought not to be asserted as an historical fact. 'Whether the offense of Garnet went beyond misprision of treason has been much controverted. The Catholic writers maintain that he had no knowledge of the conspiracy, except by having heard it in confession. But this rests alto- gether on his word : and the prevarication of which he has been proved to be guilty (not to raentioa the damning circumstance that he was taken at ^ Hendlip in concealment along with the other con- spirators i makes it difBcult for a candid man to ac- quit him of a thorough participation in their gailt. Compare Townsend's Accusations of History against the Church of Rome ( l*-25'. p. 247, costaki- ing extracts from some important documents in the State Paper Office, not as yet published, with State Trials, vol. iL : and see Lingard, ix., 160, ic. Yet it should be kept in mind that it was easy for a few artful persons to keep on the alert by indis- tinct communications a credulous multitude whose daily food was rumor: and the general hopes rf the English Romanists at the moment are not evi- dence of their privity to the gunpowder treason, which was probably contrived late, and imparted to very few. But to deny that there was such a plot, or, which is the same thing, to throw the whole on the contrivance and management of Ce- cil, as has sometimes been done, argues great et fiontery in those who lead, and great stupidity in those who follow. The letter to Lord Monteagle, the discovery of the powder, the simultaneous ris- ing in arms in Warwickshire, are as indisputable as any facts in history. What. then, had Cecil to ' do with the plot except that he hit upon the clew ' to tbe dark allusions in the letter to Monteagle. of I which he was courtier enough to let the king take I the credit ? James's admirers have always reck- oned this, as he did himself a vast proof of sagac- I itv : vet there seems no sreat acuteness in tbe dis- Cha. I.— 1G25-29.] FROM HENRY VII. TO GEORGE II. 233 narrowly rescued from personal destructiou endeavored to draw the cord still tighter round these dangerous enemies. The stat- ute passed on this occasion is by no means more harsh than might be expected. It re- quired not only attendance on worship, but participation in the communion, as a test of conformity, and gave an option to the king of taking a penalty of a month from recusants, or two thirds of their lands. It prescribed also an oath of allegiance, the refusal of which incurred the penalties of a praemunire. This imported that, notwith- standing any sentence of deprivation or excommunication by the pope, the taker would bear true allegiance to the king, and defend him against any conspiracies which should be made by reason of such sentence or othei"wise, and do his best endeavor to disclose them ; that he from his heart ab- horred, detested, and abjured as impious and heretical, the damnable doctrine and position that princes, excommunicated or deprived by the pope, may be deposed or murdered by their subjects, or any other whatsoever ; and that he did not believe that the pope or any other could absolve him from this oath.* Except by cavilling at one or two words, it seemed impossible for the Roman Catho- lics to decline so reasonable a test of loyal- covery, even if it had been his own. He might have recollected the circumstance of his father's catastrophe, wliich would naturally put him on the scent of gTinpowder. In point of fact, however, the liappy conjecture appears to be Cecil's. — Win- wood, ii., 170. But had he no previous hint ? See Lo- of Oxford, ii., 341. Knight was sent to the Gate-house Prison, where he remained two years. Laud was the chief cause of lliis se- veritj-, if we may believe Wood; and his own dia- ry" seems to confirm this. Cha. I.— 1625-29.] FROM HENRY VII. TO GEORGE 11. 239 to their imperial crowns from their birth."* These extravagances of rather obscure men would have passed with less notice, if the government had not given them the most indecent encouragement. Abbot, archbish- op of Canterbuiy, a man of integrity, but upon that account, as well as for his Calvin- istic partialities, long since obnoxious to the courtiers, refused to license Sibthorp's ser- mon, alleging some unwarrantable passages which it contained. For no other cause than this, he was sequestered from the ex- ercise of his archiepiscopal jurisdiction, and confined to a countiy-house in Kent.f The House of Commons, after many complaints of those ecclesiastics, finally proceeded against Mainwaring by impeachment at the bar of the Lords. He was condemned to pay a fine of c£1000, to be suspended for three years from his ministiy, and to be in- capable of holding any ecclesiastical dignity. • Pari. Hist., 877, 395, 410, Sec. Kennet, p. 30. Collier, 740, 743. This historian, though a non ju- ror, is Englishman enough to blame the doctrines of Sibthorp and Mainwaring, and, consistently with his High-Churcli principles, is displeased at the suspension of Abbot by the king's authority. t State Trials, ii., 1449. A few years before this, Abbot had tlie misfortune, while hunting deer in a nobleman's park, to shoot one of the keepers with his cross-bow. Williams and Laud, who then acted together, with some others, affected scruples at the archbishop's continuance in his function, on pretense that, by some old canon, he had become irregular in consequence of this accidental homi- cide ; and Spclman disgraced himself by writing a treatise in support of this doctrine. James, how- ever, liad more sense than the antiquary, and less ill-nature than the churclmien ; and tlie civilians gave no countenance to Williams's hypocritical scruples. — Racket's Life of Williams, p. 651. Bi- ograph. Britann., art. Abbot. Spelman's Works, part ii., p. 3. Aikin's James I., ii., 259. Williams's real object was to succeed the archbishop on his degradation. It may be remarked that Abbot, though a very •worthy man, had not always been untainted by the air of a court. He had not scrupled grossly to flat- ter the king (see his article in Biograph. Brit., and Aikin, i., 368) ; and tells us himself that he introdu- ced 'Villiers in order to supplant Somerset, which, though well meant, did not become his function. Even in the delicate business of promising tolera- tion to the Catholics by the secret articles of the treaty with Spain, he gave satisfaction to the king (Hardwicke Papers, i., 428), which could only be by comi)liance. This shows that the letter in Rush- worth, ascribed to the archbishop, deprecating all such concessions, is not genuine. In Cabala, p. 13, it is printed with the name of the Archbishop of York, Mathews. Yet the king almost immediately pardoned Mainwaring, who became in a few years a bishop, as Sibthorp was promoted to an in- ferior dignity.* There seems, on the whole, to be very little ground for censure in the pro- General ceedings of this illustrious Parlia- f^n'^rks. ment. I admit that, if we believe Charles the First to have been a gentle and benefi- cent monarch, incapable of harboring any design against the liberties of his people, or those who stood forward in defense of their privileges, wise in the choice of his coun- selors, and patient in listening to them, the Commons may seem to have carried their opposition to an unreasonable length ; but if he had shown himself possessed with such notions of his own prerogative, no matter how derived, as could bear no effective con- trol fi'om fixed law or from the nation's rep- resentatives ; if he was hasty and violent in temper, yet stooping to low arts of equivo- cation and insincerity, whatever might be his estimable qualities in other respects, they could act, in the main, no othenvise than by endeavoring to keep him in the power of Parliament, lest his power should make Parliament but a name. Eveiy pop- ular assembly, tinly zealous in a great cause, will display more heat and passion than cool- blooded men after the lapse of centuries may wholly approve. | But so far were * The bishops were many of them mere syco- phants of Buckingham. Besides Laud, Williams, and Neyle, one Field, bishop of Llandaff', was an abject courtier. See a letter of his in Cabala, p. 118, 4to edit. Mede says (27th May, 162G), " I am sorry to hear they (the bishops) are so habituated to flattery that they seem not to know of any oth- er duty that belongs to them." — See Ellis's Let- ters, iii., 228, for the account Mede gives of the manner in which the heads of houses forced the election of Buckingham as Chancellor of Carabridge, while the impeachment was pending against him. The junior masters of arts, however, made a good stand, so that it was carried against the Earl of Berkshire only by three voices. t Those who may be inclined to dissent from my text will perhaps bow to their favorite Clarendon. He says that in the first three Parliaments, though there were "several distempered speeches of par- ticular persons, not fit for the reverence due to his majesty," yet he "does not know any fomied act of either House (for neither the remonstrance nor votes of the last day were such) that was not agree- able to the wisdom and justice of great courts upon those extraordinary occasions ; and whoever con- siders the acts of power and injustice in the inter- vals of Parliament, wiU not be much scandalized at 240 COXSTITUTIOXAL HISTOEY OF EXGIAND [Chap. VIIL they from encroaching, as our Tory writ- ers pretend, on the just powers of a limited monarch, that they do not appear to have conceived, they at least never hinted at, the securities without which all they had ob- tained or attempted Avould become ineffect- ual. No one member of that House, in the utmost warmth of debate, is recorded to have suggested the abolition of the Court of Star Chamber, or any provision for the periodical meeting of Parhament. Though such remedies for the gi'eatest abuses were in reality consonant to the actual unrepealed law of the land, yet, as they implied, in the apprehension of the generality, a retrench- ment of the king's prerogative, they had not yet become familiar to their hopes. In as- serting the illegality of arbitraiy detention, of compulsory loans, of tonnage and pound- age levied without consent of Parliament, they stood In defense of positive rights won by their fathers, the prescriptive inheritance of Enghshmen. Twelve years more of re- peated aggi'essions taught the Long Parlia- ment what a few sagacious men might per- haps have already suspected, that tliey must recover more of their ancient Constitution from oblivion ; that they must sustain its partial weakness by new securities ; that, in order to render the existence of monar- chy compatible with that of freedom, they must not only strip it of all it had usurped, but of something that was its own. CHAPTER VIII. FROM THE DISSOLUTION OF CHARLES'S THIRD PARLIAMENT TO THE MEET- ING OF THE LONG PARLIAMENT. Declaration of the King after the Dissolution. — Prosecutions of Ehot and others for Conduct in Parliament. — Of Chambers for refusing to pay Customs. — Commendable Beha%'ior of Judges in Bome Instances. — Means adojited to raise the Revenue. — Compositions for Knighthood. — For- est L aws. — Monopolies. — Ship-money — E xten- sion of it to inland Places. — Hampden's Refusal to pay. — Arguments on the Case. — Proclama- tions.— Various arbitrarj- Proceedings. — Star Chamber Jurisdiction. — Punishments inflicted Ijy it. — Cases of Bishop Williams, Prynne, ic. — Laud, his Character. — Lord Strafford. — Cor- respondence between these two. — Conduct of Laud in the Church Prosecution of Puritans. — Favor sliown to Catholics. — Tendency to their ReUgion. — Expectations entertained by them— Mission of Panzani. — Intrigue of Bishop Mon- tagu with him. — ChUliugworth. — Hales. — Character of Clarendon's Writings. — Animad- versions on his Account of this Period. — Scots Troubles, and Distress of the Government. — Parliament of April, 1640.— Council of York. — Convocation of Long Parliament. The dissolution of a Parliament was al- Declaration ways to the prerogative what the afte^^the"^ dispersion of clouds is to the sun. dissolution. As if in mockcry of the transient obstraction, it shone forth as splendid and scorching as before. Even after the exer- tions of the most popular and intrepid House of Commons that had ever met, and after the warmth and vivacity of thoee meetings." — Vol. i., p. 8, edit. 1826. the most important statute that had been passed for some hundred years, Charles found himself in an instant unshackled by his law or his word — once more that abso- lute king, for whom his sycophants had preached and pleaded, as if awakened from a fearful dream of sounds and sights that such monarchs hate to endure, to the full enjoyment of an unrestrained prerogative. He announced his intentions of government for the future in a long declaration of the causes of the late dissolution of Parliament, which, though not without the usual prom- ises to maintain the laws and liberties of the people, gave evident hints that his own interpretation of them must be humbly ac- quiesced in.* This was followed up by a proclamation that he " should account it presumption for any to prescribe a time to him for Parliament, the calling, continuing, or dissolving of which was always in his own power ; and he should be more inclin- able to meet Parliament again, when his people should see more clearly into his in- • " It hath so happened," he says, " by the dis- obedient and seditious carriage of those said ill- affected persons of the House of Commons, that we and our regal authority and commandment have been so highly contenmed as our kingly office can not bear, nor any former age can parallel.'' — Ry- mer, xix., 30. Cha. 1.-1629-40 ] FBOM HENRY VII. TO GEOHGE U. 241 tents and actions, when such as have bred this iuterruptiou shall have received their condign punishment." He aftemard de- clai'es that he should " not overcharge his subjects by any more burdens, but satisfy himself with those duties that were receiv- ed by his father, which he neither could nor would dispense with, but should esteem them unworthy of his protection who should deny them."* The king next turned his mind, according Prosecutions ^0 his owu and his father's prac- of Eliot and tjce, to take vengeance on those others for i i t i - • i • conduct in who had been most active in their Parliament, opposition to him. A few days after tlie dissolution, Sii- John Eliot, HoUis, Selden, Long, Strode, and other eminent members of the Commons, were commit- ted, some to the Tower, some to the King's Bench, and their papers seized. Upon su- ing for tlieir habeas corpus, a return was made that they were detained for notable contempts, and for stirring up sedition, al- leged in a warrant under tlie king's sign manual. Their counsel argued against the sufficiency of this return, as well on the principles and precedents employed in the former case of Sir Thomas Darnel and his colleagues, as on the late explicit confirma- tion of them in the Petition of Right. The king's counsel endeavored, by evading the authority of that enactment, to set up anew that alarming pretense to a power of arbi- trary imprisonment, which the late Parlia- ment had meant to silence forever. " A petition in Parliament," said the Attorney- general Heath, " is no law, yet it is for the honor and dignity of the king to observe it faithfully : but it is the duty of the people not to stretch it beyond the words aud in- tention of the king. And no other con- stniction can be made of the petition, than that it is a confirmation of the ancient liber- ties and rights of the subjects : so that now the case remains in the same quality and de- gree as it was before the petition." Thus, by dint of a sophism which turned into rid- icule the whole proceedings of the late Par- liament, he pretended to recite afresh the authorities on which he had formerly re- lied, in order to prove that one committed by the command of the king or privy coun- cil is not bailable. The judges, timid and servile, yet desirous to keep some measures * Bymer, xix., 62. Q with their own consciences, or looking for- ward to the wrath of future Parliaments, wrote what Whitelock calls "a humble and stout letter" to the king, that they were bound to bail the prisoners, but requested that he would send his direction to do so.* The gentlemen in custody were, on this in- timation, removed to the Tower; and the king, in a letter to the court, refused per- mission for them to appear on the day when judgment was to be given. Their restraint was thus proti'acted through the long vaca- tion, toward the close of which, Charles, sending for two of the judges, told them he was content the prisoners should be bailed, notwithstanding their obstinacy in refusing to present a petition, declaring their sorrow for having olfended him. In the ensuing Michaelmas term, accordingly, they were brought before the court, and ordered not only to find bail for the present charge, but sureties for their good behavior. On refus- ing to comply with this requisition, they were remanded to custody. The attoi'ney-general, dropping the charge against the rest, exhibited an infor- mation against Su" John Eliot for words ut- tered in the House, namely, That the coun- cil and judges had conspired to trample un- der foot the liberties of the subject; and against Mr. Denzil Hollis and Mr. Valen- tine for a tumult on the last day of the ses- sion, when the speaker having attempted to adjourn the House by the king's com- mand, had been forcibly held down in the chair by some of the members while a re- monsti-ance was voted. They pleaded to the court's jurisdiction, because their offens- es were supposed to be committed in Par- liament, and consequently not punishable in any other place. This brought forward the great question of privilege, on the de- termination of which the power of the House of Commons, and, consequently, the character of the English Constitution, seem- ed evidently to depend. * Whitelock's Memorials, p. 14. Whitelock's father was oue of the judges of the King's Bench: his son takes pains to excalpate him from the charge of too much compliance, and succeeded so veell with the Long Parliament, that when they voted Chief-justice Hyde and Justice Jones guilty of delay in not bailing these gentlemen, they voted also that Croke and Whitelock were not guilty of it. The proceedings, as we now read them, hard- ly warrant this favorable distinction. — Pari. Hist., , ii., 869, 876. 242 CONSTITUTIONAL HISTORY OF ENGLAND [Chap. Vin. Freedom of speech, being applied in the nature of a representative assembly called to present gi'ievances and suggest reme- dies, could not stand in need of any special law or privilege to support it ; but it was also sanctioned by positive authority. The speaker demands it at the beginning of ev- ery Parliament among the standing privi- leges of the House ; and it had received a sort of confirmation from the Legislature by an act passed in the fourth year of Hen- ry VHI., on occasion of one Strode, who had been prosecuted and imprisoned in the Stannaiy Court for proposing in Parliament some regulations for the tinners in Corn- wall ; which annuls all that had been done, or might hereafter be done, toward Strode, for any matter relating to the Parliament, in words so strong as to form, in the opin- ion of many lawyers, a general enactment. The judges, however, held, on the question being privately sent to them by the king, that the statute concerning Strode was a particular act of Parliament, extending only to him and those who had joined with him to prefer a bUl to the Commons concerning tinners; but that, although the act were private and extended to them alone, yet it was no more than all other Parliament-men, by privilege of the House, ought to have — namely, freedom of speech concerning mat- ters there debated.* It appeared by a constant series of prece- dents, the counsel for Eliot and his friends argued, that the liberties and privileges of Parliament could only be determined there- in, and not by any inferior court; that the judges had often declined to give theu' opin- ions on such subjects, alleging tliat they were beyond theu- jurisdiction ; that the words imputed to Eliot were in the nature of an accusation of persons in power which the Commons had an undoubted right to prefer ; that no one would venture to com- plain of gi-ievances in Parliament, if he should be subjected to punishment at the discretion of an inferior tribunal ; that what- ever instances had occurred of punishing the alleged offenses of members after a dis- * Strode's act is printed in Hatsell's Precedents, vol. i., p. 80, and in several other books, as well as in the great edition of Statutes of the Realm. It is worded, like many of our ancient laws, so con- fasedly as to make its application uncertain ; but it rather appears to me not to have been intended as a public act. solution were but acts of power, which no attempt had hitherto been made to sanction ; finally, that the offenses imputed might be punished in a future Parliament. The attorney-general replied to the last point, that the king was not bound to wait for another Parliament ; and, moreover, that the House of Commons was not a court of justice, nor had any power to proceed crim- inally, except by imprisoning its own mem- bers. He admitted that the judges had sometimes declined to give their judgment upon matters of privilege, but contended that such cases had happened during the session of Parliament, and that it did not follow but that an offense committed in the House might be questioned after a dissolution. He set aside the application of Strode's case as being a special act of Parliament, and dwelt on the precedent of an information preferred in the reign of Mary against cer- tain members for absenting themselves from their duty in Parliament, w-hich, though it never came to a conclusion, was not disput- ed on the ground of right. The court were unanimous in holding that they had jurisdiction, though the alleg- ed offenses were committed in Parliament, and that the defendants were bound to an- swer. The privileges of Parliament did not extend, one of them said, to breaches of the peace, which was the present case ; and all offenses against the cro^vn, said an- other, were punishable in the Court of King's Bench. On the parties refusing to put in any other plea, judgment was given that they should be imprisoned during the king's pleasure, and not released without giving surety for good behavior, and making submission ; that Eliot, as the greatest of- fender and ringleader, should be fined in d£2000, Hollis and Valentine to a smaller amount.* Eliot, the most distinguished leader of the popular party, died in the Tower without yielding to the submission required. In the Long Pai'liament, the Commons came to several votes on the illegality of all these proceedings, both as to the delay in grant- ing theii' habeas corpus, and the overruling their plea to the jurisdiction of the King's Bench. But the subject was revived again in a more distant and more tranquil period. In the year 1667, the Commons resolved * State Trials, vol. iii., from Rushworth. Cha. L— 1629-40.] FROM HENRY V: 11. TO GEORGE II. 243 that the act of 4 Hen. VIII. concerning Sti-ode was a general law, " extending to indemnify all and every the members of both Houses of Parliament, in all Parlia- ments, for and touching any bills, speaking, reasoning, or declaring of any matter or mat- tei-s in and concerning the Parliament to be communed and ti-eated of, and is a declara- tory law of the ancient and necessary rights and privileges of Parliament." They re- solved, also, that the judgment given 5 Car. 1. against Sir John Eliot, Denzil Hollis, and Benjamin Valentine is an illegal judg- ment, and against the freedom and privilege of Parliament. To these resolutions the Lords gave their concurrence ; and Hollis, then become a peer, having bi'ought the record of the King's Bench by writ of error before them, they solemnly reversed the judgment.* An important decision with respect to our Constitutional law, which has established beyond controversy the gi'eat privilege of unlimited freedom of speech in Parliament; unlimited, I mean, by any au- thority except that by which the House it- self ought always to restrain indecent and disorderly language in its members. It does not, however, appear to be a necessary consequence from the reversal of this judg- ment, that no actions committed in the House by any of its members are punishable in a court of law. The argument in behalf of Hollis and Valentine goes, indeed, to this length ; but it was admitted in the debate on the subject in 1667, that their plea to the jurisdiction of the King's Bench could not have been supported as to the imputed riot in detaining the speaker in the chair, though the judgment was en'oneous in extending to words spoken in Parliament; and it is obvious that the House could inflict no ad- equate punishment in the possible case of treason or felony committed within its walls, nor, if its power of imprisonment be limited to the session, in that of many smaller of- fenses. The customs on imported merchandises Prosecution ^^^re now rigorously enforced, f of Chambers gut the late discussions in Par- for refusing . to pay cus- liament, and the growmg disposi- tion to probe the legality of all acts of tile crown, rendered the merchants more discontented than ever. Richard Chambers, having refused to pay any fur- * Hatsell, I). 212, 242. t Rushworth. ther duty for a bale of silks than might be required by law, was summoned before the privy-council. In the presence of that board he was provoked to exclaim, that in no part of the world, not even in Turkey, were the merchants so screwed and \vi-ung as in England. For these hasty words an informatiom was preferred against him in the Star Chamber ; and the court, being of opinion that the words were intended to make the people believe that his majesty's happy government might be termed Turk- ish tyranny, manifested their laudable ab- horrence of such tyi-anny by sentencing him to pay a fine of t£2000, and to make a humble submission. Chambers, a sturdy Puritan, absolutely refused to subscribe the form of submission tendei'ed to him, and was, of course, committed to prison ; but the Court of King's Bench admitted him to bail on a habeas corpus, for which, as White- lock tells us, they were reprimanded by the council.* There were several instances, besides this just mentioned, wherein the commenda- judges manifested a more cour- bie behavior ... . , , of juUees in ageous spn-it than they were able some mstan- constantly to preserve ; and the odium under which their memoiy labors for a servile compliance with the court, espe- cially in the case of ship-money, renders it but an act of justice to record those testi- monies they occasionally gave of a nobler sense of duty. They unanimously declar- ed, when Charles expressed a desire that Felton, the assassin of the Duke of Buck- ingham, might be put to the rack in order to make him discover his accomplices, that the law of England did not allow the use of torture. This is a remarkable proof that, amid all the arbiti'ary principles and arbiti-a- ry measures of the time, a ti'uer sense of the inviolability of law had begun to prevail, and that the free Constitution of England was working off the impurities with which violence had stained it ; for though it be most certain that the law never recognized the use of torture, there had been many instances of its employment, and even with- * Rushworth. State Trials, iii., 373. White- lock, p. 12. Chambers applied several times for redress to the Long Parliament on account of tliis and subsequent injuries, but seems to have been cruelly neglected, vphile tJiey were voting large sums to those wrho had suffered much less, and he died in poveity. 244 CONSTITUTIONAL HISTORY OF ENGLAND [Chap. Vm. in a few years.* In this public assertion of its illegality, the judges conferred an em- inent service on their country, and doubt- less saved the king and his council much additional guUt and infamy which they would have incurred in the course of their career. They declared about the same time, on a reference to them concerning certain disrespectful words alleged to have been spoken by one Pine against the king, that no words can of themselves amount to treason within the statute of Edward Ill.f They resolved, some years after, that Prynne's, Burton's, and Bastwick's libels against the bishops were no treason.J In their old controversy with the ecclesiastical jurisdiction, they were inflexibly tenacious. An action having been brought against some members of the High Commission Court * I have remarked in former passages that the rack was much employed, especially against Ro- man Catholics, under Elizabeth. Those accused of the gunpowder conspiracy were also severely tortured ; and others in the reign of James. Coke, in the Countess of Shrewsbur} 's case, 1612, State Trials, ii., 1773, inentions it as a privilege of the nobiUty, that "their bodies are not subject to tor- ture in causi criminis laesse majestatis."' Yet, in his third Institute, p. 35, he says, the rack in the Tower was brought in by the Duke of Exeter, under Henry VI., and is, therefore, familiarly call- ed the Duke of Exeter's daughter ; and after quot- ing Fortescue to prove the practice illegal, con- cludes, " There is no law to warrant tortures in this land, nor can they be justified by any pre- scription, being so lately brought in." Bacon ob- serves, in a tract written in 1603, "In the highest cases of treason, torture is used for discovery, and not for evidence," i., 393. See, also, Miss Aikin's Memoirs of James I., ii., 158. [This subject has been learnedly elucidated by Mr. Jardine, in his " Reading on the Use of Torture in the Criminal Law of England," 1837. The his- torical facts are very well brought together in this essay ; but I can not agree with this highly intel- ligent author in considering the use of torture as having been "lawful as an act of prerogative, though not so by the common and statute law,'' p. 59. The whole tenor of my own views of the Con- stitution, as developed in this and in former works, forbids my acquiescence in a theory, which does, as it seems to me, go the fall length of justift-ing, in a legal sense, the violent proceedings of the crown under all the Plantagenets, Tudors, and Stuarts. 1845.] t State Trials, iiL, 359. This was a very im- portant determination, and put an end to such ty- rannical persecution of Roman Catholics for bare expressions of opinion as had been used under Elizabeth and James. } Rushworth (abridged), ii., 253. Strafford's Let- ters, ii., 74. for false imprisonment, the king, on Laud's remonstrance, sent a message to desire that the suit might not proceed tiD he should have conversed with the j udges. The chief justice made answer that tliey were bound by their oaths not to delay the course of justice ; and after a contention before the privy-council, the commissioners were com- pelled to plead.* Such instances of firmness serve to ex- tenuate those unhappy deficiencies which are more notorious in history. Had the judges been as numerous and independent as those of the Parliament of Paris, they would not probably have been wanting in equal vigor ; but, holding their offices at the king's will, and exposed to the displeeisure of his councU whenever they opposed any check to the prerogative, they held a vacil- lating course, which made them obnoxious to those who sought for despotic power, while it forfeited the esteem of the nation. In pm-suance of the system adopted by Charles's ministers, they had re- „ Means adopt- course to exactions, some odious ej to raise and obsolete, some of very ques- tionable legalitj-, and others clear- fox knight- ly aga'mst law. Of the former class may be reckoned the compositions for not taking the order of knighthood. The early kings of England, Heniy III. and Edward I., very Uttle in the spirit of chiv- alry, had introduced the practice of sum- moning their military tenants, holding d£20 per smnum, to receive knighthood at their hands. Those who declined this honor were permitted to redeem their absence by a moderate fine.f Elizabeth once in her reign, and James, had availed them- selves of this ancient right; but the change * Whitelock, 16. Kennet, 63. We find in Ry- mer, xix., 279, a commission, dated May 6, 1631, enabling the privy -council at all times to come, " to hear and examine all differences which shall arise betwixt any of our courts of justice, especial- ly between the civil and ecclesiastical jurisdic- tions,'' &c. This was, in all probability, contrived by Laud, or some of those who did not favor the common law. But I do not find that any thing was done tmder this commission, which, I need hardly say, was as illegal as most of the king's other pro- ceedings. t 2 Inst., 593. The regulations contained in the statute de militibus, 1 Ed. II., though apparently a temporary law, seem to have been considered by Coke as permanently binding. Yet in this stattite the estate requiring knighthood, or a ccmpositioa for it, is fixed at £20 per annum. Cha. I.— 1629-40.] FEOM HENKY VII. TO GEORGE II. 245 Forest la^¥S. in the value of money rendered it far more oppressive than formerly, though limited to tlie holders of £40 per annum in military tenure. Commissioners were now appoint- ed to compound with those who had neg- lected some years before to obey the procla- mation, summoning them to receive knight- hood at the king's coronation.* In partic- ular instances, very severe fines are record- ed to have been imposed upon defaulters, probably from some political resentment. f Still gi'eater dissatisfaction attended the king's attempt to revive the an- cient laws of the forests ; those laws of which, in elder times, so many com- plaints had been heard, exacting money by means of pretensions which long disuse had rendered dubious, and showing himself to those who lived on the borders of those do- mains in the hateful light of a litigious and encroaching neighbor. The Earl of Hol- land held a court almost every year, as chief-justice in eyre, for the recoveiy of the king's forestal rights, which made gi'eat havoc with private property. No prescrip- tion could be pleaded against the king's title, which was to be found, indeed, by the in- quest of a jury, but under the direction of a veiy partial tribunal. The royal forests in Essex were so enlarged that they were hyperbolically said to include the whole county. t The Earl of Southampton was neai-ly ruined by a decision that stripped him of his estate near the New Forest. § The boundaries of Rockingham forest were increased from six miles to sixty, and enor- mous fines imposed on the ti-espassers, Lord Salisbuiy being amerced in =£20,000, Lord Westmoreland in d€19,000, Sir Christopher * According to a speech of Mr. Hyde in the Long ParUament, not only military tenants, hut all others, and even lessees and merchants, were summoned before the council on this account. — Pari. Hist., ii., 948. This was evidently illegal, especially if the Statutum de militibus was in force, which by express words exempts them. See Mr. Brodie's History of British Empire, ii., 282. There is still some difficulty about this, whicli I can not clear up, nor comprehend why the title, if it could be had for asking, was so continually de- clined, unless it were, as Mr. B. hints, that the fees of knighthood greatly exceeded the composition. Perhaps none who could not prove their gentility were admitted to the honor, though the fine was extorted from them. It is said that the king got jElOO.OOO by this resource. — Macaulay, ii., 107. t Rushworth Abr., ii., 102. t Strafford's Letters, i., 335. § Id., p. 463, 467. Monopolies. Hatton in 6612,000.* It is probable that much of these was remitted. A greater profit was derived from a still more pernicious and indefensible measure, the establishment of a cliartered company, with exclusive privile- ges of making soap. The recent statute against monopolies seemed to secure the public against this species of gi-ievance. Noy, however, the attorney-general, a law- yer of uncommon eminence, and lately a strenuous asserter of popular rights in the House of Commons, devised this project, by which he probably meant to evade the letter of the law, since every manufacturer was permitted to become a member of the company. They agreed to pay eight pounds for eveiy ton of soap made, as well as d€10,000 for their charter. For this they were empowered to appoint search- ers, and exercise a sort of inquisition over the trade. Those dealers who resisted their interference were severely fined, on informations in the Star Chamber. Some years afterward, however, the king receiv- ed money from a new corporation of soap- makers, and revoked the patent of the for- mer.f This precedent was followed in the erec- tion of a similar company of starch-makers, and in a great variety of other grants, which may be traced in Rymer's Foedera, and in the proceedings of the Long Parhament; till monopolies, in ti'ansgi-ession or evasion of the late statute, became as common as they had been under .Tames or Elizabeth. The king, by a proclamation at York in 1639, beginning to feel the necessity of di- minishing the public odium, revoked all these grants. t He annulled, at the same time, a number of commissions that had been issued in order to obtain money by compounding with offenders against penal * Strafford's Letters, ii., 117. It is well known that Charles made Richmond Park by means of de- priving many proprietors not only of common rights, but of their freehold lands. — Clarendon, i., 176. It is not clear that they were ever compensated ; but I think this probable, as the matter excited no great clamor in the Long Parliament. And there is in Rymer, xx., 585, a commission to Cottington, and others, directing them to compound with the owners of lands within the intended inclosures. Dec. 12, 1634. t Kennet, 64. Rushworth Abrldg., ii., 132. Strafford's Letters, i., 446. Rymer, xix., 323. Laud's Diary, 51. t Rymer, xx., 340. 246 CONSTITUTIONAL HISTORY OF EXGLAXD [Chap. VIIL statutes. The catalogue of these, as well as of the monopolies, is very curious. The former were, in truth, rather vexatious than illegal, and sustained by precedents in what were called the golden ages of Elizabeth and James, though at all times the source of gi-eat and just discontent. The name of Koy has acquired an unhap- py celebrity by a far more famous Ship-money, f*^ . , . , . , mveution, which promised to re- alize the most sanguine liopes that could have been formed of carrying on the govern- ment for an indefinite length of time with- out the assistance of Parliament. Shaking off the dust of ages from parchments in the Tower, this man of venal diligence and pros- tituted learning discovered that the sea-ports and even maritime counties had in early times been sometimes called upon to fur- nish ships for the public service ; nay, there were instances of a similar demand upon some inland places. Noy himself died al- most immediately afterward. Notwith- standing his apostasy from the public cause, it is just to remark that we have no right to impute to him the more extensive and more unprecedented scheme of ship-money as a general tax, M hich was aftenvard car- ried into execution ; but it sprang by natu- ral consequence from the former measure, according to the invariable course of en- croachment, which those who have once bent the laws to then- will ever continue to pursue. The first writ issued from the council in October, 1634. It was directed to the magistiates of London and other sea-port towns. Reciting the depredations lately committed by pirates, and slightly ad- verting to the dangers imminent in a season of general war on the Continent, it enjoins them to provide a certain number of ships of war of a prescribed tonnage and equi- page, empowering them also to assess all the inhabitants for a contribution toward this armament according to then' substance. The citizens of London humbly remonsti'a- ted that they conceived themselves exempt, by sundiy charters and acts of Parliament, from bearing such a chai-ge. But the coun- cil peremptorily compelled their submission ; and the murmurs of inferior towns were still more easily suppressed. This is said to have cost the city of London c£35,000.* * Kennet, 74, Tj. Strafford Letters, i., 358. Some pettj- sea-ports in Sussex refused to pay There wanted not reasons in the cabinet of Charles for placing the navy at this time on a respectable footing. Algerine pirates had become bold enough to infest tlie Chan- nel ; and what was of more serious import- ance, the Dutch were rapidly acquiring a maritime preponderance, which excited a natural jealousy, both for our commerce, and the honor of our flag. This commer- cial rivahy conspu'ed with a far more pow- ei-ful motive at court, an abhoiTence of ev- eiy thing Repubhcan or Calvinistic, to make our course of poUcy toward Holland not only unfriendly, but insidious and inimical in the highest degree. A secret treaty is extant, signed in 1631, by which Charles engaged to assist the King of Spain in the conquest of that great Protestant common- wealth, retaining the isles of Zealand as the price of his co-operation.* Yet, with preposterous inconsistency as well as ill faith, the two characteristics of all this unhappy prince's foreign policy, we find him in the next year canying on a negotiation with a disaffected pai-ty in the Netherlands, in some strange expectation of obtaining the sovereignty on their sepa- ration from Spain. Lord Cottington be- trayed this intrigue (of which one whom we should little expect to find in these paths of conspiracy, Peter Paul Rubens, was the negotiator) to the court of Madrid, f It was, in fact, an unpardonable and unpro- voked breach of faith on the king's part, and accounts for the indifference, to say no more, which that government always show- ed to his misfortunes. Charles, whose do- mestic position rendered a pacific system ab- solutelj' necessaiy, busied himself, far more than common history has recorded, with the affairs of Europe. He was engaged in a tedious and unavailing negotiation with both branches of the house of Austria, espe- cially with the court of Madrid, for the res- ship-moDey ; but, finding that the sheriff had au- thoritj" to distrain on them, submitted. The depu- tj' lieutenants of Devonshire wrote to the council in behalf of some towns a few miles distant from the sea, that they might be spared from this tax. sajTng it was a noveltj'. But they were summon- ed to Loudon for this, and received a reprimand for their interference. — Id., 372. * Clarendon State Papers, i., 49, and ii., Append., p. xxvi. t This curious intrigue, before unknown, I be- lieve, to historj-, was brought to light by Lord Hardwicke. — State Papers, ii., 54. Cha. I.— 1629-40.] FEOM HENRY VII. TO GEORGE II. 247 titution of the Palatinate. He took a much greater interest than his father had done in the fortunes of his sister and her familj'; but, liive his father, he fell into the delusion tliat the cabinet of Madrid, for whom he could effect but little, or that of Vienna, to whom he could offer nothing, would so far realize the cheap professions of friendship they were always making, as to sacrifice a conquest wherein the preponderance of the house of Austi-ia and the Catholic religion in Germany was so deeply concerned. They drew him on, accordingly, through the labyrinths of diplomacy, assisted, no doubt, by that ])arty in his council, composed at this time of Lord Cottington, Secretary Windebank, and some others, who had al- ways favored Spanish connections.* It ap- peal's that the fleet mised in 1634 was in- tended, according to an agreement entered into with Spain, to restrain the Dutch from fishing in the English seas ; nay, even, as op- portunities sliould ai-ise, to co-operate hos- tilely with that of Spain. f After above two years spent in these negotiations, Charles ■discovered that the house of Austria were deceiving him ; and, still keeping in view the restoration of his nephew to the elect- oral dignity and territoi'ies, entered into stricter relations with France ; a policy which might be deemed congenial to the . * See Clareudou State Papers, i., 430, for a proof of tbe mamier in which, througli the Hispano-popish party in the cabinet, the house of Austria lioped to dupe and dishonor Charles. t Clarendon State Papers, i., 109, et post. Five English ships out of twenty were to be at tlie charge of the King of Spain. Besides this agree- ment, according to which the English were only bound to protect the ships of Spain within their own seas, or the limits claimed as such, there were certain secret articles, signed Dec. 16, 1634, by one of which Charles bound himself, in case the Dutch should not make restitution of some Spanish ves- sels taken by them within the English seas, to sat- isfy the court of Spain himself out of ships and goods belonging to the Dutch ; and by the second, to give secret instructions to the commanders of his ships, that when those of Spain and Fliuiders should encounter their enemies at open sea, far from his coasts and limits, they should assist thera if over-matched, and should give tbe like help to tlie prizes which they should meet, taken by the Dutch, that they might be freed and set at liberty ; taking some convenient pretext to justify it, that tlie Hollanders might not hold it an act cf hostility. Hut no part of this treaty wag to take effect till the imperial ban upon the Elector Palatine should be removed. — Id., 213. queen's inclinations, and recommended by her party in his council, the Earl of Holland, Sir Henry Vane, and perhaps by the Earls of Northumberland and Arundel. In the first impulse of indignation at the duplicity of Spain, the king yielded so far to their counsels as to meditate a declaration of war against that power.* But his own cooler judgment, or the sti-ong dissuasions of Straf- ford, who saw that external peace was an indispensable condition for the security of despotism,! ^ ^nd to so imprudent a project, though he preserved, to the very meeting of the Long Parliament, an inti- mate connection with France, and even continued to carry on negotiations, tedious and insincere, for an ofteusive alliance. t Yet he stiU made, from time to time, simi- lar overtures to Spain ;§ and this unsteadi- ness, or rather duplicitj', which could not easily bo concealed from two cabinets emi- nent for their secret intelligence, rendered both of them his enemies, and the instru- ments, as there is much reason to believe, of some of his greatest calamities. It is well known that the Scots Covenanters were in close connection with Richelieu ; and many circumstances render it probable that the Irish rebellion was countenanced and instigated both by him and by Spain. This desire of being at least prepared for * Clarendon State Papers, i., 721, 761. t Sti'afford Papers, ii., 5-2, 53, 60, 66. Richelieu sent D'Estrades to Loudon in 1637, according to Pere Orleans, to secure tho neutrality of England in case of his attacking the maritime towns of Flanders conjointly with the Dutch. But the am- bassador was received haughtily, and the neutral- ity refused ; which put an end to the scheme, and so iiTitated Richelieu, that he sent a pi'iest named Chamberlain to Edinburgh the same year, in order to foment troubles in Scotland. — Rcvol. d'Anglet., iii., 42. This is confirmed by D'Estrades himself See note in Sidney Papers, ii., 447, and Harris's Life of Charles, 189 ; also, Lingard, x., 69. The connection of the Scotch leaders with Richelieu iii 1639 is matter of notorious history. It has lately been confirmed and illustrated by an important note in Mazure, Hist, de la Revolution en 1688, ii., 402. It appears by the above-mentioned note of M. Mazure, that the celebrated letter of the Scotch lords, addressed "Au Roy," was really sent, and is extant. There seems reason to think that Hen- rietta joined the Austrian faction about 1639, her mother being then in England, and very hostile to Richelieu. This is in some degree corroborated by a passage in a letter of Lady Carlisle. — Sidney Papers, ii., 614. { Sidney Papers, ii., 613. § Clarendon State Papers, ii., 10. 248 COXSTITUTIONAL HISTORY OF ENGLAND [Chap. VIIL Extension of War, as well as the general sys- r,''n'v",''„tn''" tem of stretching the preroga- money to m- o r & laud places, tive beyond all limits, suggested an extension of the former writs from the sea-ports to the whole kingdom. Finch, chief justice of the Common Pleas, has the honor of this improvement on Noy's scheme. He was a man of little learning or respect- ability, a servile tool of the despotic cabal, who, as speaker of the last Parliament, had, in obedience to a command from the king to adjourn, refused to put the question upon a remonstrance moved in the House. By the new writs for ship-money, properly so denominated, since the former had only de- manded the actual equipment of vessels, for which inland counties were of course oblig- ed to compound, the sheriffs were directed to assess eveiy land-holder and other in- habitant according to their judgment of his means, and to enforce the payment by dis- tress.* This extraordinaiy demand startled even those who had hitheito sided with the court. Some symptoms of opposition were shown in different places, and actions were brought against those who had collected the money. But the greater part yielded to an over- bearing power, exercised with such rigor that no one in this king's reign, who had ventured on the humblest remonstrance against any illegal act, had escaped without punishment. Indolent and improvident men satisfied themselves that the imposition was not very heavy, and might not be repeated. Some were content to hope that their con- tribution, however unduly exacted, would be faithfullj' applied to public ends. Oth- ers were overborne by the authority of pre- tended precedents, and could not yet be- lieve that the sworn judges of the law would pervert it to its own destruction. The min- isters prudently resolved to secure, not the law, but its interpreters on their side. The judges of assize were directed to inculcate on their circuits the necessaiy obligation of forwarding the king's sei-vice by complying with his writ. But, as the measure grew more obnoxious, and strong doubts of its le- gality came more to prevail, it was thought expedient to publish an exti-a-judicial opin- ion of the twelve judges, taken at the king's special command, according to the perni- i cious custom of that age. They gave it as * See the instructions in Rushworth, ii., 214. | their unanimous opinion, that " when the good and safety of the kingdom in general is concerned, and the whole kingdom in danger, his majesty might, by writ under the great seal, command all his subjects, at their charge, to provide and furnish such number of ships, with men, munition, and victuals, and for such time as he should think fit, for the defense and safeguard of the kingdom ; and that by law he might compel tlie doing thereof, in case of refusal or refractoriness ; and that he was the sole judge both of the danger, and when and how the same was to be prevented and avoided." This premature declaration of the judges, which was publicly read by the Lord-keep- er Coventiy in the Star Chamber, did not prevent a few intrepid persons from bring- ing the question solemnly before them, that the liberties of their country might at least not perish silentlj', nor those who had be- ti-ayed tliem avoid the responsibility of a pubUc avowal of their shame. The first that resisted was the gallant Richard Cham- bers, who brought an action against the lord-mayor for irapi-isoning him on account of his refusal to pay his assessment on the former writ. The magisti-ate pleaded the writ as a special justification ; when Berk- ley, one of the judges of the King's Bencli, declared that there was a rule of law and a rule of government ; that many things which could not be done by the first rule, might be done by the other, and would not suffer counsel to argue against the lawful- ness of ship-money.* The next were Lord Say and Mr. Hampden, both of whom ap- pealed to the justice of their countiy ; but the famous decision which has made the lat- ter so illusti'ious, put an end to all attempts at obtaining redress by course of law. Hampden, it seems hardly necessary to mention, was a gentleman of good „ , , ' _ o Hampden fl estate in Buckinghamshire, whose refusal to assessment to the contribution for ship-money demanded from his county amounted only to twenty shillings. f The * Rushworth, 253. The same judge declared aflenvard, in a cliarje to the grand jury of York, that ship-money was an inseparable flower of the crown, glancing at Hutton and Croke for their op- position to it— Id., 267. t As it is impossible to reconcile the trifling amount of this demand with Hampden's known estate, the tax being probably not much less than Cha. I.— 1629-40.] FROM HENRY VII. TO GEORGE II. 249 cause, though properly belonging to the Court of Exchequer, was heard, on account of its magnitude, before all the judges in the Exchequer Chamber.* The precise ques- tion, so far as related to Mr. Hampden, was. Whether the king had a right, on his own allegation of public danger, to require an in- land county to furnish ships, or a prescribed sum of money by way of commutation, for the defense of the kingdom ? It was ar- gued by St. John and Holborne in behalf of Hampden, and by the Solicitor-general Littleton and tlie Attoraey-general Banks for the crown, t The law and Constitution of England, the Arguments former maintained, had provided on the case, various Ways for the public safe- ty and protection against enemies. First, there were the military tenures, which bound great part of the kingdom to a stipu- lated service at the charge of the possess- ors. The cinque ports also, and several other towns, some of them not maritime, held by a tenure analogous to this, and were bound to furnish a quota of ships or men, as the condition of their possessions and privi- leges. These, for the most part, are re- corded in Domesday Book, though now, in general, grown obsolete. Next to this spe- cific seiTice, our Constitution had bestowed on the sovereign his certain revenues, the fruits of tenure, the profits of his various sixpence in the pound, it has been conjectured that his propertj' was purposely rated low. But it is hard to perceive any motive for this indulgence ; End it seems more likely tliat a nominal sum was fixed upon, in order to try the question ; or that it was only assessed on a part of his estate. [Lord Nugent has published a fac simile of the return made by the assessors of ship-money for the parish of Great Kimble, wherein Mr. Hampden is set down for 31s. 6d., and is returned, with many others, as refusing to pay. — Memoirs of Hampden and his Times, vol. i., p. 230. But the suit in the Exchequer was not on account of this demand, but for 20s., as stated in the text, due for property sit- uate in the parish of Stoke Mandevile. This ex- plains the smallness of the sum immediately in question ; it was assessed only on a portion of Hampden's lands. 1845.] * There seems to have been something unusual, if not irregular, in this part of the proceeding. The barons of the Exchequer called in the other judges, not only by way of advice, but direction, as the chief baron declares. — State Trials, 1203. And a proof of this is, that the Court of Exchequer being equally divided, no judgment could have been giv- en by the barons alone. t State Trials, iii., 826-1252. minor prerogatives ; whatever, in short, he held in right of his crown, was applicable, so far as it could be extended, to the public use. It bestowed on him, moreover, and perhaps with more special application to maritime purposes, the customs on impor- tation of merchandise. These, indeed, had. been recently augmented far beyond ancient usage. " For these modern impositions," says St. John, " of the legality thereof 1 intend not to speak ; for in case his majesty may impose tipon merchandise what him- self pleaseth, there wiD be less cause to tax the inland counties ; and in case he can not do it, it will be strongly presumed that he can much less tax them." But £is the ordinaiy revenues might prove quite unequal to great exigencies, the Con- stitution has provided another means, as ample and sufficient as it is lawful and reg- ular. Parliamentary supply. To this the kings of England have in all times had re- course ; j'et princes are not apt to ask as a concession what they might demand of right. The frequent loans and benevolen- ces which they have required, though not always defensible by law, are additional proofs that they possessed no general right of taxation. To borrow on promise of re- payment— to solicit, as it were, alms from their subjects, is not the practice of sover- eigns whose prerogatives entitle them to i exact money. Those loans had sometimes j been repaid, expressly to discharge the king's conscience. And a very arbitrary prince, Henry VIII., had obtained acts of Parliament to release him from the obliga- tion of repayment. These merely probable reasonings pre- pare the way for that conclusive and irre- sistible argument that was foimded on stat- ute law. Passing slightly over the charter of the Conqueror, that his subjects shall hold their lands free from all unjust tallage, and the clause in John's Magna Charta, that no aid or scutage should be assessed but by consent of the gi-eat council (a provision not repeated in that of Henry HI.), the advo- cates of Hampden relied on the 2.5 Edw. I., commonly called the Confirmatio Charta- rum, which forever abrogated all taxation without consent of Parliament ; and this statute itself, they endeavored to prove, was gi-ounded on requisitions veiy like the pres- ent, for the custody of the sea, which Ed- 250 COXSTITUTIOXAL HISTORY OF ENGLAND [Chap. VIIL ward had issued the year before. Hence it was evident that the saving contained in that act for the accustomed aids and prizes could not possibly be intended, as the oppo- site counsel would suggest, to preserve such exactions as ship-money, but related to the established feudal aids, and to the ancient customs on merchandise. They dwelt less, however (probably through fear of having this exception turned against them), on this important statute than on one of more ce- lebrity, but of veiy equivocal genuineness, denominated De Tallagio non Concedendo, which is nearly in the same words as the Confinnatio Chartarum, with the omission of the above-mentioned saying. More than one law, enacted under Edward III., reas- serts the necessity of Parliamentary con- sent to taxation. It was, indeed, the sub- ject of frequeut I'emonsti'ance in that reign, and the king often infringed this right. But the perseverance of the Commons was suc- cessful, and ultimately rendered the prac- tice conformable to the law. In the second year of Richard II., the realm being in im- minent danger of invasion, the privy-council convoked an assembly of peers and other gi-eat men, probably with a view to avoid the summoning of a Parliament. This as- sembly lent their own money, but declared that they could not provide a remedy with- out charging tlie Commons, which could not be done out of Parliament, advising that one should be speedily summoned. This precedent was the more important, as it tended to obviate that argument from peril and necessity, on which the defenders of ship-money were wont to rely. But they met that specious plea more directly. They admitted that a paramount overruling necessity silences the voice of law ; that in actual invasion, or its immediate pi-ospect, tlie rights of private men must yield to the safety of the whole ; that not only the sov- ereign, but each man in respect of his neigh- bor, might do many things absolute!}" illegal at other seasons ; and this served to distin- guish the present case from some strong acts of prerogative exerted by Elizabeth in 1588, when the liberties and religion of the people were in the most apparent jeopardy. But here there was no ovei-whelming dan- ger; the nation was at peace with all the world : could the piracies of Turkish cor- sau'S, or even the insolence of rival neigh- bors, be reckoned among those instant per- ils for which a Parliament would provide too late ? To the precedents alleged on the other side, it was replied, that no one of them met the case of an inland county ; that such as were before the 25 Edw. I. were suf- ficiently repelled by that statute, such as occuned under Edwaid III. by the later statutes, and by the remonstrances of Par- liament dming his reign ; and there were but veiy few afterward. But that, in a matter of statute law, they ought not to be governed by precedents, even if such could be adduce'd. Befoi-e the latter end of Edward I.'s reign, St. John observes, " All things concerning the king's prerogative and the subject's liberties were upon un- certainties." " The government," says Holborne ti'uly, "was more of force than law." And this is unquestionably applica- ble, in a less degree, to many later ages. Lastly, the Petition of Right, that noble legacy of a slandered Parliament, reciting and confirming the ancient statutes, had es- tablished that no man thereafter be com- pelled to make or yield any gift, loan, be- nevolence, tax, or such Uke charge, without common consent by act of Parliament. This latest and most complete recognition must sweep away all contrary precedent, and could not, without a glaring violation of its obvious meaning, be stretched into an admission of ship-money. The king's counsel, in answer to these arguments, appealed to that series of records which the diligence of Noy had collected. By far the greater part of these were com- missions of array. But several, even of those addressed to inland towns (and, if there were no sei-vice by tenure in the case, it does not seem easy to distinguish these in principle from counties), bore a very sti'ong analogy to the present. They were, however, in early times. No suffi- cient answer could be offered to the stat- utes that had prohibited unpariiamentary taxation. The attempts made to elude their force were utterly ineffectual, as those who are acquainted with their em- phatic language may well conceive. But the council of Charles the First, and the hirelings who ate their bread, disdained to rest their claim of ship-money (big as it was 1 with other aud stiU more novel schemes) on ClIA. I.— 1629-40.] FROM HENRY VII. TO GEORGE II. 251 obscure records, or on cavils about the meauing of statutes. They resorted rath- er to the favorite topic of the times, the in- trinsic, absolute authority of the king. This the Attorney-general Banks placed in the very front of his argument. " This pow- er," says he, " is innate in the person of an absolute king, and in the persons of the kings of England. All magisti-acy it is of nature, and obedience and subjection it is of nature. This power is not any waj s derived from the people, but reserved unto the king when positive laws fii'st began. For the King of England, ho is an absolute monarch ; nothing can be given to an abso- lute prince but what is inherent in his per- son. He can do no wrong. He is the sole judge, and we ought not to question him. Where the law trusts, we ought not to dis- trust. The acts of Parliament," he ob- served, " contained no express words to take away so high a prerogative ; and the king's prerogative, even in lesser matters, is always saved, wherever express words do not restrain it." But this last argument appearing too mod- est for some of the judges who pronounced sentence in this cause, they denied the power of Parliament to limit the high pre- rogatives of the crown. " This imposition without Parliament," says Justice Craw- Icy, "appertains to the king originally, and to the successor ipso facto, if he be a sov- ereign in right of his sovereignty from the crown. You can not have a king without these royal rights, no, not by act of Parlia- ment." " Where Mr. Holborne," says Justice Berkley, " supposed a fundamental policy in the creation of the frame of this kingdom, that in case the monarch of Eng- land should be inclined to exact from his subjects at his pleasure, he should be re- strained, for that he could have nothing from them but upon a common consent in Parliament; he is utterly mistaken herein. The law knows no such king-yoking policj-. The law is itself an old and trusty servant of the king's ; it is his instrument or means which he useth to govern his people by : I never read nor heard that lex was rex ; but it is common and most ti-ue that rex is lex." Vernon, another judge, gave his opinion in few words : " That the king, pro bono pub- lico, may charge his subjects for the safety and defense of the kingdom, notwithstand- ing any act of Parliament, and that a stat- ute derogatory from the prerogative doth not bind the king ; and the king may dis- pense with any law in cases of necessity." Finch, the adviser of the ship-money, was not backward to employ the same argument in its behalf. " No act of Parliament," he told them, " could bar a king of his regality, as that no land should hold of him, or bar him of the allegiance pf his subjects or the relative on his part, as U'ust and power to defend his people ; therefore acts of Parlia- ment to take away his royal power in the defense of his kingdom are void ; they are void acts of Parliament to bind the king not to command the subjects, their persons, and goods, and I say, their money too, for no acts of Parliament make any difference." Seven of the twelve judges, namely, Finch, chief justice of the Common Pleas, Jones, Berkley, Vernon, Crawley, Trevor, and Weston, gave judgment for the crown. Brampston, chief justice of the King's Bench, and Davenport, chief baron of the Exchequer, pronounced for Hampden, but on technical reasons, and adhering to the majoiity on the principal question. Den- ham, another judge of the same court, be- ing exti'emely ill, gave a short written judg- ment in favor of Hampden ; but Justices Croke and Hutton, men of considerable reputation and experience, displayed a most praiseworthy intrepiditj'- in denying, with- out the smallest qualitication, the alleged prerogative of the crown and the lawful- ness of the writ for ship-money. They had unfortunately signed, along with the other judges, the above-mentioned opinion in favor of the right. For this they made the best apology they could, that their voice was concluded by the majoritj' ; but, in tiTith, it was the ultimate success that sometimes attends a struggle between con- science and self-interest or timidity.* The length to which this important cause was protracted, six months having elapsed * Croke, whose conduct on the bench in other pohtical questions was not without blemish, had resolved to give judgment for the king, but was withheld by his wife, who implored him not to sacrifice his conscience for fear of any danger or prejudice to his family, being content to suffer any misery with him, rather than to be an occasion for him to violate his integrity. — Whitelock, p. 25. Of such high-minded and inflexible women our British historj- produces many examples. 252 CONSTITUTIONAL HISTORY OF ENGLAND [Chap. Vllt, from the opening speech of Mr. Hampden's counsel to the final judgment, was of infi- nite disservice to the crown. During this long period, every man's attention was di- rected to the Exchequer Chamber. The convincing arguments of St. John and Hol- borne, but still more the division on the bench, increased their natural repugnance to so unusual and dangerous a prerogative.* Those who had trusted to the faith of the judges were undeceived by the honest re- pentance of some, and looked with indigna- tion on so prostituted a crew. That re- spect for courts of justice, wliich the happy structure of our judicial administration has in general kept inviolate, was exchanged for distrust, contempt, and desire of vengeance. They heard the speeches of some of the judges with more displeasure than even their final decision. Ship-money was held lawful by Finch and several other judges, not on the authority of precedents, which must, in their nature, have some bounds, but on principles subversive of any property or privilege in the subject. Those paramount rights of monarchy, to which they appealed to-day in justification of ship-money, might to-moiTow seiTe to supersede other laws, and maintain new exertions of despotic pow- er. It was manifest, by the whole sti-ain of the court lawyers, that no limitations on the king's authority could exist but by the king's sufferance. This alarming tenet, long bruited among the churchmen and courtiers, now resounded in the halls of justice. But ship-money, in consequence, was paid with far less regularity and more reluctance than before. f The discontent that had been tolei-ably smothered, was now displayed in eveiy county ; and though the * Laud writes to Lord Wentworth, that Croke and Hutton had both gone against the king very Bourly. " The accidents which liave followed upon it already are these : First, the faction are grown very bold. Secondly, the king's moneys come in a great deal more slowly than they did in fonner years, and that to a vevy considerable sum. Third- ly, it puts thoughts into wise and moderate men's heads, which were bettor out ; for they think if the judges, which are behind, do not their parts both exceeding well and thoroughly, it may much dis- temper this extraordinary and great service." — Strafford Letters, ii., 170. t It is notoriously known that pressure was borne with much more cheerfulness before the judgment for the king than ever it was after. — Clai-eudon, p. 122. council did not flinch in the least from ex- acting payment, nor willingly remit any part of its rigor toward the uncomplying, it was impossible either to punish the great body of the country gentlemen and citizens, or to restiain their murmurs by a few examples. Wliether in consequence of this unwilling- ness, or for other reasons, the revenue lev- ied in different years under the head of ship- money is more fluctuating than we should expect from a fixed assessment, but may be reckoned at an average sum of c£'200,000.* It would doubtless be unfair to pass a se- vere censure on the government Proclama- of Charles the First for transgres- sions of law, which a long course of prece- dents might render dubious, or at least ex- tenuate. But this common apology for his administration, on which tiie artful defense of Hume is almost entirely grounded, must be admitted cautiously, and not until wo have well considered how far such prece- dents could be brought to support it. This is particularly applicable to his proclama- tions. I have already pointed out the com- parative novelty of these unconstitutional ordinances, and their great increase under James. They had not been fuUy acquies- ced in ; the Commons had remonstrated against their abuse ; and Coke, with other judges, had endeavored to fix limits to their authority, veiy far within that which they aiTogated. It can hardly, therefore, be said that Charles's council were ignorant of their illegality ; nor is the case at all parallel to that of general warrants, or any similar ir-* regularity into which an honest government may inadvertently be led. They serve at least to display the practical state of the Constitution, and the necessity of an entire reform in its spirit. The proclamations of Charles's reign are far more numerous than those of . Various ar- his father. They imply a pre- Utrary pro- rogative of intermeddling with all '^^''^"'ss- matters of trade, prohibiting or putting un- der restraint the importation of various ar- ticles, and the home growth of others, or establishing regulations for manufactures.! Prices of several minor articles were fixed by proclamation, and in one instance this * Rushworth Abr., ii., 341. Clarendon, State Papers, i., 600. It is said by Heylin that the clergy were much spared in the assessment of ship money — Life of Laud, 302. t Rymer, passim. Cha. I.— 1629-40.] FROM HENRY VII. TO GEORGE II. 253 was extended to poultiy, butter, and coals.* The king declares by a proclamation that he had incorporated all tradesmen and artifi- cers within London and three miles round, so that no person might set up any ti-ade without having served a seven years' ap- prenticeship, and without admission into such corporation, f He prohibits, in lilie manner, any one from using the trade of a maltster, or that of a brewer, without ad- mission into the corporations of maltsters or brewers erected for every county. t I know not whether these projects were in any de- gree founded on the alleged pretext of cor- recting abuses, or were solely designed to raise money by means of these corporations. We find, liowever, a revocation of the re- sti-aint on malting and brewing soon after. The illegality of these proclamations is most unquestionable. The rapid increase of London continued to disquiet the court. It was the sti'ong- hold of political and religious disaffection. Hence the prohibitions of erecting new houses, which had begun under Elizabeth, were continually repeated. § They had, indeed, some laudable objects in view ; to render the city more healthy, cleanly, and magnificent, and by prescribing the general use of brick instead of wood, as well as by im])roving the width and regularity of the sti'eets, to afford the best security against fires, and against those epidemical diseases which visited the metropolis with unusual severity in the earlier years of this reign. The most jealous censor of royal encroach- ments will hardly object to the proclama- tions enforcing certain regulations of police in some of those alarming seasons. It is probable, from the increase which we know to have taken place in London during this reign, that licenses for building * Id., xix., 512. It may be curious to mention some of these. The best turkey was to be sold at 4s. 6d. ; the best goose at 2s. id. ; the best pullet, Is. Sd. ; three eggs for a penny ; fresh butter at 5d. in summer, and Gd. in winter. This was in 1634. t Id., XX., 113. t Id., 157. § Kymcr, xviii., 33, et alibi. A commission was granted to the Earl of Arundel and others, May 30, 1625, to inquire what houses, shops, &c., had been built for ten yeai-s past, especially since the last proclamation, and to commit the offenders. It re- cites the care of Elizabeth and James to have the city built in a uniform manner with brick, and also to clear it from under-tenants and base people who live by begging and stealing.- — Id., xviii., 07. were easily obtained. The same supposi- tion is applicable to another class of procla- mation, enjoining all persons who had resi- dences in the country to quit the capital and repair to them.* Yet, that these were not always a dead letter, appears from an in- foi'mation exhibited in the Star Chamber against seven lords, sixty knights, and one hundred esquires, besides many ladies, for disobeying the king's proclamation, either by continuing in London, or returning to it after a short absence, f The result of this prosecution, which was probably only in- tended to keep them in check, does not ap- pear. No proclamation could stand in need of support from law, while this arbitrary tribunal assumed a right of punishing mis- demeanors. It would have been a danger- ous aggravation of any delinquent's offense to liave questioned the authority of a proc- lamation, or the jurisdiction of the council. The security of freehold rights had been the peculiar boast of the English law. The very statute of Hemy VIII., which has been held up to so much infamy, while it gave the force of law to his proclamations, interposed its barrier in defense of the sub- ject's property. The name of freeholder, handed down with religious honor from an age when it conveyed distinct privileges, and, as it were, a sort of popular nobility, protected the poorest man against the crown's and the lord's rapacity. He at least was recognized as the liber homo of Magna Charta, who could not be disseised of his tenements and franchises. His house was liis castle, which the law respected, and which the king dared not enter. Even the public good must give way to his obsti- nacy ; nor had the Legislature itself as yet compelled any man to part with his lands for a compensation which he was loth to accept. The council and Star Chamber had very rarely presumed to meddle with his right ; never, perhaps, where it was ac- knowledged and ancient. But now this reverence of the common law for the sa- credness of real property was derided by those who revered nothing as sacred but the interests of the Church and crown. The privy-council, on a suggestion that the demolition of some houses and shops in the vicinity of St. Paul's would show the Ca- thedral to more advantage, directed that the * Rymer, xix., 375. t Rushworth Abr., ii., 232. 254 COXSTITUTIOXAL HI; ;STORY OF ENGLAND [Chap. VI ir. owners should receive such satisfaction as should seem reasonable ; or, on their refu- sal, the sheriff was required to see the build- ings puUed down, " it not being thought fit the obstinacy of those persons should hin- der so considerable a work."* By another order of council, scarcely less oppressive and illegal, all shops in Cheapside and Lom- bard-street, except those of goldsmiths, were directed to be shut up, that the avenue to St. Paul's might appear more splendid ; and the mayor and aldermen were repeat- edly threatened for remissness in executing this mandate of tyranny.f In the great plantation of Ulster by James, the city of London had received a gi-ant of extensive lands in the county of Deny, on certain conditions prescribed in their char- ter. The settlement became flourishing, and enriched the city ; but the wealth of London was always invidious to the crown, as well as to the needy couitiers. On an information filed in the Star Chamber for certain alleged breaches of their charter, it was not only adjudged to be forfeited to the king, but a fine of ^70,000 was imposed on the city. They paid this enormous mulct, but were kept out of their lands till restored by the Long Parliament. t In this proceed- ing Charles forgot his duty enough to take a very active share, personaUy exciting the court to give sentence for himself.§ Is it then to be a matter of surprise or reproach, that the citizens of London refused him as- sistance in the Scottish war, and through the ensuing times of confusion harbored an implacable resentment against a sovereign who had so deeply injured them ? We may advert in this place to some oth- * Rnshworth Abr., ii., 79. t Id., p. 313. i Rushworth Abr., iii., 123. Whitelock, p. 35. Strafford Letters, i., 374, et alibi. See what Clar- endon says, p. 293 (ii., 151, edit. 1826). The sec- ond of these tells us that the city offered to bnild for the kinij a palace in St. James's Park by way of composition, which was refused. If this be true, it must allude to the palace already projected by him, the magnificent designs for which by Inigo Jones are well known. Had they been executed, the metropolis would have possessed a splendid monument of Palladian architecture, and the re- proach sometimes thrown on England, of wanting a fit mansion for its monarchs, would have been prevented. But the Exchequer of Charles I. had never been in such a state as to render it at all probable that he could undertake so costly a work. § Strafford Letters, i., 340. er sti'etches of power, which no one can pretend to justify, though in general they seem to have escaped notice amid the enor- mous mass of national grievances. A com- mission was issued in 16.3-5, to the recorder of London and others, to examine all per- sons going beyond seas, and tender to them an oath of the most inquisitorial nature.* Certain privy-counselors were empowered to enter the House of Sir Robert Cotton, and search his books, records, and papers, setting down such as ought to belong to the crown, f This renders probable what we find in a writer who had the best means of infoi-mation, that Secretary Windebank, by virtue of an order of council, entered Sir Edward Coke's house while he lay on his death-bed, and took away his manuscripts, together with his last will, which was nev- er returned to his family.} The High Commission Court were enabled, by the king's " supreme power ecclesiastical," to examine such as were charged with offens- es cognizable by them on oath, which many had declined to take, according to the known maxims of English law.§ It would be improper to notice as illegal or irregular the practice of granting dispen- sations in particular instances, either from general acts of Parliament or the local stat- utes of colleges. Such a prerogative, at least in the former case, was founded on long usage and judicial recognition. Charles, however, ti'ansgressed its admitted bounda- ries when he empowered othei-s to dispense with them as thei'e might be occasion. Thus, in a commission to the president and council of the North, directing them to com- pound with recusants, he in effect suspends the statute which provides that no recusant shall have a lease of tliat portion of his lands which the law sequestered to die king's use dming his recusancy ; a clause in this pat- ent enabling the commissioners to grant such leases, notwithstanding any law or statute to the conti'aiy. This seems to go beyond the admitted limits of the dispens- ing prerogative. II The levies of tonnage and poundage with- out authoiity of Parliament; the exaction * Rymer, xix., 699. t Id., 198. i Roger Coke's Detection of the Court of Eng- land, i., 309. He was Sir Edward's grand-son. § Rymer, xx., 190. II Id., six., 740. See, also, 82. Cha. I.— 1629-40.] FROM HENRY VII. TO GEORGE II. 255 of monopolies ; the extension of the forests ; the arbitrary restraints of proclamations ; above all, the general exaction of ship-mon- ey, form the principal articles of charge against the government of Charles, so far as relates to its inroads on the subject's property. These were maintained by a vigilant and unsparing exercise of jurisdic- tion in the Court of Star Chamber. I have, in another chapter, ti'aced the revival of this great tribunal, probably under Heniy VIII., in at least as formidable a shape as befoi'e the now-neglected statutes of Edwfird III. and Richard II., which had placed barriers in its way. It was the great weapon of ex- ecutive power under Elizabeth and James ; nor can we reproach the present reign with innovation in this respect, though in no for- mer period had the proceedings of this court been accompanied with so much violence and tyranny. But this will require some fuller explication. I hardly need remind tlie reader that the Star Chamber jurisdiction of the ancient Con- jurisdiction, cilium regis ordinarium, or Court of Star Chamber, continued to be exercised, more or less frequently, not^vithstandingthe various statutes enacted to repress it ; and that it neither was supported by the act erecting a new coiut in the third of Hemy VII., nor originated at that time. The rec- ords show the Star Chainber to have taken cognizance both of civil suits and of oflenses throughout the time of the Tudors. But precedents of usurped power can not estab- lish a legal authority in defiance of the ac- knowledged law. It appears that the law- yers did not admit any jurisdiction in the council, except so far as the statute of Hen- ry VII. was supposed to have given it. " The famous Plowden put his hand to a demuiTer to a bill," says Hudson, "because the matter was not within the statute ; and, although it was then oveiTuled, yet Mr. Sergeant Richardson, thirty years after, fell again upon the same rock, and was sharply rebuked for it."* The chancellor, who was * Hudson's Treatise of the Court of Star Cham- ber, p. .51. This valuable work, written about the end of James's reigii, is pubUshed in Collectanea Jnridica, vol. ii. There is more than one manu- script of it in the British Museum. In another treatise, written by a clerk of the Council about 1500 (Hargrave MSS., ccxvi., 195), the author says : " There was a time when there grew a controversy between the Star Chamber the standing president of the Court of Star Chamber, would always find pretenses to elude the existing statutes, and justify the usurpation of this tiibunal. The civil jurisdiction claimed and exerted by the Star Chamber was only in particular cases, as disputes between alien merchants and Englishmen, questions of prize or un- lawful detention of ships, and, in general, such as now belong to the Court of Admi- ralty ; some testamentary matters, in order to prevent appeals to Rome, which might have been brought fi'om the ecclesiastical courts ; suits between coiijorations, " of which," says Hudson, " I dare undertake to show above a hundred in the reigns of Hemy VII. and Hemy VIII., or some- times between men of great power and in- terest, which could not be ti'ied with fair- ness by the common law for the coiTup- tion of sherifi's and juries furnished an apol- ogy for the iiTegular, but necessary, inter- ference of a controlling authority. The an- cient remedy, by means of attaint, which renders a jury responsible for an unjust and the King's Bench for their jurisdiction in a cause of perjui-y concerning tithes. Sir Nicholas Bacon, that most grave and worthy counselor, then being lord-keeper of the great seal, and Sir Robert Catlyn, knight, then lord-chief-justice of the bench. To the deciding thereof were called by the plaintiff and defendant a great number of the leanied coun- selors of the law: they were called into the inner Star Chamber after dinner, where before the lords of the council they argued the cause on both sides, but could not find the court of creator antiquity by all their books than Henry VII. and Richard III. On this I fell in cogitation how to find some further knowledge thereof." He proceeds to inform us, that by search into records he traced its jurisdic- tion much higher. This shows, however, the doubts entertained of its jurisdiction in the queen's time. This writer, extolling the court highly, admits that "some of late have deemed it to be new, and put the same in print, to the blemish of its beautiful antiquity." He then discusses the question (for such it seems it was) whether any peer, though not of the council, might sit in the Star Chamber, and decides in the negative. " A". 5'°. of her maj- esty," he says, in the case of the Earl of Hertford, " there were assembled a great number of the no- ble barons of this realm, not being of the council, who offered there to sit; but at that time it was declared unto them by the lord-keeper that they were to give place, and so they did, and divers of them tanied the heaiing of the cause at the bar." This note ought to have been inserted in Chap- ter I., where the antiquity of the Star Chamber is mentioned, but was accidentally overlooked. ' P. 5G. 256 verdict, was almost gone into disuse, and, depending on the integrity of a second juiy, not always easy to be obtained ; so that in many parts of the kingdom, and especially in Wales, it was impossible to find a jury who would return a verdict against a man of good family, either in a civil or criminal proceeding. The statutes, however, restraining the council's jurisdiction, and the strong prepos- session of the people as to the sacredness of freehold rights, made the Star Chamber cautious of determining questions of inher- itance, which they commonly remitted to the judges; and from the early part of Elizabeth's reign they took a direct cogni- zance of any civil suits less frequently than before, partly, I suppose, from the increas- ed business of the Court of Chancery and the Admiralty Court, which took awaj- much wherein they had been wont to med- dle, partly from their own occupation as a coui't of criminal judicature, which became more conspicuous as the other went into disuse.* This criminal jurisdiction is that which rendered the Star Chamber so potent and so odious an auxiliary of a despotic ad- ministration. The offenses principally cognizable in this court were forgery, perjuiy, riot, mainte- nance, fraud, libel, and conspiracy.f But, besides these, eveiy misdemeanor came within the proper scope of its inquiiy ; those especially of public importance, and for which the law, as then understood, had provided no sufficient punishment ; for the judges interpreted the law in early times with too gi'eat naiTowness and timidity ; defects which, on the one hand, raised up the overruling authority of the Court of Chancery as the necessary means of re- dress to the civil suitor who found the gates of justice barred against him by technical pedantry, and on the other, brought this usurpation and tyranny of the Star Cham- ber upon the kingdom by an absurd scru- pulosity about punishing manifest offenses * P. 62. Lord Bacou observes, that the council in his time did not meddle with mcum and tunm as formerly, and that such causes ought not to be entertained— Vol. i., 720 ; vol. ii., 208. " The king," he says, " should be sometimes present, yet not too often." James was too often present, and took one well-known criminal proceeding, that against Sir Tliomas Lake and his family, entirely into lus own hands. t P. 82. [Chap. VIIL against the public good. Thus con'uption, breach of trust, and malfeasance in public affairs, or attempts to commit felonj', seem to liave been reckoned not indictable at common law, and came, in consequence, under the cognizance of the Star Cham- ber.* In other cases its jurisdiction was merely concuirent ; but the greater cer- tainty of conviction, and the greater severi- ty of punishment, rendered it incomparably more formidable than the ordinary benches of justice. The law of libel grew up in this unwholesome atmosphere, and was molded by the plastic hands of successive judges and attorneys-general. Prosecutions of this kind, according to Hudson, began to be more frequent from the last years of Eliz- abeth, when Coke was attorney-general; and it is easy to conjecture what kind of interpretation they received. To hear a libel sung or read, says that writer, and to laugh at it, and make merriment with it, has ever been held a publication in law. The gross error that it is not a libel if it be true, has long since, he adds, been exploded out of this court. f Among the exertions of authority prac- tised in the Star Chamber which no posi- tive law could be brought to warrant, he enumerates " punishments of breach of proclamations before they have the strength of an act of Parliament ; which this court hath stretched as far as ever any act of Par- liament did. As in the 41st of Elizabeth, builders of houses in London were senten- ced, and their houses ordered to be pulled down, and the materials to be distributed to the benefit of the parish where the build- ing was ; which disposition of the goods soundeth as a great extremity, and beyond the wairant of our laws ; and yet, surely, very necessary, if any thing would deter men from that hon ible mischief of increas- ing that head which is swoln to a great hugeness already. "'J: * p. 108. t P. 100, 102. X P. 107. The following case in the queen's reign goes a great way : An information was pre- ferred in the Star Chamber against Griffin and an- other for erecting a tenement in Hog Lane, which he diN-ided into several rooms, wherein were in- habiting two poor tenants, that only lived and were maintained by the relief of their neighbors, Ac. The attorney-general, and also the lord-mayor and aldermen, prayed some condign punishment on Grifiiu and the other, and that the com-t would be CONSTITUTIONAL HISTORY OF ENGLAND Cha. I.— 1629-40,] FIIOM HEXRY VII. TO GEORGE II. 257 The mode of process was sometimes of a summaiy nature ; the accused person being privately examined, and his examination read in tiie court, if he was thouglit to have confessed sufficient to deserve sentence, it was immediately awarded without any form- al trial or wi'itten process. But the move regular course was by information filed at the suit of the attorney-general, or in cer- tain cases, of a private relator. The party was brought before the court by writ of subpcena ; and having given bond, with sure- ties, not to depart without leave, was to put in his answer upon oath, as well to the mat- ters contained in the information, as to spe- cial interrogatories. Witnesses were ex- amined upon inteiTogatories, and their dep- ositions read in court. The course of pro- ceeding, on the whole, seems to have near- ly resembled that of the Chancery.* It was held competent for the court to Punishments adjudge any punishment short of ihe'sta'r''^ death. Fine and imprisonment Chamber. were of course the most usual. The pillory, whipping, branding, and cut- ting off the ears, gi-ew into use by degi'ees. In the reign of Henry VII. and Henry VIII., we are told by Hudson, the fines were not so ruinous as they have been since, which he ascribes to the number of bishops who sat in the court, and inclined to mercy; " and I can well remember," he says, " that the most reverend Archbishop Whitgift did ever constantly maintain the liberty of the free Charter, that men ought to bo fined, salvo contenemento. But they pleased to set down and decree some general order in this and other like cases of new building and division of tenements ; whereupon the court, gen- erally considering the great growing evils and in- conveniences tliat continually breed and happen by this new erected building and divisions made and divided contrary to her majesty's said proclama- tion, commit the ofifenders to the Fleet, and fine them X20 each ; but considering that if the hoases be pulled down, other habitations must be found, did not, as requested, order tliis to be done for the present, but that the tenants should continue for their lives without payment of rent, and the land- lord is directed not to molest them, and after the death or departure of the tenants the houses to be palled down.— Harl. MSS., N. 299, fol. 7. * Harl. MS.S., p. 142, &c. It appears that the court of Star Chamber could not sentence to pun- ishment on the deposition of an eye-witness (Rushw. Abr., ii., 114) : a rule which did not pre- vent their receiving the most impefect and incon- closive testimony. R have been of late imposed according to the nature of the offense, and not the estate of the person. The slavish punishment of whipping," he proceeds to obseiTe, " was not introduced till a great man of the com- mon law, and otherwise a worthy justice, forgot his place of session, and brought it in this place too much in use."* It would be difficult to find precedents for the aggi-ava- ted cruelties inflicted on Leighton, Lil- burne, and others ; but instances of cutting off the ears may be found under Elizabeth. f The reproach, therefore, of arbitrary and illegal jurisdiction does not wholly fall on the government of Charles. They found themselves in possession of this almost un- limited authority. But doubtless, as far as die histoiy of proceedings in the Star Chamber ai'e recorded, they seem much more numerous and violent in the present reign than in the two pi'eceding. Rush- worth has preserved a copious selection of cases determined before this tribunal. They consist principally of misdemeanors, rather of an aggravated nature, such as dis- turbances of the public peace, assaults ac- companied with a good deal of violence, conspiracies, and libels. The necessity, however, for such a paramount court to restrain the excesses of powerful men no longer existed, since it can hardly be doubt- ed that the common administi-ation of the law was sufficient to give redress in the time of Charles the First, though we cer- tainly do find several instances of violence and outrage by men of a superior station ia life, which speak unfavorably for the state of manners in the kingdom. But the ob- * P. 36, 224. Instead of " the slavish punish- ment of whipping," the piiuted book has "the slavish speech of whispering," wliich of course en- tii-ely alters the sense, or, rather, makes nonsense. I have followed a MS. in the Museum (Hargrave, vol. 250), which agrees with the abstract of tliis ti'eatise by Rushworth, ii., 348. t Vallenger, author of seditious libels, was sen- tenced in the queen's reign to stand twice in the pillorj', and lose both his ears. — Harl. MSS., 6265, fol. 373. So, also, the conspirators who accused Archbishop Sandys of adulterj-. — Id., 376. And Mr. Pound, a Roman Catholic gentleman, who had suffered much before for his religion, was sentenced by that court, in 1603, to lose both his ears, to be lined £1000, and imprisoned for life, unless he de- clared who instigated him to charge Sergeant Phil- ips with injustice in condemning a neighbor of his to death. — Winwood, ii., 36. 258 COXSTITUTIOXAL HISTORY OF ENGLAXB [Chap. Vm ject of drawing so large a number of crim- inal cases into the Star Chamber seems to have been twofold : first, to inure men's minds to an authority more immediately connected with the crown than the ordi- naiy courts of law, and less tied down to any rules of pleading or evidence ; second- ly, to eke out a scanty revenue by penalties and foi-feitures. Absolutely regardless of the provision of the Great Chaiter, that no man shall be amerced even to the full ex- tent of his means, the counselors of the Star Chamber inflicted such fines as no court of justice, even in the present redu- ced value of money, would think of impos- ing. Little objection, indeed, seems to lie, in a free country, and with a well-regulated administi-ation of justice, against the impo- sition of weighty pecuniary penalties, due consideration being had of the offense and the criminal. But, adjudged by such a tri- bunal as the Star Chamber, where those who inflicted the punishment reaped the gain, and sat, like famished bu'ds of prey, with keen eyes and bended talons, eager to supply for a moment, by some wretch's ruin, the craving emptiness of the Excheq- uer, this scheme of enormous penalties became more dangerous and subversive of justice, though not more odious, than cor- poreal punishment. A gentleman of the name of AUington was fined c£l2,000 for mairying his niece. One, who had sent a challenge to the Earl of Northumberland, was fined d£ 5000 ; another, for saying the Earl of Suffolk was a base lord, ^£4000 to him, and a like sum to the king. Sir David Forbes, for opprobrious words against Loi-d Wentworth, incurred o£5000 to the king, and c£3000 to the partj-. On some soap- boilers, who had not complied with the req- uisitions of the newly-incorporated com- pany, mulcts were imposed of =£1500 and dElOOO. One man was fined and set in the pillory for engi-ossing corn, though he only kept what grew on his own land, asking more in a season of dearth than the over- :seers of the poor thought proper to give.* Some arbitrary regulations with respect to prices may be excused by a well-intention- ed, though mistaken policy. The charges of inns and taverns were fixed by the judg- * The ecarcitj' must have been very CTeat this season (1631), for he refused £2 18s. for the quarter of rye.— Rashworth. ii.. 110. es ; but even in those a corrupt motive was sometimes blended. The company of vint- ners, or victualers, having refused to pay a demand of the lord-treasurer, one penny a quart for all wine drank in their houses, the Star Chamber, without information filed or defense made, interdicted them from sell- ing or dressing victuals till they submitted to pay forty shillings for each tun of wine to the king.* It is evident that the sti-ong interest of the court in these fines must not only have had a tendency to aggravate the punishment, but to induce sentences of con- demnation on inadequate proof. From all that remains of proceedings in the Star Chamber, they seem to have been very frequently as iniquitous as they were se- vere. In many celebrated instances, the accused party suflfered less on the score of any imputed offense than for having provok- ed the malice of a powerful adversary, or for notorious dissatisfaction with the exist- ing government. Thus Williams, bishop of Lincoln, once lord-keep- Bishop er, the favorite of King James, the possessor for a season of the power that was turned against him, experienced the rancorous and ungi-ateful malignity of Laud, who, having been brought fol•^vard by Will- iams into the favor of the court, not only supplanted by his intrigues, and incensed the king's mind against his benefactor, but haraissed his retirement by repeated perse- cutions.f It will sufficiently illustrate the spirit of these times to mention that the sole oflTense imputed to the Bishop of Lin- coln in the last information against him in the Stai- Chamber was, that he had receiv- ed certain letters from one Osbaldiston, mas- ter of Westminster school, wherein some contemptuous nickname was used to denote Laud.t It did not appear that Williams had ever divulged these letters ; but it was * Rashworth, ii., 340. Garrard, the correspond- ent of Weutwoi'th, who sent him all London news, writes about this : " The attorney-general hath sent to all taverns to prohibit them to dress meat; some- what was required of them, a halfpenny a quart for French wine, and a penny for sack and other richer wines, for the king : the gentlemen vintners grew sullen, £md would not give it, so they are all well enough ser\-ed." — Strafford Letters, i., 507. t Racket's Life of Williams. Rashworth Abr., ii., 315, et post. Brodie, ii., 363. + Osbaldiston swore that he did not mean Laud ; an imdoubted perjurj-. Cha. L— 1629-40.] FROM HENRY VII. TO GEORGE II. 259 held that the concealment of a libelous let- ter was a high misdemeanor. Williams was therefore adjudged to pay c£oOOO to the king, and d63000 to the archbishop, to be imprisoned during pleasure, and to make a submission ; Osbaldiston to pay a still heav- ier fine, to bo deprived of all his benefices, to be imprisoned and make submission ; and, moreover, to stand in the pilloiy before his school in Dean's-yard, with his ears nailed to it. This man had the good foi-- tune to conceal himself; but the Bishop of Lincoln, refusing to make the required apol- ogy, lay about three years in the Tower, till released at the beginning of the Long Parliament. It might detain me too long to dwell par- ticularly on the punishments inflicted by the Court of Star Chamber in this reign. Such historians as have not written in order to palliate the tyranny of Charles, and espe- cially Rushworth, will fiu-nish abundant de- tails, with all those circumstances that por- tray the baibarous and tyrannical spirit of those who composed that tribunal. Two or three instances are so celebrated that I can not pass them over. Leighton, a Scots divine, having published an angry libel against the hierarchy, was sentenced to be publicly whipped at Westminster and set in the pilloiy, to have one side of his nose slit, one ear cut off, and one side of his cheek branded with a hot iron ; to have the whole of this repeated the next week at Cheapside, and to suffer perpetual impris- onment in the Fleet.* Lilburne, for dis- persing pamphlets against the bishops, was whipped from the Fleet Prison to West- minster, there set in the pillory, and ti-eat- Case of ed afterward with gi-eat cruelty, f Prynne. Prynne, a lawyer of uncommon eru- dition and a zealous Puritan, had printed a bulky volume, called Histi-iomastix, full of invectives against the theater, which he sustained by a profusion of learning. In the course of this, he adverted to the ap- peai'ance of courtesans on the Roman stage, * Mr. Brodie (Hist, of Brit. Emp., vol. ii., p. 309) observes, tliat lie can not find in Leighton's book (which I have never seen) the passage constantly brought forward by Laud's apologists, wherein he is supposed to have recommended the assassina- tion of the bishops. He admits, indeed, as does Harris, that the book was violent; bat what can be said of the punishment ? t Rushworth. State Trials. and by a satirical reference in his index, seemed to range all female actors in the class.* The queen, unfortunately, six weeks after the publication of Frynne's book, had performed a part in a mask at court. This passage was accordingly dragged to light by the malice of Peter Heylin, a chaplain of Laud, on whom the archbishop devolved the burden of reading this heavy volume in order to detect its offenses. Heylin, a big- oted enemy of eveiy thing Puritanical, and not scrupulous as to veracity, may be sus- pected of having aggi'avated, if not misrep- resented, the tendency of a book much more tiresome than seditious. Prynne, however, was already obnoxious, and the Star Cham- ber adjudged him to stand twice in the pil- lory, to be branded in the forehead, to lose both his ears, to pay a fine of t£5000, and to suflfer perpetual imprisonment. The dogged Puritan employed the leisure of a jail in writing a fresh libel against the hie- rarchy. For thi.s, with two other delin- quents of the same class. Burton a divine, and Bastwick a physician, he stood again at the bar of that terrible tribunal. Their de- meanor was what the comt deemed intol- erably contumacious, arising, in fact, from the despair of men who knew that no hu- miliation would procure them mercy.f Prynne lost the remainder of his ears in the piUory ; and the punishment was in- flicted on them all with extreme and de- signed cruelty, which they endured, as mar- tyrs always endure sulTering, so heroically as to excite a deep impression of sympathy * Id. Whitelock, p. 18. Harris's Life of Charles, p. 262. The unfortimate words in the index, " Women actors notorious whores," cost Prytme half his ears ; the remainder he saved by the hang- man's mercy for a second harvest. When he was brought again before the Star Chamber, some of the lords turned up his hair, and expi-essed great in- dignation that his ears had not been better cropped. — State Trials, 717. The most brutal and servile of these courtiers seems to have been the Earl of Dorset, though Clarendon speaks well of him. He was also impudently corrupt, declaring that he thought it no crime for a courtier that lives at a great expense in his attendance, W receive a re- ward to get a business done by a great man in fa- vor.— Rush. Abr., ii., 246. It is to be observed that the Star Chamber tribunal was almost as infamous for its partiality and con-uption as its cnieltj-. See proofs of this in the same work, p. 241. t The intimidation was so great, that no counsel dared to sign Pi-ynne's plea ; yet the court refused to receive it without such signature. — Rushworth, ii., 277. Strafford Letters, ii., 74. 260 CONSTITUTIONAL HISTORY OF ENGLAND [Chap. VIIL and resentment iu the assembled multi- tude.* They were sentenced to perpetual confinement in distant prisons. But their departure from London, and their reception on the road, were marked by signal expres- sions of pojmlar regard ; and their friends resorting to them even in Launceston, Chester, and CarnaiTon Castles, whither they were sent, an oi-der of council was made to transport them to the isles of the Channel. It was the very first act of the Long Parliament to restore these victims of tyranny to their families. Punishments by mutilation, though not quite unknown to the English law, had been of rare occur- rence ; and thus inflicted on men whose station appeared to render the ignominy of whipping and branding more intolerable, they produced much the same effect as the still greater cruelties of Mary's reign, in exciting a detestation for that ecclesiastical dominion which protected itself by means so atrocious. The person on whom public hati'ed chief- Character ly fell, and who proved, in a far of Laud, more eminent degi'ee than any oth- er individual, the evil genius of this unhappy sovereign, was Laud. His talents, though enabling him to acquire a largo portion of theological learning, seem to have been by no means considerable. There can not be a more contemptible work than his Diary ;t and his letters to Strafford display some smartness, but no great capacity. He man- aged, indeed, his own defense, when im- peached, with some ability ; but on such occasions ordinary men are apt to put forth a remarkable readiness and energy. Laud's inherent ambition had impelled him to comt the favor of Buckingham, of Williams, and of both the kings under whom he hved, till he rose to the see of Canterbuiy on Ab- bot's death, in 1C33. No one can deny that he was a generous patron of letters, and as ■warm in friendship as in enmity. But he had placed before his eyes the aggrandize- ment, first of the Church, and next of the * Id., 85. Rushw., 295. State Trials. Claren- don, who speaks in a very unbecoming manner of this sentence, admits that it excited general disap- probation.— P. 73. t [This has lately been republished at Oxford, 1939, under the title, " Autobioiyi-aphy of Arch- bishop Laud," with a preface, sufScieutly charac- teristic of its celebrated editor, who has subjoined tlie "Acts of his Martyrdom."] royal prerogative, as his end and aim in ev- ery action. Though not literally destitute of rehgion, it was so subordinate to worldly interest, and so blended in his mind with the impure alloy of temporal pride, that he became an intolei-ant persecutor of the Pu- ritan clergy, not fi'om bigotiy, which in its usual sense he never displayed, but syste- matic policy. And being subject, as his friends call it, to some infirmities of tem- per, that is, choleric, vindictive, harsh, and even cruel to a great degree, he not only took a prominent share in the severities of the Star Chamber, but, as his correspond- ence shows, perpetually lamented that he was restrained from going further lengths.* Laud's extraordinary favor with the king, through which he became a prime adviser in matters of state, rendered him secretly obnoxious to most of the council, jeiilous, as ministers must always be, of a churchman's overweening ascendency. His faults, and even his virtues, contributed to this odium; for, being exempt from the thirst of lucre, and, though in the less mature state of his fortunes, a subtle intriguer, having become frank through heat of temper and self-con- fidence, he discountenanced all schemes to serve the private interest of courtiers at the expense of his master's exhausted treasury, and went right onward to his object, the exaltation of the Church and crown. He aggi'avated the invidiousness of his own sit- uation, and gave an astonishing proof of his influence, by placing Juxon, bishop of Lon- don, a creature of his ov\ti, in the gi-eatest of all posts, that of lord-high-treasurer. Though Williams had lately been lord- keeper of the seal, it seemed more prepos- terous to place the treasurer's staflf in the hands of a churchman, and of one so little * Laud's character is justly and fairly drawn by May, neither iu tlie coarse caricature stjle of Piynne, nor with the absurdly flattering pencil of Clarendon. " The Archbishop of Canterbury was a main agent in this fatal work ; a man vigilant enough, of an active, or, rather, of a restless mind ; more ambitious to undertake than politic to carry on ; of a disposition too tierce and cruel for his coat; which notwithstanding he was so far from conceal- ing in a subtle wa}-, that he increased the en\'y of it by insolence. He had few vulgar and private vices, as being neither taxed of covetonsness, in- temperance, nor incontinence ; and, in a word, a man not altogether so bad in his personal character, as unfit for the state of England." — History of Parlia- ment, 19. Cha. I.— 1629-40.] FROM HEXRY VII. TO GEOUGE II. 261 distinguished even in his own profession, that the archbishop displayed his contempt of the rest of the council, especially Cotting- ton, who aspired to it, by such a recom- mendation.* He had previously procured the office of secretary of state for Winde- bank. But, though overawed by the king's infatuated partiality, the faction adverse to Laud were sometimes able to gi-atify their dislike, or to manifest their greater discre- * The following entry appears in Land's Diary (March 6, 1636): "Sunday, William Juxon, lord- bishop of London, made lord-high-treasurer of Eng- land: DO churchman had it since Henry VII. s time. I pray God bless him to cany it so that the Church may have honor, and the king and the state service and contentment by it. And now, if the Church will not hold themselves up under God, I can do no more. " Those who were far from Puritanism could not digest this strange elevation. James Howell writes to Wentworth : •' The news that keeps greatest noise here at this present, is that there is a new lord-treasurer ; and it is news indeed, it being now twice time out of mind since the white robe and tho white staff marched together; we begin to live here in the church triumphant ; and there wants but one more to keep the king's conscience, which is more proper for a churchman than his coin, to make it a triumvirate." — Straff. Letters, i., 5i-i. Garrard, another correspondent, expresses his surprise, and thinks Straflbrd himself, or Cot- tington, would have done better, p. 523. And after- ward, vol. ii., p. 2, " The clergy are so high here since the joining of the white sleeves with the white staff, that thei'e is much talk of having as secretary a bishop, Dr. Wren, bishop of Norwich, and as chancellor of the Exchequer, Dr. Bancroft, bishop of Oxford ; but this comes only from the young fry of the clergy ; little credit is given to it, but it is observed they swarm mightily about the court." The tone of these letters shows that the writer suspected that Wentworth would not be well pleased at seeing a churchman set over his head ; but in several of his own letters he posi- tively declares his aversion to the office, and per- haps with sinceritj-. Ambition was less predomi- nant in his mind than pride, and impatience of op- position. He knew that as lord-treasurer he would be perpetually thwarted and undemiined by Cot- tincton and others of the council. They, on the other hand, must have dreaded that such a col- league might become their master. Laud himself in his correspondence with Sti afford, never throws out the least hint of a wish that he should succeed Weston, which would have interfered with his own views. It must be added that Juxon redeemed the scandal of his appointment by an unblemished probity, and gave so little offense in this invidious greatness, that the Long Parliament never attack- ed him, and he remained in his palace at Fulham witliout molestation till 1617. tion, by opposing obstacles to his impetuous spirit. Of these impediments, which a rash and ardent man calls lukewarmness, in- l^^j dolence, and timidity, he frequent- Strafford, ly complains in his correspondence with the lord-deputy of Ireland — that Lord "Went- worth, so much better known by the title of Earl of Strafford, which he only obtained tho year before his death, that we may give it him by anticipation, whose doubtful fame and memorable end have made him nearly the most conspicuous character of a reign so fertile in recollections. Sti'afford had in his early years sought those local dignities to which his ambition probably was at that time limited, the representation of the county of York and the post of cus- tos rotulorura, through the usual channel of court favor. Slighted by the Duke of Buck- ingham, and mortified at the preference shown to the head of a rival family. Sir John SaviUe, he began to quit the cautious and middle course he had pursued in Par- liament, and was reckoned among the oppos- ers of the administration after the accession of Charles.* He was one of those who were made sheriffs of their counties in or- der to excludo them from the Parliament of 1626. This inspired so much resentment, tliat he signalized himself as a refuser of the arbiti'ary loan exacted the next year, and was committed, in consequence, to pris- on. He came to the third Parliament with a detennination to make the court sensible * Strafford's Letters, i., 33, &c. The letters of Wentworth in this period of his life show a good deal of ambition and resentment, but no great por- tion of public spirit. This collection of the Straf- ford letters forms a very important portion of our historical documents. Hume had looked at them very superficiaUj', and quotes them but twice. They furnished materials to Harris and Macaulay ; but the first is little read at present, and the sec- ond not at all. In a recent and deservedly popular publication, Macdiarmid's Lives of British States- men, the work of a young man of letters, who did not live to struggle through the distresses of that profession, the character of Strafford is drawn from the best authorities, and with abundant, perhaps excessive candor. Mr. Brodie has well pointed out that he has obtained more credit for the early period of his Parliamentarj- life than he deserves, by being confounded with Mr. Wentworth, mem- ber for Oxford, vol. ii., p. 249. Rusbworth has even ascribed to Sir Thomas Wentworth the speeches of this Mr. Wentworth in the second Parliament of Charies, from which it is notorious that the former had been excluded. 262 CONSTITUTIONAL HISTOEY OF ENGLAND [Chap. VIII. of his power, and possibly with some real zeal for the liberties of his countiy ; but patriotism unhappily, in his self-interested and ambitious mind, was the seed sown among thorns. He had never lost siglit of his hopes from the court ; even a tempora- ry reconciliation with Buckingham had been effected in 1627, which the favorite's levity soon broke ; and he kept up a close connec- tion with the treasurer Weston. Always jealous of a rival, ho contracted a dislike for Sir John Eliot, and might suspect that he was likely to be anticipated by that moi'e distinguished patriot in royal favors.* The hour of Wentworth's glory was when Charles assented to the Petition of Right, in obtaining which, and in overcoming the king's chicane and the hesitation of the Lords, he had been pre-eminently conspic- uous. From this moment he started aside from the path of tnie honor ; and being sud- denly elevated to the peei'age and a great post, the presidency of the council of the North, commenced a splendid but baleful career, that terminated at the scaffold, f Af- ter this fatal apostasy he not only lost all solicitude about those liberties which the Petition of Right had been designed to se- cure, but became their deadliest and most shameless enemy. The council of the North was erected by * Racket tells us, in his elegant style, that " Sir John Eliot of the vpest, and Sir Thomas Went- worth of the nortli, hoth in the prime of their age and wits, hoth conspicuous for able speakers, clashed so often in the House, and cudgeled one another with such strong contradictious, that it grew from an emulation between them to an en- mity. The Lord-treasurer Weston picked out the northern cock, Sir Thomas, to make hira the king's creature, and set him upon the fu'st step of his rising, which was wormwood in the taste of Eliot, who revenged himself upon the king in the bill of tonnage, and then fell upon the treasurer, and de- claimed against him, that he was the author of all the evils under which the kingdom was oppressed." He proceeds to inform us, that Bishop Williams offered to bring Eliot over, for which Wentworth never forgave him. — Life of Williams, p. 82. The magnanimous fortitude of Eliot forbids us to give credit to any surmise unfavorable to his glory, upon Buch indifferent authority ; but several passages in Wentworth's letters to Laud show his malice to- ward one who had perished in the great cause which, he had so basely forsaken. t Wentworth was brought over before the as- sassination of Buckingham. His patent in Il3 mer bears date 22d July, 1G28, a month previous to that event. Henry VHI. after the suppression of the gi-eat insurrection of 153C. It had a crim- inal jurisdiction in Yorkshire and the four more northern counties as to riots, conspira- cies, and acts of violence. It had also, by its original commission, a jurisdiction in civil suits, where either of the parties were too poor to bear the expenses of a process at common law, in which case the council might determine, as it seems, in a summa- ry manner, and according to equity. But this latter authority had been held illegal by the judges under Elizabeth.* In fact, the lawfulness of this tribunal in any respect was, to say the least, highly pi-oblematical. It was regulated by instructions issued from time to time under the great seal. Went- worth spared no pains to enlarge the juris- diction of his court. A commission issued in 1G32, empowering the council of the North to hear and determine all offenses, misdemeanors, suits, debates, controversies, demands, causes, things, and matters what- soever therein contained, within certain pre- cincts, namely, from the Humber to the Scots frontier. They were specially ap- pointed to hear and determine divers of- fenses, according to the course of the Star Chamber, whether provided for by act of Parliament or not ; to hear complaints ac- cording to the rules of the Court of Chan- ceiy, and stay proceedings at common law by injunction ; to attach persons by their sergeant in any part of the realm. f These inordinate poAvers, the soliciting and procuring of which, especially by a per- son so well versed in the laws and Consti- tution, appears to be of itself a sufficient ground for impeachment, were abused by Sti'afford to gratify his own pride, as well as to intimidate the opposers of arbitrary measures. Proofs of this occur in the pros- ecution of Sir David Foulis, in that of Mr. Bellasis, in that of Mr. Maleverer, for the circumstances of which I refer the reader to more detailed histoiy.t * Fourth Inst., c. 49. See, also, 13 Reports, 31. t Rymer, xis., 9. Rushworth, ii., 127. t Rushworth. Strafford's Trial, &c. Brodie, ii., 319. Straff. Letters, i., 145. In a letter to Lord Doncaster, pressing for a severe sentence on Fonlis, who had been guilty of some disrespect to himself as president of the North, Wentworth shows his abhorrence of liberty with all the bitterness of a renegado; and urges the " seasonable correcting a humor and liberty I find reign in these parts, of Cha. I— 1629-40.] FROM HENRY VII. TO GEORGE II. 263 Without resigning liis presidency of the northern council, Wentworth was ti'ans- plauted in 1633 to a still more extensive sphere, as lord-deputy of Ireland. This was the great scene on which he played his part ; it was here that he found abundant scope for his commanding energy and im- perious passions. The Richelieu of that island, he made it wealthier in the midst of exactions, and, one might almost say, hap- pier in the midst of oppressions. He curb- ed subordinate tyranny, but his own left a sting behind it that soon spread a deadly poison over Ireland. But of his merits and his injustice toward that nation I shall find a better occasion to speak. Two well-known instances of his despotic conduct in respect to single persons may just be mentioned : the deprivation and imprisonment of the Lord- chancellor Loftus for not obeying an order of the privy-council to make such a settlement as they prescribed on his son's marriage — a stretch of interference with private concerns which was aggravated by the suspected familiarity of the lord-deputy with the lady who was to reap advantage from it* — and, secondly, the sentence of death passed by a council of war on Lord Mountnorris, in Sti'afford's presence, and evidently at his instigation, on account of some very slight expressions which he had used in private society. Though it was never the deputy's intention to execute this judgment of his slaves, but to humiliate and trample upon Mountnoms, the violence and indecency of his conduct in it, his long persecution of the unfortunate prisoner af- ter the sentence, and his glorying in the act at all times, and even on his own ti'ial, are observing a superior command no further tbau they like themselves, and of questioning any profit of the crown, called upon by his majesty's ministers, which might enable it to subsist of itself, without being necessitated to accept of such conditions as others might easily think to impose upon it." Sept., 1632. — Somers Tracts, iv., 198. * Rushworth Abr., iii., 85. Clarendon, i., 390 (1826). The original editors left out some words, which brought this home to StrafTord. And if the case was as there seems every reason to believe, I would ask those who talk of this man's innocence, whether in any civilized country a more outrageous piece of tyranny has been committed by a goveni- or than to compel a nobleman of the highest sta- tion to change the disposition of his private estate, because that governor carried on an adulterous in- tercourse with the daughter-in-law of the person whom he treated thus imperiously ? irrefragable proofs of such vindictive bitter- ness as ought, if there were nothing else, to prevent any good man from honoring his memory.* The haughty and impetuous primate found a congenial spirit in the Correspond- lord-deputy. They unbosom to ^auS''" each other, in then- private let- Strafford, ters, their ardent thirst to promote the king's service by measures of more energy than they were permitted to exercise. Do we think the administration of Charles dm*- ing the interval of Parliaments rash and vio- lent? They tell us it was over-cautious and slow. Do we revolt from the severities of the Star Chamber? To Laud and Straf- ford they seemed the feebleness of excess- ive lenity. Do we cast on the crown law- yers the reproach of having betrayed their country's liberties? We may find that, with their utmost servility, they fell far be- hind the expectations of the court, and their scruples were reckoned the chief shackles on the half-emancipated prerogative. The system which Laud was longing to pursue in England, and which Strafford ap- proved, is frequently hinted at by the word thorough. " For the state," says he, " in- deed, my lord, I am for thorough ; for I see that both thick and thin stays somebody, where I conceive it should not, and it is im- possible to go thorough alone."f " I am very glad" (in another letter) " to read your * Clarendon Papers, i., 449, 543, 594. Rush- worth Abridg., iii., 43. Clar. Hist., i., 386 (1826). Strafford Letters, i., 497, et post. This proceeding against Lord Mountnorris excited much dissatis- faction in England, those of the council who dis- liked Strafford making it a pretext to inveigh against his aiTogance. But the king, invariably on the severe and arbitrary side, justified the meas- ure, which silenced the courtiers, p. 512. Be it added that the virtuous Charles took a bribe of £6000 for bestowing Mountnorris's office on Sir Adam Loftus, not out of distress through the par- simony of Parliament, but to purchase an estate in Scotland.— Id., 511. Hume, in extenuating the conduct of Strafford as to Mountnorris's ti-ia!, says, that, "sensible of the iniqidty of the sentence, he procured his majes- ty's free pardon to Mountnorris." There is not the slightest evidence to warrant the words in italics ; on the couti-ary, he always justified the sentence, and had most manifestly procured it. The king, in return to a moving petition of Lady Mountnorris, permitted his release from confine- ment, " on making such a submission as my lord- deputy shall approve. ' t Strafford Letters, vol. i.. 111. 264 COXSTITUTIOXAL HISTORY OF EXGLAXD [Chap. VUL lordsliip so resolute, and more to hear you affirm that the footing of them that go thor- ough for our master's service is not upon fee, as it hath been. But you are withal upon so many ifs, that by their help you may preserve any jnan upon ice, be it never so slippery. As first, if the common law- yers may be contained within their ancient and sober bounds ; if the word thorough be not left out, as I am certain it is ; if we grow not faint ; if we ourselves be not in fault ; if we come not to a peccatum ex te Israel ; if others will do their parts as thor- oughly as you promise for yourself, and justly conceive of me. Now I pray, with so many and such ifs as these, what may not be done, and in a brave and noble way? But can you tell when these ifs will meet, or be brought together? Howsoever, I am resolved to go on steadily in the way which you have formerly seen 7ne go ; so that (to put in one if too) if any thing fail of my hearty desires for the king and the Church's service, the fault shall not be mine."* "As for my marginal note" (he writes in anoth- er place), " I see you deciphered it well" (they frequently coiTesponded in cipher), " and I see you make use of it too ; do so still, thorough and thorough. O that I were where I might go so too! but I am shackled between delays and uncertainties ; you have a gi-eat deal of honor here for your proceedings ; go on a God's name." " I have done," he says some years after- ward, " with expecting of thorough on this side."f It is evident that the remissness of those with whom he was joined in the adminis- tration, in not adopting or enforcing suffi- ciently energetic measures, is the subject of the archbishop's complaint. Neither he nor Straflbrd loved the treasurer Weston, nor Lord Cottington, both of whom had a considerable weight in the council. But it is more difficult to perceive in what respects the thorough system was disregarded. He can not allude to the Church, which he ab- solutely governed through the High Com- mission Court. The inadequate punish- * Strafford Letters, vol. i., p. 1-55. t Strafford Letters, vol. i., p. 329. In other letters they complain of -what they call the Lady Mora, which seems to be a cant word for the inefBcient system of the rest of the eonncil, unless it is a per- sonal nickname for Weston. ments, as he thought them, imposed ontho refractory, formed a part, but not the whole, of his grievance. It appears to me that the great aim of these two persons wa.s to ef- fect the subjugation of the common law- yers. Some sort of tenderness for those constitutional privileges, so indissolubly in- terwoven with the laws they administered, adhered to the judges, even while they made great sacrifices of their integrity at the instigation of the crown. In the case of habeas corpus, in that of ship-money, we find many of them display a kind of half-compliance, a reservation, a distinction, an anxiety to rest on precedents, which, though it did not save their credit with the public, impau'ed it at court. On some more fortunate occasions, as we have seen, they even manifested a good deal of firmness in resisting what was urged on them. Chief- ly, however, in matter of prohibitions issu- ing fi-om the ecclesiastical courts, they were uniformly tenacious of their jurisdiction. Nothing could expose them more to Laud's ill Avill. I should not deem it improbable that he had formed, or rather adopted from the canonists, a plan, not only of rendering the spiritual jurisdiction independent, but of extending it to all civil causes, unless, perhaps, in questions of freehold.* * The bishops, before the Reformation, issued process from their courts in their own names. By the statute of 1 Edw. VL, c. 2, all ecclesiastical jurisdiction is declared to be immediately from the crown ; and it is directed that persons exercising^ it shall use the king's arms in their seal, and no other. This was repealed under Mary ; but her act is itself repealed by 1 Jac. I., c. 25, $ 48. This seems to revive the act of Edward. The spiritaal courts, however, continued to issue process in the bishop's name and with his seal. On some diffi- culty being made concerning this, it was referred by the Star Chamber to the twelve judges, who gave it under their bauds that the statute of Ed- ward was repealed, and that the practice of the ecclesiastical courts in this respect was agreeable to law. — Neal, 589. Kennet, 92. Rash. Abr., iii., 340. Whitelock says, p. 22, that the bishops aU denied that they held their jurisdiction fi-om the king, for which they were liable to heavy penal- ties. This question is of little consequence ; for it is stUl true that ecclesiastical jurisdiction, accord- ing to the law, emanates from the crown ; nor does any thing turn on the issuing of process in the bish- op's name, any more than on the holding courts- baron in the name of the lord. In Ireland, unless I am mistaken, the king's name is used in eccle- siastical proceedings. Laud, in his famous speech in the Stai- Chamber, 1637, and again on his trial. Cha. I.— 16i29-40.] FROM HENRY VJI. TO GEORGE II. 265 The presumption of common lawyers, and the difficulties they threw in the way of the Church and crown, are frequent themes with the two correspondents. " The Church," says Laud, " is so bound up in the forms of the common law, that it is not possible for me or for any luan to do that good which he would, or is bound to do; for your lordship sees, no man clearer, that tliey which have gotten so much power in and over the Church will not let go their hold ; they have indeed fangs with a wit- ness, whatsoever I was once said in a pas- sion to have."* Strafford replies : " I know no reason but you may as well loile the common lawyers in England as I, poor bea- gle, do here ; and yet that I do, and will do, in all that concerns my master, at the peril of my head. I am confident that the king, being pleased to set himself in the busi- ness, is able, by his wisdom and ministers, to cany any just and honorable action through all imaginary opposition, for real there can be none ; that to start aside for such panic fears, fantastic apparitions as a Prynne or an Eliot shall set up, were the meanest folly in the whole world ; that the debts of the crown being taken off, j''ou may govern as you please ; and most resolute I am that work may be done without bor- rowing any help forth of the king's lodgings, and that it is as downright a peccatum ex asserts episcopal jurisdiction (except wliat is called in foro contentioso) to be of divine right ; a doctrine not easily reconcilable vvitli the crown's supremacy- over all causes under the statute of Elizabeth, since any spiritual censure may be annulled by a lay tribunal, the commission of delegates ; and how this can be compatible with a divine authority in the bishop to pronounce it, seems not easy to prove. Laud, I have no doubt, would have put an end to this badge of subordination to the crown. The judges in Cawdrey's case, 5 Reports, held a very different language ; nor would Elizabeth have borne this assumption of the prelates as tamely as Charles, in his poor-spirited bigotiy, seems to have done. Stillingfleet, though he disputes at great length the doctrine of Lord Coke, in his fifth Re- port, as to the extent of the royal supremacy be- fore the first of Elizabeth, fully admits that since the statute of that year, the authority for keeping courts, in whose name soever they may be held, is derived from the king. — Vol. iii., 768, 778. This arrogant contempt of the lawyers manifest- ed by Land and his faction of piiests led to the ruin of the great churchmen and of the Church itself — by the hands, chieHy, of that powerful body they had insulted, as Clarendon has justly remarked. * Strafford Letters, vol. i., p. 111. te Israel as ever was, if all this he not ef- fected with speed and ease."* Strafford's indignation at the lawyers breaks out on other occasions. In writing to Lord Cot- tington, he complains of a judge of assize who had refused to receive the king's in- structions to the council of the North in evidence, and beseeches that he may be charged with this great misdemeanor be- fore the council-board. " I confess," he says, " I disdain to see the gownmen in this sort hang their noses over the flowers of the crown. "f It Avas his endeavor in Ire- land, as well as in Yorkshire, to obtain the right of determining civil suits. "I find," he says, "that my Lord Falkland was re- strained by proclamiation not to meddle in any cause between party and party, which did certainly lessen his power extremely : I know very well the common lawyers will be passionately against it, who are wont to put such a prejudice upon all other profes- sions, as if none were to be trusted or capa- ble to administer justice but themselves ; yet how well this suits with monarchy, when they monopolize all to be governed by their year books, you in England have a costly experience ; and I am sure his maj- esty's absolute power is not weaker in this kingdom, where hitherto the deputy and council-board have had a stroke with them."t The king indulged him in this, with a re- striction as to matters of inheritance. The cruelties exercised on Prynne and his associates have generally been reckoned among the great reproaches of the pi'imate. It has sometimes been insinuated that they were rather the acts of other counselors than his own. But his letters, as too often occurs, belie this charitable excuse. He expresses in them no sort of humane senti- ment toward these unfortunate men, but the utmost indignation at the oscitancy of those in power, which connived at the pub- lic demonstrations of sympathy. " A little more quickness," he says, " in the govern- ment would cure this itch of libeling. But what can you think of thorough when there shall be such slips in business of conse- quence ? What say you to it, that Prynne and his fellows should be suffered to talk what they pleased while they stood in the pillory, and win acclamations from the peo- * Strafford Letters, vol. i.. p. 173. t lb., p. 129. X lb., p. 201 . See, also, p. 223. 266 CONSTITUTIONAL HISTORY OF ENGLAND [Chap. VIII. pie, &c. ? By that which I have above written, your lordship will see that the Tri- umviri will be far enough from being kept dark. It is ti'ue that, when this business is spoken of, some men speak as your lordship writes, that it concerns the king and govern- ment more than me ; but when any thing comes to be acted against them, be it but the execution of a sentence, in which lies the honor and safety of all justice, yet there is little or nothing done, nor shall I ever live to see it otherwise."* The lord-deputy fully concurred in this theory of vigorous government. Theyi-eas- oned on such subjects as Cardinal Granville and the Duke of Alva had reasoned before them. " A prince," he says in answer, " that loseth the force and example of his punishments, loseth withal the gi-eatest part of his dominion. If the eyes of the Trium- viri be not sealed so close as they ought, they may perchance spy us out a shrewd turn when we least expect it. I fear we are hugely mistaken, and misapply our char- ity thus pitying of them, where we should indeed much rather pity ourselves. It is strange indeed," he observes in another place, " to see the phrensy which possess- eth the vulgar nowadays, and that the just displeasure and chastisement of a state should produce greater estimation, nay, reverence, to persons of no consideration either for life or learning, than the greatest and highest trust and employments shall be able to procure for others of unspotted con- vei'sation, of most eminent virtues and deep- est knowledge : a grievous and overspread- ing leprosy ! but where you mention a rem- edy, sure it is not fitted for the hand of ev- ery physician ; the cure, under God, must be \VT0ught by one iEsculapius alone, and i that, in my weak judgment, to be effected rather by corrosives than lenitives : less than thorough will not overcome it ; there is a cancerous malignity in it which must be cut forth, which long since rejected all other means, and therefore to God and him I leave it."t The honorable reputation that Sti'afford had earned before his apostasy stood princi- pally on two gi'ounds : his refusal to comply with a requisition of money without consent of Parliament, and his exertions in the Pe- tition of Right, which declared eveiy such » s-afford Lett., vol. ii., p. 100. t Id., p. 130. exaction to be contraiy to law. If any, therefore, be inclined to palliate his arbiti a- ry proceedings and principles in the execu- tive administration, his virtue will be brought to a test in the business of ship-money. If he shall be found to have given counte- nance and support to that measure, there must be an end of all pretense to integrity or patiiotism. But of this there are deci- sive proofs. He not only made every ex- ertion to enforce its payment in Yorkshire during the years 1639 and 1G40, for which the peculiar dangers of that time might fur- nish some apology, but long before, in his correspondence with Laud, speaks thus of Mr. Hampden, deploring, it seems, the su- pineness that had permitted him to dispute the crown's claim with impunity. '■ Mr. Hampden is a gi-eat brother [i. e., a Puri- tan], and the very genius of that people leads them always to oppose, as well civilly as ecclesiastically, all that ever authority or- dains for them ; but in good faith, were they right served, they should be whipt home into their right wits, and much beholden they should be to any one that would thor- oughly take pains with them in that kind."* " In tnith I still wish, and take it also to be a very charitable one, Mr. H. and others to his likeness were well whipt into their right senses ; if that the rod be so used as that it smarts not, I am the more sony."f Hutton, one of the judges who had been against the crown in this case, having some small favor to ask of Strafibrd, takes occa- sion in his letter to enter on the subject of ship-money, mentioning his own opinion in such a manner as to give the least possible offense, and with all qualifications in favor of the crown ; commending even Lord Finch's argument on the other side.t The lord-deputy, answering his letter after much delay, says, " I must confess, in a business of so mighty importance, I shall the less re- gard the forms of pleading, and do conceive, as it seems my Lord Finch pressed, that the power of levies of forces at sea and land for the veiy, not feigned, relief and safely of the public, is a propeit)"^ of sovereignty, as, we)-e the crown willing, it could not di- vest it thereof: Salus populi suprema lex; nay, in cases of exti-emity, even above acta of Parliament," &c. * Strafford Letters, vol. ii., p. 138. t Ibid., p. 158. t Ibid., p. 178. Cha. 1.— 1629-40.] FROM HENRY VII. TO GEORGE II. 267 It can not be forgotten that the loan of 1G26, for refusing which Wentwoith had sufl'ered imprisonment, had been demand- ed in a season of incomparably gi-eater diffi- culty than that when ship-money was lev- ied : at the one time war had been declared against both France and Spain, at the other the public tranquillity was hardly interrupt- ed by some bickerings with Holland. In avowing, therefore, the king's right to levy money in cases of exigency, and to be the sole judge of that exigencj^ he uttered a shame- less condemnation of his former virtues ; but, lest any doubt should remain of his perfect alienation from all principles of lim- ited monarchy, I shall produce still more conclusive proofs. He was sti'ongly and wisely against the war with Spain, into which Charles's resentment at finding him- self the dupe of that power in the business of the Palatinate nearly hurried him in 1637. At this time Sti-afford laid before the king a paper of considerations dissuading him from this course, and pointing out par- ticularly his want of regular troops.* " It is plain, indeed," he says, " that the opinion delivered by the judges, declaring the law- fulness of the assessment for the shipping, is the gi'eatest service that profession hath done the crown in my time ; but, unless his majesty hath the like power declared to raise a land army upon the same exigent of state, the crown seems to me to stand but upon one leg at home, to be considerable but by halves to foreign powers. Yet this sure, methinks, convinces a power for the sovereign to raise payments for land forces, and consequently submits to his wisdom and ordinance the transporting of the money or men into foreign states. Seeing, then, that this piece, well fortified, forever vindicates the royalty at home from under the condi- tions and resti'aints of subjects, renders us also abroad even to the gi-eatest kings the most considerable monarchy in Chi-isten- dom ; seeing, again, this is a business to be attempted and won from the subject in time of peace only, and the people first accus- tomed to these levies, when they may be called upon, as by way of prevention for our future safety, and keep his majesty thereby also moderator of the peace of Christendom, rather than upon the bleeding evil of an instant and active war ; I beseech . * Strafford Letters, vol. ii., p. 60. you, what piety to alliances is there that should divert a gi'eat and wise king forth of a path which leads so manifestly, so direct- ly, to the establishing his own throne, and the secure and independent seating of him- self and posterity in wealth, strength, and gloiy, far above any their progenitors, verily in such a condition as there were no more hereafter to be wished them in this world but that they would be veiy exact in their care for the just and moderate government of their people, which might minister back to them again the plenties and comforts of life, that they would be most searching and severe in punishing the oppressions and wrongs of their subjects, as well in the case of the public magisti'ate as of private per- sons, and lastly to be utterly resolved to ex- ercise this power only for public and neces- saiy uses ; to spare them as much and oft- en as were possible ; and that they never be wantonly vitiated or misapplied to any private pleasure or person whatsoever ? This being, indeed, the very only means to preserve, as may be said, the chastity of these levies, and to recommend their beau- ty so far forth to the subject, as being thus disposed, it is to be justly hoped they will never grudge the parting with then' mon- eys " Perhaps it may be asked, where shall so great a sum be had ? My answer is, procure it from the subjects of England, and profitably for them too. By this means preventing the raising upon them a land ar- my for defense of the kingdom, which would be by many degrees more chargeable ; and hereby also insensibly gain a precedent, and settle an authority and right in the crown to levies of that nature, which thread draws after it many huge and great advantages, more proper to be thought on at some other seasons than now." It is, however, remarkable that, with all Strafford's endeavors to render the king ab- solute, he did not intend to abolish the use of Parliaments. This was apparently the aim of Chai-les ; but, whether from remains of attachment to the ancient forms of liber- ty surviving amid his hatred of the real es- sence, or from the knowledge that a well- governed Parliament is the best engine for extracting money from the people, this able minister entertained very different views. He urged, accordingly, the convocation of 26S CONSTITUTIONAL HISTORY OF ENGLAND [Chap. VIIL one in Ireland, pledging himself for the ex- periment's success. And in a letter to a friend, after praising all that had been done in it, " Happy it were," he proceeds, " if we might live to see the like in England, ev- ery thing in its season ; but in some cases it is as necessary there be a time to forget, as ui others to learn ; and howbeit the peccant (if I may without offense so term it) humor be not yet wholly purged forth, yet do I conceive it in the way, and that once rightly corrected and prepared, we may hope for a Parliament of a sound constitution indeed ; but this must be the work of time, and of his majesty's excellent wisdom ; and this time it becomes us all to pray for and wait for, and when God sends it, to make the right use of it."* These sentiments appear honorable and constitutional. But let it not be hastily conceived that Sti-afford was a friend to the necessary and ancient pinvileges of those assemblies to which he owed his rise. A Parliament was looked upon by him as a mere insti-ument of the prerogative. Hence he was sti-ongly against permitting any mu- tual understanding among its members, by which they might form themselves into par- ties, and acquire sti'ength and confidence by previous concert. " As for restraining any private meetings either before or during Par- liament, saving only publicly in the House, I fuUy rest in the same opinion, and shall be very watchful and attentive therein, as a means which may rid us of a gi'eat ti'ouble, and prevent many stones of offense, which otherwise might, by malignant sphits, be cast in among us ;"f and, acting on this principle, he kept a watch on the Irish Par- liament, to prevent those intrigues which his experience in England had taught him to be the indispensable means of obtaining a conti'ol over the crown. Thus fettered and kept in awe, no one presuming to take a lead in debate from uncertainty of support. Parliaments would have become such mock- eries of their venerable name as the joint contempt of the court and nation must soon have annihilated. Yet so difficult is it to preseiTe this dominion over any represent- ative body, that the king judged far more discreetly than Sti'afford in desiring to dis- pense entirely with their attendance. * Strafford Letters, vol. i., p. 420. t Ibid., p. 246. See, also, p. 370. The passages which I have thus largely quoted will, I trust, leave no doubt in any reader's mind that the Earl of Strafford was party in a conspiracy to subvert the funda- mental laws and liberties of his countiy; for here are not, as on his trial, accusations of words spoken in heat, uncertain as to proof, and of ambiguous interpretation : nor of actions variously reported, and capable of some explanation; but the sincere unbosom- ing of the heart in letters never designed to come to light. And if we reflect upon this man's cool-blooded apostasy on the first lure to his ambition, and on his splendid abilities, which enhanced the guilt of that desertion, we must feel some indignation at those who have palliated all his iniquities, and even ennobled his memoiy with the attributes of patriot heroism. Great he surely was, since that epithet can never be denied without paradox to so much comprehension of mind, such ardor and energy, such courage and eloquence ; those commanding qualities of soul, which, impressed upon his dark and stern countenance, struck his cotemporaries with mingled awe and hate, and still live in the unfading colors of Vandyck;* But it may be reckoned as a sufficient ground for distnisting any one's attachment to the English Constitution, that he reveres the name of the Earl of Strafford. It was perfectly consonant to Laud's temper and principles of govern- conduct of ment to extirpate, as far as in Laud m the him lay, the lurking seeds of dis- ecution of affection to the Anglican Church ; P""'*"^- but the course he followed could in nature have no other tendency than to give them nourishment. His predecessor Abbot had perhaps connived to a limited extent at some iiTegularities of discipline in the Pu- ritanical clergy, judging not absurdly that their scruples at a few ceremonies, which had been aggravated by a vexatious rigor, would die away by degrees, and yield to that centripetal force, that moral attraction toward uniformity and obedience to custom, which Providence has rendered one of the * The unfavorable physiognomy of Strafford is noticed by writers of that time. — Somers Tracts, iv., 231. It did not prevent him from being ad- mired by the fair sex, especially at his trial, where, May says, they were all ou his side. The por- traits by Vandyck at Wentworth and Petivorth are well known; the latter appears eminently characteristic. Cha. I.— 1629-40.] FROM HENRY VII. TO GEORGE II. 269 great preservatives of political society. His hatred to popery and zeal for Calvinism, which undoubtedly were narrow and intol- erant, as well as his avowed disapprobation of those chiu'chmen who preached up arbi- b'aiy power, gained for this prelate the fa- vor of the party denominated Puritan. In all these respects, no man could bo more opposed to Abbot than his successor. Be- sides reviving the prosecutions for non-con- fonnity in their utmost strictness, wherein many of the other bishops vied with their primate, he most injudiciously, not to say wickedly, endeavored, by innovations of his own, and by exciting alarms in the suscep- tible consciences of pious men, to raise up new victims whom he might oppress. Those who made any difiiculty about his novel ceremonies, or even who preached on the Calvinistic side, were harassed by the High Commission Court as if they had been actual schismatics.* The most obnox- ious, if not the most indefensible, of these prosecutions were for refusing to read what was called the Book of Sports ; namely, a proclamation, or, rather, a renewal of that issued in the late reign, that certain feasts or wakes might be kept, and a great variety of pastimes used, on Sundays after evening service. f This was reckoned, as I have * See the cases of Workman, Peter Smart, &c., iu the common histories : Rushworth, Rapin, Neal, Macaulay, Brodie, and even Hume, on one side, and for what can be said on the other, Collier, and Laud's own defense on his trial. A number of persons, doubtless inclining to the Puritan side, had raised a sum of money to buy up impropria- tions, which they vested in trustees for the pur- pose of supporting lecturers ; a class of ministers to whom Laud was very averse. He caused the parties to be summoned before the Star Chamber, where their association was dissolved, and the im- propriations already purchased were confiscated to the crown. — Rushworth Abr., ii., 17. Neal, i., 556. t This originated in an order made at the Som- erset assizes by Chief-justice Richardson, at the request of the justices of peace, for suppressing these feasts, which had led to much disorder and profaneness. Laud made the privy-council re- prove the judge, and direct him to revoke the or- der.—Kennet, p. 71. Rushw. Abr., ii., 166. Hey- lin says, the gentlemen of the county were against Richardson's order, which is one of his habitual falsehoods. — See Rushw. Abr., ii., 167. I must add, however, that the proclamation was perfectly legal, and according to the spirit of the late act, 1 Car. I., c. 1, for the observance of the Lord's day. It has been rather misrepresented by those who already observed, one of the tests of Puri- tanism. But, whatever superstition there might be in that party's Judaical obseiTance of the day they called the Sabbath, it was iu itself preposterous, and tyrannical in its intention, to enforce the reading in church- es of this license, or rather recommenda- tion, of festivity. The precise clergy re- fused in general to comply with the requi- sition, and were suspended or deprived in consequence. Thirty of them were ex- comnmnicated in the single diocese of Nor- wich ; but as that part of England was rath- er conspicuously Puritanical, and the bish- op, one Wren, was the worst on the bench, it is highly probable that the general aver- age fell short of this.* Besides the advantage of detecting a la- tent bias in the clergy, it is probable that the High Church prelates had a politic end in the Book of Sports. The morose, gloomy spirit of Puritanism was naturally odious to the young and to men of joyous tempers. The comedies of that age are full of sneers at its formality. It was natural to think that, by enlisting the common propensities of mankind to Jimusement on the side of the Established Church, they might raise a di- version against that fanatical spirit which can hardly long continue to be the prevail- ing temperament of a nation. The Church of Rome, from which no ecclesiastical states- man would disdain to take a lesson, had for many ages perceived, and acted upon tho principle, that it is the policy of govern- ments to encourage a love of pastime and recreation in the people, both because it keeps them from speculating on religious and political matters, and because it renders them more cheerful, and less sensible to the evils of their condition ; and it may be re- marked by the way, that the opposite sys- tem, so long pursued in this country, wheth- er from a Pui-itanical spirit, or from the wantonness of petty authority, has no such gi-ounds of policy to recommend it. Thus much, at least, is certain, that when the have not attended to its limitations, as Neal and Mr. Brodie. Dr. Lingard, ix., 422, has stated the matter rightly. * Neal, 569. Rushworth Abr., ii., 166. Collier, 758. Heylin's Life of Laud, 241, 290. The last writer extenuates the persecution by Wren ; but it is evident by his own account that no suspension or censure was taken off till the party conformed and read the declaration. 270 COXSTITUTIOXAL HISTORY OF EXGLAXD [Chap. vm. Puritan paity employed their authority in j proscribing all diversions, in enforcing all the Jewish rigor about the Sabbath, and gave that repulsive air of austerity to the face of England of which so many singular illustrations are recorded, they rendered ' their own yoke intolerable to the youthful and gay ; nor did any other cause, perhaps, so materiaUy conti'ibute to bring about the Restoration. But mankind love sport as little as pi-ayer by compulsion ; and the im- ' mediate effect of the king's declaration was to produce a far more scrupulous abstinence from diversions on Sundaj's than had been practiced before. The resolution so evidently taken by the court, to admit of no half conformity in re- ligion, especially after Laud had obtained an unlimited sway over the king's mind, convinced the Puritans that England could no longer afford them an asylum. The state of Europe was not such as to encour- age their emigi-ation, though many were well received in Holland ; but, turning their eyes to the newly-discovered regions be- yond the Atlantic Ocean, they saw a secure place of refuge from present tyranny, and a boundless prospect for future hope. They obtained from the crown the charter of Massachusetts Bay in 1629. About three hundred and fifty persons, chiefly or whol- ly of the Independent sect, sailed with the first fleet. So many followed in the sub- sequent years, that these New England set- tlements have been supposed to have drawn near half a million of money fi'om the moth- er-countiy before the civil wars.* Men of a higher rank than the first colonists, and now become hopeless alike of the civil and religious liberties of England — men of ca- pacious and commanding minds, formed to be the legislators and generals of an infant republic — the wise and cautious Lord Say, the acknowledged chief of the Independent sect — the brave, open, and enthusiastic Lord Brooke — Sir Arthur Hazlerig — Hampden, ashamed of a country for whose rights he had fought alone — Cromwell, panting with energies that he could neither control nor explain, and whose unconquerable fire was still wrapped in smoke to every eye but that of his kinsman Hampden, were pre- paring to embark for America, when Laud, * IseaJ, p. 546. I do not know how he makes bis compatation. for his own and his master's curse, procur- ed an order of council to stop their depart- ure.* Besides the reflections which such an instance of destructive infatuation must suggest, there are two things not unworthy to be remarked : first, that these chiefs of the Puritan sect, far from entertaining those schemes of oveituming the government at home that had been imputed to them, look- ed only in 16.38 to escape from imminent tyranny : and, secondly, that the views of the archbishop Avere not so much to render the Church and crown secure from the at- tempts of disaffected men, as to gratify a malignant humor by persecuting them. These severe proceedings of the court and hierarchy became more odi- Favor shown ous on account of their suspected J? Catholics. . ' . Tendency to leanmg, or, at least, notorious m- iheir relig- dulgence, toward popery. With some fluctuations, according to circumstan- ces or changes of influence in the council, the policy of Charles was to wink at the domestic exercise of the Catholic religion, and to admit its professors to pay composi- tions for recusancy which were not regu- larly enforced.f The Catholics willingly submitted to this mitigated rigor, in the san- * A proclamation, dated May 1, 1633, reciting that the king was informed that many persona went yearly to New England in order to be out of the reach of ecclesiastical authority, commands that no one shall pass without a license, and a tes- timonial of conformity from the minister of his par- ish.— Rymer, xx., 223. Laud, in a letter to Straf- ford, ii., 169, complains of men running to New England, when there was a want of them in Ire- land. And why did they so, but that any track- less wilderness seemed better than his own or his fnend's tjTanny ? In this letter he laments that he is left alone in the envious and thorny part of the work, and has no encouragement. t In thirteen years, ending with 1640, but X40?0 was levied on recusants bj- process from the Ex- chequer, according to Commons' Journals, 1 Dec, 1640. But it can not be denied that they paid con- siderable sums by way of composition, though less, probably, than in former times. — Lingard, ix., 424, &c., note G. Weston is said by Clarendon to have oflfended the Catholics by enforcing penalties to raise the revenue. One priest only was executed for religion before the meeting of the Long Parlia- ment.— Butler, iv., 97. And though, for the sake of appearance, proclamations for arresting priests and recusants sometimes came forth, they were al ways discharged in a short time. The number pardoned in the first sixteen years of the king is said to have amounted, in twenty-nine counties only, to 11.970. — Neal, 604. Clarendon, i., 261, con- firms the s3-stematic indulgence shown to Catho- Cha. I.— 1629-40.] FROM HENRY VII. TO GEORGE 11. 271 guine expectation of far more prosperous „ days. I shall, of course, not cen- Expectations entertained sure this part 01 his administra- by them. ^^^^ ^ -^^^ jj^^j. connivance at the resort of Catholics to the queen's chapel in Somerset House, though they used it with much ostentation, and so as to give excessive scandal, was any moi'e than a just sense of toleration would have dictated.* Unfortunately, the prosecution of other sectaries renders it difficult to as- cribe such a libei'al principle to the council of Charles the First. It was evidently true, what the nation saw with alarm, that a proneness to favor the professors of this religion, and to a considerable degi'ee the religion itself, was at the bottom of a con- duct so inconsistent with their system of government. The king had been persuad- ed, in 1635, through the influence of the queen, and probably of Laud,f to receive privately, as an accredited agent from the Mission of court of Rome, a secular priest, Panzani. named Panzani, whose ostensible instructions were to effect a reconciliation of some violent differences that had long subsisted between the secular and regular clergy of his communion. The chief mo- tive, however, of Charles was, as I believe, so far to conciliate the pope as to induce him to withdraw his opposition to the oath of allegiance, which had long placed the Catholic laity in a veiy invidious condition, and widened a breach which his majesty had some hopes of closing. For this pur- pose, he offered any reasonable explanation which might leave the oath free from the slightest appearance of infringing the papal supremacy. But it was not the policy of Rome to make any concession, or even en- ter into any treaty, that might tend to im- lics, which Dr. Lingard seems, reluctantly and by silence, to admit. * Strafford Letters, i., 505, 524 ; ii., 2, 57. t Heylin, 286. The very day of Abbot's death, an offer of a cardinal's hat was made to Laud, as he tells us in his Diarj', " by one that avowed abil- ity to perform it." This was repeated some days afterward, Ang. 4th and 17th, 1633. It seems very questionable whether this came fi-om authority. The new primate made a strange answer to the first application, which might well encourage a second; certainly not what might have been ex- pected from a steady Protestant. If we did not read this in his own Diary, we should not believe it. The offer, at least, proves that he was suppos- ed capable of acceding to it. pair her temporal authority. It was better for her pride and ambition that the English Catholics should continue to hew wood and draw water, their bodies the law's slaves, and their souls her own, than, by becoming the willing subjects of a Protestant sover- eign, that they should lose that sense of de- pendency and habitual deference to her commands in all worldly matters, which states wherein their faith stood established had ceased to display. She gave, there- fore, no encouragement to the proposed explanations of the oath of allegiance, and even instructed her nuncio Con, who suc- ceeded Panzani, to check the precipitance of the English Catholics in contributing men and money toward the army raised against Scotland in 1639.* There might, indeed, be some reasonable suspicion that the court did not play quite fairly with this body, and was more eager to extort what it could from their hopes than to make any substantial return. The favor of the administration, as well as the antipathy that every Parliament had displayed toward them, not unnaturally ren- dered the Catholics, for the most part, as- serters of the king's arbitrary power. f * Clarendon State Papers, ii., 44. It is always important to distinguish dates. By the year 1639, the court of Rome had seen the fallacy of those hopes she had previously been led to entertain, that the king and Church of England would return to her fold. This might exasperate her against liim, as it certainly did against Laud; besides which, I should suspect the influence of Spain in the conclave. t Proofs of this abound in the first volume of the collection just quoted, as well as in other books. The Catholics were not, indeed, mianiiuous in the view they took of the king's prerogative, which became of importance in the controversy as to the oath of allegiance, one party maintaining that the king had a right to put his own explanation on that oath, which was more to be regarded than the sense of Parliament, while another denied that they could conscientiously admit the king's inter- pretation against what they knew to have been the intention of the Legislature who imposed it. A Mr. Courtney, who had written on the latter side, was imprisoned in the Tower on pretext of recusancy, but really for having promulgated so obnoxious an opinion. — P. 258, et alibi. Memoirs of Panzani. p. 140. The Jesuits were much against the oath, and, fi-om whatever cause, threw all the obstacles they could in the way of a good under- standing between the king and the pope. One reason was their apprehension that an article of the treaty would be the appointment of a Catholic bishop in England; a matter about which the 272 COXSTITUTIOXAL HISTOttY OF ENGf AXD [Chap. VIII. This again increased the popular prejudice. But nothing excited so much alarm as the perpetual conversions to their faith. These had not been quite unusual in any age since the Reformation, though the balance had been very much inclined to the opposite side. They became, however, under Charles, the news of every day; Protestant clergymen in several instances, but especially women of rank, becoming proselytes to a religion so seductive to the timid reason and suscep- tible imagination of that sex. They whose minds have never strayed into the wilder- ness of doubt, vainly deride such as sought out the beaten path their fathers had trod- den in old times ; they whose temperament gives little play to the fancy and sentiment, want power to comprehend the charm of superstitious illusions, the satisfaction of the conscience in the performance of posi- tive rites, especially with privation or suf- fering, the victorious self-gratulation of faith in its ti-iumph over reason, the romantic tenderness that loves to rely on female pro- tection, the graceful associations of devotion with all that the sense or the imagination can require — the splendid vestment, the fragrant censer, the sweet sounds of choral harmony, and the sculptured form that an intense piety half endows with life. These springs were touched, as the variety of hu- man chai-acter might require, by the skillful hands of Romish priests, chiefly Jesuits, whose numbers in England were about 250,* concealed under a lay garb, and com- bining the courteous manners of gentlemen with a refined experience of mankind, and a logic in whose labyrinths the most practi- cal reasoner was perplexed. Against these fascinating whiles the Puritans opposed oth- er weapons from the same armoiy of hu- man nature ; they awakened the pride of reason, the stern obstinacy of dispute, the names, so soothing to the ear, of free inqui- ry and private judgment. They inspired an abhorrence of the adverse party that seiTed as a baiTier against insidious ap- proaches. But far different principles ac- members of that Church have been quarrelia? ev- er since the reisn of Elizabeth, but too trifling for onr notice in this place. More than half Panzani's Memoirs relate to it. * Memoirs of Panzani, p. 207. This is a state- ment by Father Leander; in another place, p. 140, they are reckoned at 360. There were about 1^0 other regulars, and 5 or 600 secular priests. tuated the prevailing party in the Church of England. A change had for some years been wrought in its tenets, and still more in its sentiments, which, while it brought the whole body into a sort of approximation to Rome, made many individuals shoot, as it were, from their own sphere, on coming within the stronger attraction of another. The charge of inclining toward popeiy, brought by one of our religions parties against Laud and his colleagues with invid- ious exaggeration, has been too indignantly denied by another. Much, indeed, will de- pend on the definition of that obnoxious word, which one may restrain to an ac- knowledgment of the supremacy in faith and discipline of the Roman See, while an- other comprehends in it all those tenets which were rejected as coiTuptions of Christianity at the Reformation, and a third may extend it to the ceremonies and eccle- siastical obseiTances which were set aside at the same time. In this last and most enlarged sense, which the vulgar naturally adopted, it is notorious that all the innova- tions of the school of Laud were so many approaches, in the exterior worship of the Church, to the Roman model. Pictures were set up or repaired ; the communion- table took the name of an altar : it was sometimes made of stone ; obeisances were made to it ; the crucifix was sometimes placed upon it; the dress of the ofliciating priests became more gaudy ; churches were consecrated with sti'ange and mystical pa- geantiy.* These petty superstitions, which would of themselves have disgusted a nation accustomed to despise as well as abhor the pompous rites of the Catholics, became more alarming from the evident bias of some leading churchmen to parts of the Romish theology. The docti'ine of a real presence, distinguishable only by vagueness of defini- tion from that of the Church of Rome, was generally held.f Montagu, bishop of Chi- * Kennet, 73. Harris's Life of Charles, 220. Collier, 772. Brodie, ii., 224, note. Neal, p. 572, &c. Laud, in his defense at his trial, denies or extenuates some of the charges. There is, how- ever, full proof of all that I have said in my text. The famous consecration of St. Catharine s Creed Church in 1C31 is mentioned by Rushwortb, Wel- vrood, and others. Laud said in his defense that be borrowed the ceremonies from Andrews, who had found them in some old liturgy. t lu Bishop Andrews's answer to BeUarmine, Cha. I.— 1629-40.] FROM HENllY VII. TO GEORGE 11. 273 Chester, already so conspicuous, and justly reckoned the chief of the Romanizing fac- tion, went a considerable length toward ad- mitting the invocation of saints ; prayers for the dead, which lead naturally to the tenet of purgatory, were vindicated by many ; in fact, there was hardly any distinctive opin- ion of the Church of Rome which had not its abettors among the bishops, or those who wrote under their pati-onage. The practice of auricular confession, which an aspiring clergy must so deeply regret, was frequent- ly inculcated as a duty, and Laud gave just offense by a public declaration, that in the disposal of benefices, he should, in equal de- grees of merit, prefer single before married priests.* They incun-ed scarcely less odi- he says, Praesentiam credimus non minus quam vos veram ; de modo prasentiK nil teniere definimus. And soon afterward: Nobis vobiscum de objecto convenit, de modo lis omnis est. De hoc est, lide firmd tenemns quod sit, de hoc modo est, ut sit Per, sive In, sive Cum, sive Sub, sive Trans, nul- lum inibi verbum est. I quote from Casaubon's Epistles, p. 393. This is, reduced to plain terms : We fully agree with you that Christ's body is ac- tually present in the sacramental elements, in the same sense as you use the word ; but we see no cause for determining the precise mode, whether by transubstantiation or otherwise. The doctrine of the Church of England, as evi- denced by its leading ecclesiastics, underwent a rhange in the reign of James, through Andrews, Casaubon, and others, who deferred wholly to an- tiquity. In fact, as I have elsewhere observed, there can be but two opinions, neglecting subordi- nate differences, on this famous controversy. It is clear to those who have attended to the subject, that the Anglican Reformers did not hold a local presence of Christ's human body in the consecra- ted bread itself, independent of the communicant, or, as the technical phrase was, extra usum ; and it is also clear that the divines of the latter school did 80. This question is rapdered intricate at first sight, partly by the strong figurative language which the early Refoimers employed in order to avoid shocking the prejudices of the people, and partly by the incautious and even absurd use of the word real presence to mean real absence, which is common with modem theologians. [The phrase "real presence" is never, I believe, used by our writers of the 16th age but as synon- ymous with corporeal, and consequently is condem- ned by them. Cranmer calls it, " that error of the real presence," i., Ixxv. Jewel challenges his ad- versary to produce any authority for those words from the fathers. I do not know when it came in- to use ; probably under James, or, it may be, rath- er earlier.] * Heylin's Life of Laud, p. 219. He probably imbibed this, like many other of his prejudices, from Bishop Andrews, whose epitaph in the S urn by their dislike of the Calvinistic sys- tem, and l)y what ardent meu construed into a dereliction of the Pi'otestant cause, a more reasonaijle and less dangerous theo- ry on the nature and reward of human vir- tue than tliat which the fanatical and pre- sumptuous spirit of Luther had held forth as the most fundamental principle of his Reforaiation. It must be confessed that these English theologians Avere less favorable to the papal supremacy than to most other distinguish- ing tenets of the Catholic Church. Yet even this they were inclined to admit in a considerable degree, as a matter of positive, though not divine institution, content to make the doctrine and discipline of the fifth cen- tury the rule of their bastard reform. An extreme reverence for what they called the primitive Church had been the source of their en-ors. The first Reformers had paid little regard to that authority. But as learn- ing, by which was then meant an acquaint- ance with ecclesiastical antiquity, grew more genei'al in the Churcli, it gradually inspired more respect for itself; and men's judgment in matters of religion came to be measured by the quantity of their erudi- tion.* The sentence of the early writers, including the fifth and perhaps sixth centu- ries, if it did not pass for infallible, was of prodigious weight in controversy. No one in the English Church seems to have con- tributed so much toward this relapse into superstition as Andrews, bishop of Win- chester, a man of eminent learning in this kind, who may be reckoned the founder of the school wherein Laud was the most prominent disciple, f Church of St. Savior's in Southwark speaks of him as having received a superior reward in heaven on account of his celibacy ; coelebs migravit ad aui-eo- 1am coelestem. — Biog. Britannica. Aureola, a word of no classical authority, means, in the style of popish divinitj', which the author of this epitaph thought fit to employ, the crown of virginity. — See Du Cange, in voc. * See Life of Hammond, in Wordsworth's Ec- cles. Biography, vol. v., 343. It had been usual to study divinity in compendiums, chiefly drawn up in the sixteenth century. King James was a great favorer of antiquity, and prescribed the study of the fathers in liis Instructions to the Universi- ties in 1616. t Andrews gave scandal in the queen's reign by preaching at court, " that contrition, without con- fession and absolution, and deeds worthy of repent- ance, was not sufficient; that the ministers had 274 CONSTITUTIONAL HISTORY OF ENGLAND [Chap. VIIL A characteristic tenet of this party was, as I have aU'eady observed, that episcopal government was indispensably requisite to a Christian Church.* Hence they treated the Presbyterians with insolence abroad, and severity at home. A brief to be read in churches for the sufferers in the Palati- nate having been prepared, wherein they were said to profess the same religion as ourselves, Laud insisted on this being struck out.f The Dutch and Walloon churches in England, which had subsisted since the Reformation, and which various motives of policy had led Elizabeth to protect, were harassed by the primate and other bishops for their want of conformity to the Anglican ritual. t The English ambassador, instead of frequenting the Huguenot church at Charenton, as had been the former prac- tice, was instructed to disclaim all fraterni- ty with their sect, and set up in his own chapel the obnoxious altar and the other in- novations of the hierarchy. § These impol- tlie two keys of power and knowledge delivered unto tliem ; that whose sins soever they remitted upon earth, should be remitted in heaven. The court is full of it, for such doctiiue was not usually taught there." — Sidney Letters, ii., 185. Han-ing- ton also censures him for an attempt to bring in auricular confession. Nugae Antiquae, ii., 192. In his own writings against Pen'on, he tlu-ows away a great part of what have always been considered tlie Protestant doctrines. * Hall, bishop of Exeter, a very considerable person, wrote a treatise on the Divine Institution ■of Episcopacy, which, according to an analysis given by Heyliu and others of its leading positions, is so much in the teeth of Hooker's Ecclesiastical Polity, that it might pass for an answer to it. Yet it did not quite come up to tlie primate's standard, -who made him alter some passages which looked too hke concessions. — Heyliu's Life of Laud, 374. Collier. 789. One of his offenses was the asserting tlie pope to be anti-Christ, which displeased the king as well as primate, though it had been ortho- dox under James. t Collier, 764 Neal, 582. Heylin, 288. i Collier, 753. Heylin. 260. § Clarendon, iii., 3C6. State Papers, i., 338. " Lord Scudamore, the English ambassador, set up an altar. Sec, in the Laudeau stjle. His success- or. Lord Leicester, spoke to the archbishop about going to Charenton ; and telling him Lord Scuda- more did never go thither. Laud answered, ' He is the wiser.' Leicester requested his advice what he should do, in order to sift his disposition, being himself resolved how to behave in that matter. But the other wouid only say that he left it to his discretion. Leicester says he had many reasons to think that for his going to Charenton the arch- bishop did him all the ill offices he could to the itic and insolent proceedings gave the for- eign Protestants a hati'ed of Charles, which they retained through all his misfortunes. This alienation from the foreign church- es of the Reformed persuasion had scarce- ly so important an effect in begetting a predilection for that of Rome, as the lan- guage frequently held about the Anglican separation. It became usual for our church- men to lament the precipitancy with which the Reformation had been conducted, Emd to inveigh against its principal instruments. The Catholic writers had long descanted on the lust and violence of Henry, the pretend- ed licentiousness of Anne Boleyn, the ra- pacity of Cromwell, the pliancy of Cran- mer ; sometimes with great truth, but with much of invidious misrepresentation. These topics, wliich have no kind of operation on men accustomed to sound reasoning, pro- duce an unfailing effect on ordinary minds. Nothing incurred more censure than the dissolution of the monastic orders, or at least the alienation of their endowments ; acts ac- companied, as we must all admit, with great rapacity and injustice, but which the new school branded with the name of sacrilege. Spelman, an antiquary of eminent learning, was led by bigotry or subserviency to com- pose a wretched tract called the Histoiy of Sacrilege, with a view to confirm the vul- gar superstition that the possession of estates king, representing him as a Puritan, and conse- quently, in his method, an enemy to monarchical government, though he had not been very kind be- fore. The said archbishop, he adds, would not countenance Blondel's book against the usurped power of the pope." — Blencowe's Sidney Papers, 261. " To think well of the Reformed religion," says Northmnberlaud in IS^''' " enough to make the archbishop an enemy ; and though he can not for shame do it in pubhc, yet in private he will do Leicester all the mischief he can." — Collins's Sid- ney Papers, ii., 623. Such was the opinion entertained of Laud by those who could not reasonably be called Puritans, except by such as made that word a synonjTU for Protestant. It would be easy to add other proofs. The prosecution in the Star Chamber against Sher- field, recorder of Salisbur\-, for destn^jong some su- perstitious pictures in a church, led to a display of the aversion many of the council entertained for popery, and their jealousy of the archbishop's bias. They were with difficulty brought to condemn Sherfield, and passed a sentence at last very un- Uke those to which they were accustomed. — Rush- worth. State Trials. Hume misrepresents the case. Cha. I.— 1629-40.] FROM HENRY VII. TO GEORGE II. 275 alienated from the Church entailed a sure curse on the usurper's posterity. There is some reason to suspect that the king en- tertained a project of restoring all impro- priated hereditaments to the Church. It is alleged by one who had much access to Laud, that his object in these accommo- dations was to draw over the more moder- ate Romanists to the English (Jhurch, by extenuating the differences of her faith, and rendering her worship more palatable to their prejudices.* There was, however, good reason to suspect, from the same writ- er's account, that some leading ecclesiastics entertained schemes of a complete reun- ion ;f and later discoveries have abundantly confirmed this suspicion. Such schemes have doubtless been in the minds of men not inclined to offer every sacrifice ; and during this very period Grotius was exert- ing his talents (whether judiciously or oth- erwise we need not inquire) to make some sort of reconciliation and compromise ap- pear practicable. t But we now know that the views of a party in the English Church were much more extensive, and went al- most to an entire dereliction of the Protes- tant doctrine. The Catholics did not fail to anticipate the most favorable consequences from this turn in the Church. The Clarendon State Papers, and many other documents, contain remarkable proofs of their sanguine and not unreasonable hopes. "Weston, the lord- treasurer, and Cottington, were already in secret of their persuasion, though the for- mer did not take much pains to promote their interests. No one, however, showed them such decided favor as Secretary Windebank, through whose hands a corre- spondence was cairied on with the court of Rome by some of its agents. § They * Heylin's Life of Laud, 390. t Id., 388. The passage is very remarkable, but too long to be extracted in a work not directly ec- clesiastical. It is rather ambiguous ; but the Me- moirs of Panzani afford the key. t [I should now think less favorably of Grotius, and suspect that he would ultimately have made every sacrifice. See Hist, of Literature of 15th, 16th, and 17th centuries, vol. iii., p. 58 (first edi- tion). 184.5.] § The Spanish ambassador applies to Winde- bank, 1C33, to have a case of books restored that had been carried from the custom-house to Arch- bishop Abbot. "Now he is dead, I make this de- mand upon liis efi'ects and library, that they may exult in the peaceful and flourishing state of their religion in England as compared with fornier times. The recusants, they write, were not molested ; and if their com- positions were enforced, it was rather from the king's want of money than any desire to injure their religion. Their rites were freely exercised in the queen's chapel and those of ambassadors, and, more privately, in the houses of the rich. The Church of England was no longer exasperated against them ; if there was ever any prosecution, it was to screen the king from the reproach of the Puritans. They drew a flattering picture of the resipiscence of the Anglican party, who are come to acknowledge the truth in some articles, and difier in others rather verbally than in substance, or in points not fundamental ; who hold all other Prot- estants to be schismatical, and confess the primacy of the Holy See, regretting the separation already made, and wishing for reunion ; who profess to pay implicit re- spect to the fathers, and can best be assail- ed on that side.* These letters contain, no doubt, a partial I'epresentation ; that is, they impute to the Anglican clergy in general what was only true of a certain number. Their aim was to inspire the court of Rome with more fa- vorable views of that of England, and thus to pave the way for a permission of the oath of allegiance, at least with some modification of its terms. Such flattering tales naturally excited the hopes of the Vatican, and con- tributed to the mission of Panzani, who was instructed to feel the pulse of the nation, and communicate more unbiased informa- tion to his court than could be expected from the English priests. He confirmed, by his letters, the general truth of the for- mer statements as to the tendency of the Anglican Church, and the favorable dispo- sitions of the court. The king received him secretly, but with much courtesy ; the queen and the Catholic ministers, Cotting- ton and Windebank, with unreserved confi- dence. It required all the adroitness of an Italian emissary fi'om the subtlest of courts be restored to me; as his majesty's order at that time was ineffectual, as well as its appearing that there was nothing conhaband or prohibited." A list of these books follows, and is curious. Tliey consisted of English popish ti-acts by wholesale, in- tended, of course, for circulation. — Clar. State Pa- pers, 66. * Clarendon State Papers, 19", &c. 276 to meet their demonstrations of friendship without too much committing his employ- ers. Nor did Panzani altogether satisfy the pope, or at least his minister, Cardinal Bar- berini, in this respect.* * Id., 249. The Memoirs of Panzani, after fur- nishing some materials to Dodd's Church History, were published by Mr. Berington in 1794. They are, however, become scarce, and have not been much quoted. It is plain that they were not his own work, but written by some dependent, or per- son in his confidence. Their truth, as well as au- thenticity, appears to me quite beyond controver- sy ; they coincide, in a remarkable manner, with all our other information ; the names and local de- tails are particularly accurate for the work of a foreigner; in short, they contain no one fact of any consequence which there is reason to distrust. Some account of them may be found in Butler's Engl. Cath., vol. iv. A small ti-act, entitled "The Pope's Nuncio," printed in 1643, and said to be founded on the in- foi-mation of the Venetian ambassador, is, as I con- ceive, derived in some direct or indirect manner from these memoirs. It is republished in the Som- ers Tracts, vol. iv. Mr. Butler has published, for the first time, a long and important extract from Panzani's own re- port to the pope concerning the state of the Cath- olic religion in England. — Mem. of Catholics, iv., 55. He reckons them at 150,000; many of them, how- ever, continuing so outwardly to live as not to be known for such, among whom are many of the first nobility. From them the neighboring Catholics have no means of hearing mass or going to the sacra- ments. Others, more bold, give opportunity, more or less, to their poorer neighbors to practice their duty. Besides these, there are others, who, apprehensive of losing their property or places, live in appear- ance as Protestants, take the oaths of supremacy and allegiance, frequent the churches, and speak occasionally against Catholics ; yet in their hearts are such, and sometimes keep priests in their houses, that they may not be without help, if nec- essary. Among them he includes some of the first nobility, secular and ecclesiastical, and many of every rank. While he was in London, almost all the nobility who died, though reputed Protestants, died Catholics. The bishops are Protestants, ex- cept four, Durham, Salisbury, Rochester, and Ox- ford, who are Puritans. The latter are most nu- merous among the people, and are more hated by moderate Protestants than are the Catholics. A great change is apparent in books and seiTuons compared with fonner times ; auricular confession praised, images well spoken of, and altars. The pope is owned as patriarch of the West ; and wishes arc expressed for reunion. The queen has a jjublic chapel besides her private one, where service is celebrated with much pomp ; also the ambassadors ; and there are others in London. The laws against recusants are much relaxed ; though sometimes the king, being in want of mon- ey, takes one third of their incomes by way of com- [chap, vin. During the residence of Panzani in Eng- land, an extraordinary negotiation was com- menced for the reconciliation of the Church of England with that of Rome ; and as this fact, though unquestionable, is very little known, I may not be thought to digi'ess in taking particular notice of it. Windebank and Lord Cottington were the first movers in that business, both calling themselves to Panzani Catholics, as in fact they were, but claiming all those concessions from the See of Rome which had been sometimes held out in the preceding century. Bishop Montagu soon made himself a intrigue of partj-, and had several interviews wiUi°"' with Panzani. He professed the Panzani. strongest desire for a union, and added, that he was satisfied both the archbishops, the Bishop of London, and several othei-s of that order, besides many of the inferior clergy, were prepared to acknowledge the spiritual supremacy of the Holy See, there being no method of ending controversies but by recuiTing to some center of ecclesiastical unity. For himself, he knew no tenet of the Roman Chm-ch to which he would not subscribe, unless it were that of ti-ansub- stantiation, though he had some scruples as to communion in one kind. But a congress of moderate and learned men, chosen on each side, might reduce the disputed points into small compass, and confer upon them. This overture being communicated to Rome by its agent, was, of course, too tempting to be disregarded, though too am- biguous to be snatched at. The reunion position. The Catholics are yet molested by the pur- suivants, who enter their houses in search of priests or sacred vessels ; and though this evil was not much felt while he was in London, they might be set at work at any time. He determined, there- fore, to obtain, if possible, a general order from the king to restrain the pursuivants; and .the business was put into the hands of some counselors, but not settled at his departure. The oath of allegiance divided the ecclesiastics, the major part refusing to take it. After a good deal about the appoint- ment of a Catholic bishop in England, he mentions Father Davenport or Sancta Clara's book, entitled Deus, Natura, Gratia, with which the king, he says, had been pleased, and was therefore disap- pointed at finding it put in the Index Expurgato- rius at Rome. This book, which made much noise at the time, was an attempt to show the compati- bility of the Anglican doctrines with those of the Catholic Church ; the usual trick of popish intrigu- ers.— See an abstract of it in StiUingfleet's Works, vol. v., p. 176. CONSTITUTIONAL HISTORY OF ENGLAND Cha. I.— 1629-40.] FROM HENRY V: 11. TO GEORGE II. 277 of England to the Catholic Church, in itself a most important advantage, might, at that particular juncture, during the dubious struggle of the Protestant religion in Ger- many, and its still more precarious condition in France, very probably reduce its adhe- rents throughout Europe to a proscribed and persecuted sect. Pauzani Avas there- fore instructed to flatter Montagu's vanity, to manifest a great desire for reconciliation, but not to favor any discussion of controvert- ed points, which had always proved fruit- less, and which could not be admitted till the supremo authority of the Holy See was recognized. As to all usages founded on positive law, which might be disagi-eeable to the English nation, they should receive as much mitigation as the case would bear. This, of course, alluded to the three gi-eat l)oints of discipline, or ecclesiastical institu- tion— the celibacy of the clergy, the exclu- sion of the laity from the eucharistical cup, and the Latin liturgy. In the course of the bishop's subsequent interviews, he again mentioned his willing- ness to acknowledge the pope's supremacy, and assured Panzani that the ai'chbishop was entirely of his mind, but with a great mixture of fear and caution.* Three bish- ops only, Morton, Hall, and Davenant, were obstinately bent against the Church of Rome ; the rest might be counted moder- ate.f The agent, however, took care to obtain from another quarter a more partic- ular account of each bishop's disposition, and transtnitted to Rome a report, which * If we may believe Heylin, the qneen prevail- ed on Land to use his influence with the king that Panzani might come to London, promising to be bis friend. — Life of Laud, 286. t P. 246. It may seem extraordinary that he did not mention Williams ; but I presume he took that political bishop's zeal to be insincere. Will- iams liad been, while in power, a great favorer of the toleration of papists. If, indeed, a story told of him, on Endymion Porter's authority, in a late work, be true, he was at that time sufficiently in- clined to have accepted a cardinal's hat, and made interest for it. — Blencowe's Sidney Papers, p. 262. One bishop, Goodman of Gloucester, was undoubt- edly a Roman Catholic, and died in that commun- ion. He refused for a long time to subscribe the canons of 1640, on account of one that contained a renunciation of popery, but yielded at length for fear of suspension, and charged Montagu with hav- ing inatigated his refusal, though he subscribed himseK ^Nalson, i., 371. Rushw. Abr., iii., 168. CoU'.r '"<3 Land's defense on his trial. does not appear. Montngn displayed a most unguarded Avarmth in all this treaty ; notwithstanding which, Panzani suspected him of still entertaining some notions in- compatible with the Catholic docti'ine. He behaved with much greater discretion than the bishop; justly, I suppose, distrusting the influence of a man who showed so little capacity for a business of the utmost deli- cacy. It appears almost certain that Mon- tagu made too free with the name of the archbishop, and probably of many others ; and it is well worthy of remark, that the popish party did not entertain any sanguine hopes of the king's conversion. They ex- pected, doubtless, that, by gaining over the hierarchy, they should induce him to fol- low; but he had evidently given no reason to imagine that he would precede. A few casual words, not, perhaps, exactly report- ed, might sometimes elate their hopes, but can not excite in us, who are better able to judge than his cotemporaries, any reason- able suspicion of his constancy. Yet it is not impossible that he might at one time conceive a union to be more practicable than it really was.* t Henrietta Maria, in her communication to Madame de Motteville, has the following passage, which is not undesei-ving of notice, though she may have been deceived: "Le Roi Jacques . . composa deux li\Tes pour la defense de la fausse religion d'Angleterre, et fit reponse a ceux que le Cardinal du Perron ecrivit centre lui. En defend- ant le mensonge, il concut de I'amour pour la ver- ite, et souhaita de se retirer de I'erreur. Ce fut en voulant accorder les deux religions, la notre et la sienne ; mais il mourut avant que d'executer ce louable dessein. Le Roi Charles Stuard, son fils, quand il vint a la couronne, se trouva presque dans les memes sentimens. II avoit auprds de lui I'Arch- eveque de Cantorberi, qui, dans son creur ctant ti-es-bou Catholique, inspira au roi son maitre un grand dcsir de rctablir la liturgie, croyant que s'il pouvoit arriver a ce point, il y auroit si peu de difi'erence de la fbi ortliodoxe a la leur, qu'il seroit aise peu a peu d'y conduire le roi. Pour travail- ler a ce grand ouvrage, que ne paroissoit au roi d'AngleteiTe que le retablissement parfait de la liturgie, et qui est le seul dessein qui ait etc dans le coEur de ce prince, I'Arcbeveque de Cantorberi lui conseiUa de commencer par I'Ecosse, comma plus eloignee du coeur du royaumc ; lui disant, que leur remuement seroit moins a craindre. Le roi, avant que de partir, voulant envoyer cette liturgie en I'Ecosse, I'appoita uu soir dans la cbambre de la reine, et la pria de lire ce livre, lui disant, qu'il seroit bien aise qu'elle le vit, afin qn'elle sut com- bien ils approchoieut de creance. " — Mem. de Motte- ville, i., 242. A well-informed writer, however. 27S CONSTITUTIONAL HISTORY OF ENGLAND [Chap. VIIL The court of Rome, however, omitted no token of civility or good will to conciliate cm- king's favor. Besides expressions of paternal kindness which Urban lavished on him, Cardinal Barberini gi-atified his well- known taste by a present of pictures. Charles showed a due sense of these court- esies. The prosecutions of recusants were absolutely stopped, by cashiering the pui'- suivants who had been employed in the odious office of detecting them. It was ar- ranged that reciprocal diplomatic relations should be established, and, consequently, that an English agent should constantly re- side at the court of Rome, by the nominal appointment of the queen, but empowered to conduct the various negotiations in hand. Through the first person who held this sta- tion, a gentleman of the name of Hamilton, the king made an overture on a matter very near to his heart, the restitution of the Pa- latinate. I have no doubt that the whole of his imprudent tampering with Rome had been considerably influenced by this chi- merical hope ; but it was apparent to every man of less unsound judgment than Charles, that, except the young elector would re- nounce the Protestant faith, he could ex- pect nothing from the intercession of the pope. After the first preliminaries, which she could not refuse to enter upon, the court of Rome displayed no eagerness for a treaty which it found, on more exact infonnation, to be embaiTassed with greater difficulties than its new allies had confessed.* Wheth- er this subject continued to be discussed during the mission of Con, who succeeded Panzani, is hard to determine, because the latter's memoirs, our unquestionable author- ity for what has been above related, cease to afford us light ; but as Con was a very says Charles was a Protestant, and never liked the Catholic religion.— P. Orleans, Revolat. d'Anglet., iii., 35. He says the same of Laud, but refers to Vittorio Siri for an opposite story. * Cardinal Barberini wrote word to Panzani, that the proposal of Windebank, that the Chiirch of Rome should sacrifice communion in one kind, the celibacy of the clergy, &c., would never please ; that the English ought to look back on the breach they had made, and their motives for it, and that the whole world was against them on the first-men- tioned points, p. 173. This is exactly what any one might predict tr\\o knew the long discussions on the subject with Austria and France at the time of the Council of Trent. active intriguer for his court, it is by no means unlikely that he proceeded in the same kind of parley with Montagu and Windebank; yet whatever might pass be- tween them was intended rather with a view to the general interests of the Roman Church, than to promote a reconciliation with that of England, as a separate con- tracting paity. The former has displayed so systematic a policy to make no conces- sion to the Refoinners, either in matters of belief, wherein, since the Council of Trent, she could in fact do nothing, or even, as far as possible, in points of disciphne, as to which she judged, perhaps rightly, that her authority would be impaired by the prece- dent of concession without any proportion- ate advantage : so unvaiying in all ca.ses has been her detennination to yield nothing ex- cept through absolute force, and to elude force itself by eveiy subtlety, that it is as- tonishing how honest men on the opposite side (men, that is, who seriously intended to preserve any portion of their avowed ten- ets) could ever contemplate the possibility of reconciliation. Upon the present occa- sion, she manifested some alarm at the boasted approximation of the Anglicans. The attraction of bodies is reciprocal ; and the English Catholics might, with so much temporal interest in the scale, be impelled more rapidly toward the E stablished Church than that church toward them. "Advise the clergy," say the instructions to the nun- cio in 16.39, "to desist from thatfoolish, nay, rather illiterate and childish, custom of dis- tinction in the Protestant and Puritan doc- trine ; and especially this eiTor is so much the greater, when they undertake to prove that Protestantism is a degree nearer to the Catholic faith than the other ; for since both of them be without the verge of the Church, it is needless hypocrisy to speak of it, yea, it begets more malice than it is w-orth."* This exceeding boldness of the Catholic party, and their success in conversions, which were, in fact, less remarkable for their number than for the condition of the persons, roused the primate himself to some apprehension. He prefeiTed a formal com- plaint to the king in council against the re- sort of papists to the queen's chapel, and * "Begets more malice" is obscure — perhaps ic means "irritates the Puritans more.'" — Clar. Pa- pers, ii., 44. Cha. I.— 1629-40.] FROM HEXRY VII. TO GEORGE II. 279 the insolence of some active zealots about the court.* Heurietta, who had courted his friendship, and probably relied on his connivance, if not support, seems never to have forgiven this unexpected attack. Laud gave another testimony of his unabated hos- tility to popeiy by repubhshing with addi- tions his celebrated conference with the Jesuit Fisher, a woi-k reckoned the gi'eat monument of his learning and conti-oversial acumen. This conference had taken place many years before, at the desire and in the presence of the Countess of Buckingham, the duke's mother. Those who are con- versant with literary and ecclesiastical anec- dote must be aware that nothing was more usual in the seventeenth century thao such single combats under the eye of some fair lady, whose religious faith was to depend upon the victoiy. The wily and polished Jesuits had gi-eat advantages in these duels, which almost alwaj's, I believe, ended in their favor. After fatiguing their gentle ar- bitress for a time with the tedious fencing of text and citation, till she felt her own inabil- ity to award the palm, they came, with her prejudices already engaged, to the necessity of an infallible judge ; and as their adversa- ries of the English Church had generally left themselves vulnerable on thi.s side, there was little difficulty in obtaining success. * Hevlin, p. 338. Land's Diarj', Oct., 1637. Strafford Letters, i., 426. Garrard, a dependent friend whom Strafford retained, as was usual with great men, to communicate the news of the court, frequently descants on the excessive boldness of the papists. "Laud," he says, vol. ii., p. 74, " does all he can to heat down the general fear conceived of bringing on popery." So in p. 165, and many other places. It is manifest, by a letter of Laud to Strafford in 1638, that he was not satisfied with the systemat- ic connivance at recusancy. — Id., 171. The expla- nation of the archbishop's conduct with respect to tlie Roman Catholics seems tofce, that, with a view of gaining them over to his own half-way Protes- tantism, ond also of ingratiating himself with the queen, he had for a time gone along with the tide, till he found there was a real danger of being car- ried further than he intended. This accounts for the well-known story told by Evelyn, that the Jes- uits at Rome spoke of liim as their bitterest ene- my. He is reported to have said that they and the Puritans were the chief obstacles to a reunion of the churches. There is an obscure storj- of a plot carried on by the pope's legate Con and the English Jesuits against Laud, and detected in 1G40 by one Andrew Habemfield, which some have treated as a mere fiction. — Rushworth, iii., 232. I Like Hector in the spoils of Patroclus, our clergj- had assumed to themselves the ce- I lestial armor of authority, but found that, however it might intimidate the multitude, I it fitted them too ill to repel the spear that 1 had been ^vl■ou^ht in the same furnace. A I writer of tliis school in the age of Charles the First, and incomparably superior to any of the churchmen belonging to it in the brightness and originality of his genius. Sir Thomas Browne, whose varied talents wanted nothing but the controlling suprem- acy of good sense to place him in the high- est rank of our literature, will furnish a bet- ter instance of the prevailing bias than mere- j ly theological writings. He united a most j acute and skeptical understanding with strong devotional sensibility-, the tempeiu- ment so conspicuous in Pascal and Johnson, and which has a peculiar tendency to seek the repose of implicit faith. " Where the Scripture is silent," s.iys Browne in his Religio Medici, "the Church is my text; where it speaks, 'tis but my comment." That Jesuit must have been a disgrace to his order who would have asked more than such a concession to secure a proselyte — the right of interpreting whatever was writ- ten, and of supplying whatever was not. At this time, however, appeared one man in the field of religious debate, who chiiiiug- sti'uck out from that insidious track, worth, of which his own experience had shown him the perils. ChillingAvoith, on whom nature had bestowed something like the same constitutional temperament as that to which I have just adverted, except that the reasoning power having a greater masterj", his religious sensibility i-ather gave earn- estness to his love of truth than tenacity to his prejudices, had been induced, like so many others, to pass over to the Roman Church. The act of transition, it may be obseiTed, from a system of tenets wherein men had been educated, was in itself a vig- orous exercise of free speculation, and might be termed the suicide of private judgment. But in Chillingworth's restless mind there was an inextinguishable skepticism that no opiates could subdue ; yet a skepticism of that species which belongs to a vigorous, not that which denotes a feeble understanding. Dissatisfied with his new opinions, of which he had never been really convinced, he panted to breathe the freer air of Protes- 280 CONSTITUTIOXAL HISTORY OF ENQLAND [Chap. VIIL tantism, and after a long and anxious inves- tigation, returned to the English Church. He well redeemed any censure that might have been thrown on him, by his gi'eat work in answer to the Jesuit Knott, entitled The Religion of Protestants a Safe Way to Sal- vation. In the course of his reflections he had perceived the insecurity of resting the Refonnation on any but its original basis, the independency of private opinion. This, too, he asserted with a fearlessness and consistency hitherto little known, even with- in the Protestant pale ; combining it with another principle, which the zeal of the early Reformers had rendered them unable to perceive, and for want of which the ad- versaiy had perpetually discomfited them, namely, that the eiTors of conscientious men do not forfeit the favor of God. This endeavor to mitigate the dread of forming mistaken judgments in religion runs through the whole work of Chillingworth, and marks him as the founder, in this country, of what has been called the latitudinarian school of theology. In this view, which has practi- cally been the most important one of the controversy, it may pass for an anticipated I reply to the most brilliant performance on the opposite side, the History of the Varia- tions of Protestant Churches ; and those who, from a delight in the display of human intellect, or from more serious motives of inquiry, are led to these two master-pieces, will have seen, perhaps, the utmost strength that either paity, in the great schism of Christendom, has been able to put forth. This celebrated work, which gained its author the epithet of immortal, is now, I suspect, little studied even by the clergy. It is, no doubt, somewhat tedious, when read continuously, from the frequent recur- rence of the same strain of reasoning, and from his method of following, sentence by sentence, the steps of his opponent ; a method which, while it presents an imme- diate advantage to controversial -v^Titers, as it heightens their reputation at the expense of their adversary, is apt to render them very tiresome to posterity. But the close- ness and precision of his logic, which this mode of incessant grappling with his antag- onist served to displaj-, are so admirable — perhaps, indeed, hardly rivaled in any book beyond the limits of strict science — that the study of Chillingworth might tend to chas- tise the verbose and indefinite declamation so characteristic of the present day. His style, though by no means elegant or imag- inative, has much of a nervous energy that rises into eloquence. He is chiefly, how- ever, valuable for a true liberality and tol- erance ; far removed from indifference, as may well be thought of one whose life was consumed in searching for truth, but dia- metrically adverse to those pretensions which seem of late years to have been re- gaining ground among the Anglican divines. The latitudinarian principles of Chilling- worth appear to have been confirmed by his intercourse with a man, of whose capacity his cotemporaries enter- tained so high an admiration, that he ac- quired the distinctive appellation of the Ever-memorable .Tohn Hales. This testi- mony of so many enlightened men is not to be disregarded, even if we should be of opinion that the writings of Hales, though abounding with marks of an unshackled mind, do not quite come up to the prromise of his name. He had, as well as Chilling- worth, bon-owed fi-om Leyden, perhaps a j little from Racow, a tone of thinking upon some doctrinal points as yet nearly un- known, and therefore highly obnoxious in England. More hardy than his friend, he wrote a short treatise on schism, which tended, in pretty blunt and unlimited lan- guage, to overthrow the scheme of authori- tative decisions in any church, pointing at the imposition of unnecessaiy ceremonies and articles of faith as at once the cause and the apology of sepai'ation. This hav- ing been circulated in manuscript, came to the knowledge of Laud, who sent for Hales to Lambeth, and questioned him as to his opinions on that matter. Hales, though willing to promise that he would not pub- lish the tract, receded not a jot from his free notions of ecclesiastical power, which he again advisedly maintained in a letter to the archbishop, now printed among his works. The result was equally honorable to both parties ; Laud bestowng a canoniy of Windsor on Hales, which, after so bold an avowal of his opinion, he might accept without the slightest reproach. A behav- ior so liberal forms a singular contrast to the rest of this prelate's history : it is a proof, no doubt, that he knew how to set such a value on great abilities and learning Cha. I.— 1G29-J0.] FROM HENRY VII. TO GEORGE II. 281 as to forgive much that wounded his pride. But besides that Hales had not made pub- lic this treatise on schism, for which I think he could not have escaped the High Commission Court, he was known by Laud to stand far aloof from the Calviuistic sec- taries, having long since embraced in their full extent the principles of Episcopius. and to mix no alloy of political faction with the philosophical hardiness of his speculations.* These two remarkable ornaments of the English Church, who dwelt apart like stars, to use the fine expression of a living poet, from the vulgar bigots of both her factions, were accustomed to meet, in the society of some other eminent persons, at the house of Loixi Falkland, near Burford. One of those, who, then in a ripe and learned youth, became aftenvard so conspicuous a name in our aunals and our literature, Mr. Hyde, the chosen bosom-friend of his host, has dwelt with affectionate remembrance on the conversations of that mansion. His mai-velous talent of delineating character, a talent, I think, unrivaled by any writer (since, combining the bold outline of the ancient historians with the analytical mi- nuteness of De Retz and St. Simon, it pro- duces a higher effect than either), is never more beautifully displayed than in that part of the memoirs of his life where Falkland, Hales, Chilling^vorth, and the rest of his early friends pass over the scene. For almost thirty ensuing years, Hyde Character himself becomes the companion dl^!*writ- of historical reading. Seven ings. folio volumes contain his Histoiy of the Rebellion, his Life, and the Letters, of which a large portion are his own. We contract an intimacy with an author who has poured out to us so much of his heart. Though Lord Clarendon's chief work seems to me not quite accui'ately styled a histoiy, belonging rather to the class of memoirs.f * Heylin, in his Life of Laud, p. 340, tells this storj-, as if Hales had recanted his opinions, and owned Laud's superiority over him in argument. This is ludicrous, considering the relative abilities of the two men ; and Hales's letter to the arch- bishop, which is full as bold as Ids treatise on schism, proves that Heylin's nan-ative is one of his many willful falsehoods ; for, by making himself a witness to the pretended circumstances, he has precluded the excuse of error. t It appears by the late edition at Oxford (1826) that Lord Clarendon twice altered his intention as to the nature of his work, liaving originally design- yet the very reasons of this distinction, the long circumstantial narrative of events wherein he was engaged, and the slight no- tice of those which he only learned from others, render it more interesting, if not more authentic. Conformably to human feelings. ed to write the histoiy of his time, which he changed to memorials of his own life, and again returned to his first plan. The consequence has been, that there are two manuscripts of the Histo- ry and of the Life, which in a great degree are transcripts one from the other, or contain the same general fact with variations. That part of the Life, previous to 1660, which is not inserted in the History of the Rebellion, is by no means extensive. The genume text of the Histoiy has only been published in 1826. A storj-. as is well known, ob- tained circulation within thirty years after its first appearance, that the manuscript had been materi- allj' altered or interpolated. This was positively denied, and supposed to be wholly disproved. It turns out, however, that, like many other anec- dotes, it had a considerable basis of truth, though with various en'oneous additions, and probably willful misrepresentations. It is nevertheless sur- prising that the worthy editor of the original man- uscript should say "that the genuineness of the work has rashly, and for party purposes, been call- ed in question," when no one, I believe, has ever disputed its genuineness ; and the anecdote to which I have alluded, and to which, no doubt, he alludes, has been by his own industry (and many thanks we owe him for it) perfectly confinned in substance ; for though he endeavors, not quite nec- essarily, to excuse or justify the original editors (who seem to have been Sprat and Aldrich, with the sanction, probably, of Lords Clarendon and Rochester, the historian's sous) for what they did, and even singularly asserts that " the present col- lation satisfactorily proves that they have in no one instance added, suppressed, or altered any his- torical fact" (Advert, to edit. 1826, p. v.), yet it is certain that, besides the perpetual impertinence of mending the style, there are several hundred variations which affect the sense, introduced from one motive or another, and directly contrary to the laws of literary integrity. The long passages in- serted in the appendixes to several volumes of this edition contain surely historical facts that had been suppressed ; and, even with respect to subordinate alterations, made for the purpose of sofleniug ti'aits of the author's angry temper, or correcting his mis- takes, the general effect of taking such liberties with a work is to give it an undue credit in the eyes of the public, and to induce men to believe matters upon the writer's testimouj-, which they would not have done so readily if his errors had been fairly laid before them. Clarendon, indeed, is so strangely loose in expression as well as in- correct in statement, that it would have heen im- possible to remove his faults of this kind without writing again half the histoiy; but it is certain that great trouble was veiy unduly taken to light en their impression upon the world. 2S2 CONSTITUTIONAL HISTORY OF ENGLAND [Chap. VIIL though against the rules of historical com- position, it bears the continual impress of an intense concern about what he relates. This depth of personal interest, united fre- quently with an eloquence of the heart and imagination that struggles through an involv- ed, incorrect, and artificial diction, makes it, one would imagine, hardly possible for those most alien from his sentiments to read his writings without some portion of sympathy. But they are, on this account, not a little dangerous to the soundness of our historical conclusions; the prejudices of Clarendon, and his negligence as to truth, being full as striking as his excellen- ces, and leading him not only into many er- roneous judgments, but into frequent in- consistencies. These inconsistencies are nowhere so Animaiiver- apparent as in the first or inti'o- sioiis on ductory book of his history, which Cliirendnn's ,. . , . account of proiesses to give a general view this period, tijp gfj^fg of affairs before the meeting of the Long Parliament. It is certainly the most defective part of his work. A strange mixture of honesty and disingenuousness pervades all he has writ- ten of the early years of the king's reign ; retracting, at least in spirit, in almost every page what has been said in the last, from a constant fear that he may have admitted so much against the government as to make his readers impute too little blame to those who opposed it. Thus, after freely cen- suring the exactions of the crown, whether on the score of obsolete prerogative or without any just pretext at all, especially that of ship-money, and confessing that " those foundations of right, by which men valued their security, were never, to the apprehension and uudei-standing of wise men, in more danger of being destroyed," he turns to dwell on the prosperous state of the kingdom during this period, " enjoy- ing the greatest calm and the fullest meas- ure of felicity that any people in any age for so long time together have been blessed with," till he works himself up to a sti'ange paradox, that " many wise men thought it a time wherein those two adjuncts, which NeiTa was deified for uniting, Iinperium et Libertas, were as well reconciled as is pos- sible." Such wisdom was not, it seems, the at- tribute of the nation. " These blessings," he says, " could but enable, not compel, us to be happy ; we wanted that sense, ac- knowledgment, and value of our own hap- piness which all but we had, and took pains to make, when we could not find, ourselves miserable. There was, in truth, a strange absence of understanding in most, and a stiange pei-verseness of understanding in the rest ; the court full of excess, idleness, and luxury ; the country full of pride, mutiny, and discontent; every man more troubled and perplexed at that they called the violation of the law, than delighted or pleased with the obser^■ation of all the rest of the Charter ; never imputing the in- crease of their receipts, revenue, and plen- ty to the wisdom, virtue, and merit of the crown, but objecting every small imposition to the exorbitancy and tyranny of the gov- ernment." This sti-ange passage is as inconsistent with other parts of the same chapter, and with Hyde's own conduct at the beginning of the Parliament, as it is with all reasona- ble notions of government ;* for if kings and * May thus answers, by a sort of proplietic an- ticipation, this passage of Clarendon : " Another sort of men," he says, "and especially lords and g-entlemen, by whom the pressures of the g-ovem- ment were not much felt, who enjoyed their own plentiful fortunes, with little or insensible detriment, looking no further than their present safety and prosperity, and the yet undisturbed peace of the nation, while other kingdoms were embroiled in calamities, and Germany sadly wasted by a sharp war, did nothing but applaud the happiness of England, and called those ungrateful factious spir- its who complained of the breach of laws and lib- erties I that the kingdom abounded with wealth, plent)', and all kinds of elegances more than ever; that it was for the honor of a people that the mon- arch should live splendidly, and not be curbed at all in his prerogative, which would bring him into greater esteem with other princes, and more ena- ble him to prevail in treaties ; that what they suf- fered by monopolies was insensible, and not giiev- ous, if compared with other states ; that the Duke of Tuscany sat heavier upon his people in that very kind ; that the French king had made him- self an absolute lord, and quite depressed the pow- er of Parliaments, which had been there as great as in any kingdom, and yet that France flourished, and the gentiy lived well ; that the Austrian prin- ces, especially in Spain, laid heavy burdens upon their subjects. Thus did many of the Enghsh gentry, by way of comparison, in ordinarj' dis- course, plead for their own servitude. " The courtiers would begin to dispute against Parliaments, in their oidiuaiy discourse, that they were cruel to those whom the king favored, and Cha. I.— 1629-40.] FROM HENRY VII. TO GEORGE II. 263 ministers may plead in excuse for violating one law, that they have not transgressed the rest (though it would be difficult to name any violation of law that Charles had not committed) — if this were enough to reconcile their subjects, and to make dissat- isfaction pass for a want or perversion of understanding, they must be in a very dif- ferent pi'edicament from all others who live within the pale of civil society, whose obli- gation to obey its discipline is held to be en- tire and universal. By this great writer's own admissions, the decision in the case of ship-money had shaken every man's secu- rity for the enjoyment of his private inherit- ance. Though as yet not weighty enough to be actually very oppressive, it might, and, according to the experience of Eu- rope, undoubtedly would, become such by length of time and peaceable submission. We may acknowledge without hesitation that the kingdom had gi-own during this pe- riod into remarkable prosperity and afflu- ence. The rents of land wei'e very con- siderably increased, and large tracts redu- ced into cultivation. The manufacturing towns, the sea-ports, became more popu- lous and flomishing. The metropolis in- creased in size with a rapidity that repeated proclamations against new buildings could not resti-ain. The country houses of the superior gentiy throughout England were built on a scale which their descendants, even in days of more redundant affluence, have seldom ventured to emulate. The kingdom was indebted for this prosperity to the spirit and industry of the people ; to the laws which secure the commons from oppression, and which, as between man and man, were still fairly administered ; to the too injurious to Ins prerogative ; that the late Par- liament stood upon too high tenns with the king, and that they hoped the king should never need any more Parliaments. Some of the gi'eatest statesmen and privy-counselors would ordinarily laugh at the ancient language of England, when the word liberty of the subject was named. But these gentlemen, who seemed so forward in taking up their own yoke, were but a small part of the na- tion (though a number considerable enough to make a reformation hard) compared with those gentle- men who were sensible of their birthrights and the true interests of the kingdom ; on which side the common people in the generality, and the country freeholders stood, who would rationally ai'gue of their own rights, and those oppressions that were laid upon them."— Hist, of Pari., p. 13 (edit. 1812). opening of fresh channels of trade in the Eastern and Western worlds (rivulets, in- deed, as tlicy seem to us, who float in the full tide of modern commerce, yet at that time no slight contributions to the stream of public wealth) ; but, above all, to the long tranquillity of the kingdom, ignorant of the sufferings of domestic, and seldom much affected by the privations of foieign war. It was the natural course of things, that wealth should be progressive in such a land. Extreme tyranny, such as that of Spain ia the Netherlands, might, no doubt, have turned back the current. A less violent, but long-continued despotism, such as has existed in several European monarchies, would, by the corruption and incapacity which absolute governments engender, have retarded its advance. The administration of Charles was certainly not of the former description; yet it would have been an ex- cess of loyal stupidity in the nation to have attributed their riches to the wisdom or virtue of the court, which had injured the freedom of ti'ade by monopolies and arbitra- ly proclamations, and driven away industri- ous manufacturers by persecution. If we were to draw our knowledge from no other book than Lord Clarendon's His- tory, it would still be impossible to avoid the inference that misconduct on the part of the crown, and more especially of the Churcli, was the chief, if not the sole, cause of these prevailing discontents. At the time when Laud unhappily became Archbishop of Can- terbuiy, " the general temper and humor of the kingdom," he tells us, "was little in- cUned to the papist, and less to the Puritan. There were some late taxes and imposi- tions introduced, which rather angei'ed than gi-ieved the people, who were more than repaired by the quiet peace and prosperity they enjoyed ; and the murmurs and dis- content that was, appeared to be against the excess of power exercised by the crown, and supported by the judges in Westmin- ster Hall. The Church was not repined at, nor the least inclination to alter the gov- ernment and discipline thereof, or to change the doctrine ; nor was there, at that time, any considerable number of persons, of any valuable condition throughout the kingdom, who did wish either ; and the cause of so prodigious a change in so few years after was too visible from the effects." This 284 COXSTITUTIOXAL HISTORY OF EXGLAXD [Chap. Vllt cause, he is compelled to admit, in a pass- age too diffuse to be extracted, was the pas- sionate and imprudent behavior of the pri- mate. Can there be a sti'onger proof of the personal prepossessions which forever dis- tort the judgment of this author, than that he should blame the remissness of Abbot, who left things in so happy a condition, and assert that Laud executed tlie trust of solely managing ecclesiastical affairs " infinitely to the sei-vice and benefit" of that church which he brought to destiiiction ? Were it altogether true, what is, doubtless, much exaggerated, that in IG.3.3 very little discon- tent at the measures of the court had begun to prevail, it would be utterly inconsistent with experience and obsei"vation of mankind to ascribe the almost universal murmurs of 1639 to any other cause than bad govern- ment. But Hyde, attached to Laud and devoted to the king, shrunk from the con- clusion that his own language would afford ; and his piety made him seek in some mys- terious influences of Heaven, and in a judi- cial infatuation of the people, for the causes of those ti'oubles which the fixed and uni- form dispensations of Providence were suf- ficient to explain.* ' It is curious to contrast the inconsistent and feeble apologies for the prerogative we read in Clarendon's History, with his speech before the Lords, on impeaching the judges for their decision in the case of sliip-money. In this he speaks veiy strongly as to the illegality of the proceedings of the judges in Rolls and Vassal's cases, though in his Histoi-y he endeavors to insinuate that the king had a right to tonnage and poundage; he inveighs also against the decision in Bates's case, which he vindicates in his Histoiy. — Somers Tracts, iv., 302. Indeed, the whole speech is irreconcilable with the picture he aftei-ward drew of the prosperity of England, and of the unreasonableness of discontent. The fact is, that when he sat down in Jersey to begin his Histoiy, irritated, disappointed, afflicted at all that had passed in the last five years, he could not bring his mind back to the state in which it had been at the meeting of the Long Parliament, and believed himself to have partaken far less in the sense of abuses and desire of redress than he had really done. There may, however, be reason to suspect that he had, in some respects, gone fur- ther in the first draught of his Histoiy than appears at present ; that is, I conceive, that he erased him- self some passages or phrases unfavorable to the court. Let the reader judge from the following sentence in a letter to Nicholas relating to his work, dated Feb. 12, 1647 : " I will offer no excuse for the entertaining of Con, who came after Panza- ni, and was succeeded by Rosetti, which was a business of so much folly, or worse, that I have It is difficult to pronounce how much longer the nation's signal forbear- Scots tronb- ance would have held out, if the J^eU""? ihT Scots had not precipitated them- goverument. selves into rebellion. There was still a confident hope that Parliament must soon or late be assembled ; and it seemed equally impolitic and unconstitutional to seek re- dress by any violent means. The patriots, too, had just cause to lament the ambition of some whom the couit's favor subdued, and the levity of many more whom its van- ities allured. But the unexpected success of the tumultuous rising at Edinburgh against the service-book revealed the impo- tence of the English government. Desti- tute of money, and neither daring to ask it from a Parliament nor to extort it by any fresh demand from the people, they hesita- ted whether to employ force or to submit to the insurgents. In the Exchequer, as Lord Northumberland wrote to Strafford, there was but the sum of c£200 ; with all the means that could be devised, not above 6£110,000 could be raised; the magazines were all unfurnished, and the people were so discontented by reason of the multitude of projects daily imposed upon them, that he saw reason to fear a great part of them would be readier to join with the Scots than to di'aw their swords in the king's service.* "The discontents at home," he observes some months afterward, " do mth- er increase than lessen, there being no course taken to give any kind of satisfac- tion. The king's coffers were never emp- tier than at this time ; and to us that have the honor to be near about him, no way is yet known how he will find means either to maintain or begin a war without the help of his people. "t Strafford himself dis- mentioned it in my prolegomena (of those distem- pers and exorbitances in government which pre- pared the people to submit to the furj' of this Par- liament) as an offense and scandal to religion, in the same degree that ship-money was to liberty and property.'" — State Papers, ii., 336. But when we turn to the passage in the History of the Re- bellion, p. 268, where this is mentioned, we do not find a single expression reflecting on the court, though the Catholics themselves are censured for imprudence. This may serve to account for sev- eral of Clarendon's inconsistencies, for nothing ren- ders an author so inconsistent with himself as cor- I'ections made in a different temper of mind from that which actuated him in the first composition. * Strafford Letters, ii., 186. t Id., 267. Cha. I.— 1629-40.] FBOM HENKY VII. TO GEOHGE 11. 285 suaded a war in such circumstances, thougli hardly knowing what other course to ad- vise.* He had now awaked from the dreams of infatuated arrogance, to stand appalled at the perils of his sovereign and his own. In the letters that passed be- tween him and Laud after the Scots troub- les had broken out, we read their hardly- concealed dismay, and glimpses of " the two-handed engine at the door." Yet pride forbade them to perceive or confess the real causes of this portentous state of af- fairs. They fondly laid the miscarriage of the business of Scotland on failure in the execution, and an '• over-gi'eat desire to do all quietly."t In this imminent necessity, the king had recourse to those who had least cause to repine at his administi-ation. The Catholic gently, at the powerful interference of their queen, made large contributions toward the campaign of 1G39. Many of them volun- teered their personal service. There was, indeed, a further project, so secret that it is not mentioned, I believe, till veiy lately, by any historical writer. This was to procure 10,000 regular troops from Flanders, in ex- change for so many recruits to be levied for Spain in England and Ireland. These troops were to be for six months in the king's pay. Colonel Gage, a Catholic, and the negotiator of this treaty, hints that the pope would probably contribute money, if he had hopes of seeing the penal laws re- pealed ; and observes, that with such an army the king might both subdue the Scots, and at the same time keep his Parliament in check, so as to make them come to his * Strafford Letters, ii., 191. t Strafford Letters, ii., 250. " It was ever clear in my judgment," says Strafford, "tliat the busi- ness of Scotland, so well laid, so pleasing to God and man, had it been effected, was miserably lost in the execution ; yet could never have so fatally miscarried if there had not been a failure likewise in this direction, occasioned either by over-great desires to do all quietly without noise, by the state of the business misrepresented, by opportunities and seasons slipped, or by some such like." Laud answers in the same sti-ain: "Indeed, my lord, the business of Scotland, I can be bold to say with- out vanitj', was well laid, and was a great service to the crown as well as to God himself. And that it should so fatally fail in the execution is a great blow as well to the power as honor of the king," &c. He lays the blame, in a great degree, on Lord Traquair.— P. 264. conditions.* The treaty, however, was never concluded. Spain was far more in- clined to revenge herself for the bad faith she imputed to Charles, than to lend him any assistance. Hence, when, in the next year, he offered to declare war against Hol- land, as soon as he should have subdued the Scots, for a loan of 1,200,000 crowns, the Spanish ambassador haughtily rejected the proposition.! The pacification, as it was termed, of Berwick in the summer of 1G39, has been represented by several historians as a meas- ure equally ruinous and unaccountable. That it was so far ruinous as it formed one link in the chain that dragged the king to destruction, is most evident; but it was both inevitable and easy of explanation. The treasury, whatever Clarendon and Hume may have said, was perfectly bankrupt.} The citizens of London, on being urged by the council for a loan, had used as much evasion as they dared. § The writs for ship-money were executed with greater difficulty ; several sheritiTs willingly acqui- esced in the excuses made by their coun- ties. || Sir Francis Seymour, brother to the Earl of Hertford, and a man, like his * Clarendon State Papers, ii., 19. t Id., 84, and Appendix, xxvi. :t; Hume says that Charles had an accumulated treasure of £200,000 at this time. I know not his authority for the particular sum ; but Clarendon pretends that " the revenue had been so well im- proved and so wisely managed, that there was money in the Exchequer proportionable for the un- dertaking any noble enterprise." This is, at the best, strangely hyperbolical ; but, in fact, there was an absolute want of every thing. Ship-mon- ey would have been a still more crying sin than it was, if the produce had gone beyond the demands of the state ; nor was this ever imputed to the court. This is one of Lord Clarendon's cajiital mistakes ; for it leads him to speak of the treaty of Berwick as a measure that might have been avoided, and even, in one place, to ascribe it to the king's excessive lenity and aversion to shedding blood, wherein a herd of supei"ficial writers have followed him. § Clarendon State Papers, ii., 46, 54. Lest it should seem extraordiuai-y that I sometimes con- tradict Lord Clarendon on the authority of his own collection of papei's, it may be necessary to ap- prise the reader that none of these, anterior to the civil war, had come in his possession tiU he had written this part of his History. II The grand jury of Northampton presented ship-money as a grievance. But the privy-council wrote to the sheriff that they would not admit his affected excuses ; and if he neglected to execute 286 C0X3TITUTI0NAL HISTORY OF ENGLAND [Chap. VIII. brother, of very moderate principles, abso- lutely refused to pay it, though warned by the council to beware how he disputed its legality.* Many of the Yorkshire gentry, headed by Sir Marmaduke Langdale, com- bined to refuse its payment. f It was im- possible to rely again on Catholic subscrip- tions, which the court of Rome, as I have mentioned above, instigated, perhaps, by that of Madrid, had already tried to re- strain. The Scots were enthusiastic, near- ly unanimous, and entire masters of their country. The EngUsh nobility, in general, detested the archbishop, to whose passion they ascribed the whole mischief and feared to see the king become despotic in Scotland. If the terms of Charles's ti-eaty with his revolted subjects were unsatisfactory and indefinite, enormous in concession, and yet affording a pretext for new enci'oachments, this is no more than the common lot of the weaker side. There was one possible, though not, un- der all the circumstances, veiy likely meth- od of obtaining the sinews of war — the con- vocation of Pai-liament. This many, at least, of the king's advisers appear to have long desired, could they but have vanquish- ed his obstinate reluctance. This is an im- portant obseiTation : Charles, and he per- haps alone, unless we reckon the queen, seems to have taken a resolution of super- seding absolutely and forever the legal Constitution of England. The judges, the peers. Lord Strafford, nay, if we believe his dying speech, the pi'imate himself, retained enough of respect for the ancient laws to desu'e that Parliaments should be summon- ed whenever they might be expected to second the views of the monarch. They felt that the new scheme of governing by proclamations and writs of ship-money could not, and ought not to be permanent in Eng- land. The king reasoned more royally, and, indeed, much better. He well per- ceived that it was vain to hope for another Parliament so constituted as those under the Tudors. He was ashamed (and that tlie writ, a quick and exemplary reparation would be required of him. — Rushw. Abr., iii., 93. * Rushw. Abr., iii., 47. The king; writes in the margin of Windebank's letter, informing him of Sej-mour's refusal : " You must needs make him an example, not only by disti-ess, but, if it be pos- sible, an information in some court, as Mr. Attorn- ey shall advise." t Strafford Letters, ii., 308. pernicious woman at his side would not fail to encourage the sentiment) that his broth- ers of France and Spain should have achiev- ed a work which the sovereign of England, though called an absolute king by his court- iers, had scarcely begun. All mention, therefore, of calling Parliament gi'ated on his ear. The declaration published at the dissolution of the last, that he should ac- count it presumption for any to prescribe a time to him for calling Parliaments, was meant to extend even to his own counsel- ors. He rated severely Lord-keeper Cov- entry for a suggestion of this kind.* He came with much reluctance into Went- worth's proposal of summoning one in Ire- land, though the superior control of the crown over Parliaments in that kingdom was pointed out to him. "The king," says Cottington, "at the end of 1638, will not hear of a Parliament; and he is told by a committee of learned men that there is no other way."f This repugnance to meet his people, and his inability to cairy on the war by any other methods, produced the ignominious pacification at Berwick. But as the Scots, grown bolder by success, had after this treaty almost thrown off all sub- jection, and the renewal of the war, or loss of the sovereignty over that kingdom, ap- peared necessary alternatives, overpowered by the concurrent advice of his council, and especially of Strafford, he issued writs for that which met in April, 1640.$ They told him that, making trial once more of the an- cient and ordinary way, he would leave his people without excuse if that should fail, and have wherewithal to justify himself to God and the world if he should be forced contrary to his inclinations to use exti'aordi- nary means, rather than through the peev- * " The king hath so rattled my lord-keeper, that he is now the most pliable man in England, and all thoughts of Parliaments are quite out of his pate."— Cottington to Sti-afford, 29th Oct., 1633, vol. i., p. 141. t Vol. ii., p. 946. "So by this time," says a powerful writer, " all thoughts of ever having a Parliament again was quite banished ; so many oppressions bad been set on foot, so many illegal actions done, that the only way to justify the mis- chiefs already done was to do that one greater; to take away the means wliich were ordained to redress them, the lawful government of England by Parliaments." — May, Hist, of Pariiament, p. 11. t Sidney Papers, ii., 623. Clarendon Papers, ii. 81. Cha. I.— 1629-40 ] FROM HENRY VII. TO GEORGE II. 287 ishness of some factious spirit to sufter his state and government to be lost.* It has been universally admitted that the _ ,. . Parhament which met on the 13th Parliament of April, of April, 1640, was as favorably ^^"^ disposed toward the king's service, and as httle influenced by their many wrongs, as any man of ordinary judgment could expect. f But though cautiously ab- staining from any intemperance, so much as to reprove a member for calling ship- money an abomination (no very outrageous expression), they sufficiently manifested a determination not to leave their grievances unredressed. Petitions against the mani- fold abuses in Chui'ch and State covered * Id. ibid. The attentive reader will not fail to observe that this is the identical language of the famoas advice imputed to Strafford, though used on another occasion. t May. Clarendon. The latter says, upon the dissolution of this Parliament : " It could never be hoped that so many sober and dispassionate men would ever meet again in that place, or fewer who brought ill purposes with them." This, like so many other passages in the noble historian, is cal- culated rather to mislead the reader. All the prin- cipal men who headed the popular party in the Long Parliament were members of this ; and the whole body, so far as their subsequent conduct shows, was not at all constituted of diflTerent ele- ments from the rest ; for I find, by comparison of the hst of this Parliament, in Nalson's Collections, with that of the Long Parliament, in the Parlia- mentary Histoi-y, that eighty, at most, who had not sat in the former, took the Covenant ; and that seventy-three, in the same circumstances, sat in the king's convention at Oxford. The difference, therefore, was not so much in the men as in the times J the bad administration and bad success of 1640, as well as the dissolution of the Short Parlia- ment, having greatly aggravated the public discon- tents. The court had never augured well of this Parlia- ment. "The elections," as Lord Northumberland writes to Lord Leicester at Paris (Sidney Papers, ii., 641), "that are generally made of knights and burgesses in this kingdom, give us cause to fear that the Parliament will not sit long ; for such as have dependence upon the court are in divers pla- ces refused,and the most refractory persons chosen." There are some strange things said by Claren- don of the ignorance of the Commons as to the val- ue of twelve subsidies, which Hume, who loves to depreciate the knowledge of former times, implic- itly copies. But they can not be true of that en- lightened body, whatever blunders one or two in- dividuals might commit. The rate at which every man's estate was assessed to a subsidy was per- fectly notorious ; and the burden of twelve subsi- dies to be paid in three years was more than the charge of ship-money they had been enduring. their table ; Pym, Rudyard, Waller, Lord Digby, and others more conspicuous after- ward, excited them by vigorous speeches ; they appointed a committee to confer with the Lords, according to some precedents of the last reign, on a long list of grievances, divided into ecclesiastical innovations, in- fringements of the propriety of goods, and breaches of the privilege of Parliament. They voted a request of the Peers, who, Clarendon says, were more entirely at the king's disposal, that they would begin with the business of supply, and not proceed to debate on grievances till aftei'ward, to be a high breach of privilege.* There is not the smallest reason to doubt that they would have insisted on redress in all those particulars with at least as much zeal as any former Parliament, and that the king, after obtaining his subsidies, would have put an end to their remonsti'ances, as he had done before. f In order to obtain the supply he demanded, namely, twelve subsi- dies to be paid in three years, which, though unusual, was certainly not beyond his exi- gences, he offei'ed to release his cliiim to ship-money in any manner they should point out. But this the Commons indig- nantly repelled. They deemed ship-mon- ey the great crime of his administration, and the judgment against Mr. Hampdea the infamy of those who pronounced it. Till that judgment should be annulled and those judges punished, the national liber- ties must be as precarious as ever. Even if they could hear of a compromise with so flagrant a breach of the Constitution, and of purclvising their undoubted rights, the doctrine asserted in Mr. Hampden's case by the crown lawyers, and adopted by some of the judges, rendered all stipulations nu- gatory. The right of taxation had been claimed as an absolute prerogative so inhe- rent in the crown, that no act of Parliament could take it away. All former statutes, down to the Petition of Right, had been prostrated at the foot of the throne ; by what new compact were the present Par- liament to give a sanctity more inviolable to their own ?t * Journals. Pari. Hist. Nalson. Clarendon. t The king had long before said that "Parlia- ments ai-e like cats: they grow curst with age." t See Mr. Waller's speech on Crawley's im- peachment. Nalson, ii., 358. 288 COXSTITUTIOXAL HISTOllY OF ENGLAND [Chap. VIII. It will be in the recollection of niy read- ers, that while the Commons were deliber- ating whether to promise any supply before the redress of grievances, and in what meas- ure, Sir Heniy Vane, the secretary, told them that the king would accept nothing less than the twelve subsidies he had re- quired ; in consequence of which, the Par- liament was dissolved next day. Claren- don, followed by several others, has imputed treachery in this to Vane, and told us that the king regretted so much what he had done, that he wished, had it been practica- ble, to recall the Parliament after its disso- lution. This is confirmed, as to Vane, by the queen herself, in that interesting nan-a- tive which she communicated to Madame de Motteville.* Were it not for such au- * Mem. de Motteville, i., 238-278. P. Orieans, Rev. de I'AngleteiTC, tome iii., says the same of Vane ; but his testimony may resolve itself into the former. It is to be observed, that ship-money, which the king offered to rehnquish, brought in £200,000 a year, and tliat the proposed twelve sub- sidies would liave amounted, at most, to £840,000, to be paid in three years. Is it surprising, that when the House displayed an intention not to grant the wliole of this, as appears by Clarendon's own story, the king and his advisei-s should have thought it better to break off altogether ? I see no reason for imputing treachei-y to Vane, even if he did not act merely by the king's direction. Clarendon Bays he and Herbert persuaded the king that the House " would pass such a vote against ship-mon- ey as would blast that revenue and other branch- es of the receipt, which others believed they would not have the confidence to have attempted, and veiy few that they would have had the credit to have compassed." — P. 24j. The word they is as inaccurate as is commonly the case with this writ- er's language. But does he mean that the House would not have passed a vote against ship-money ? They had already entered on the subject, and sent for records ; and he admits himself that they were resolute against grantmg subsidies as a considera- tion fur the abandonment of that grievance. Be- sides, Hyde himself not only inveighs most severe- ly in his History against ship-money, but was him- self one of the managers of the impeachment against six judges for their conduct in regard to it; and his speech before the House of Lords on that occasion is extant. — Rushw. Abr., ii., 477. But this is merely one instance of his eternal inconsist- ency. " It seems that the Lord-lieutenant of Ireland wished from the beginning that matters should thus be driven to the utmost ; for he wished the king to insist on a grant of money before any progress should be made in the removal of the abuses which bad grown up, a proceeding at variance with that of the preceding Parliament. No less did he vote for the violent measure of demandiug twelve sub- thorities, seemingly independent of each other, yet entirely tallying, I should have deemed it more probable that Vane, with whom the Solicitor-general Herbert had concurred, acted solely by the king's com- mand. Charles, who feared and hated all Parliaments, had not acquiesced in the scheme of calling the present till there was no other alternative ; an insufficient supply would have left him in a more difficult sit- uation than before as to the use of those extraordinary means, as they were called, which his disposition led him to prefer : the intention to assail parts of his adminis- tration more dear to him than ship-money, and especiaUy the ecclesiastical novelties, was apparent. Nor can we easily give him credit for this alleged regret at the step he had taken, when we read the declaration he put forth, charging the Commons with entering on exatnination of his government in an insolent and audacious manner, ti-adu- cing his administi-ation of justice, rendering odious his officers and ministers of state, and introducing a wfiy of bargaining and contracting with the king, as if nothing ought to be given him by them but what he should purchase, either by quitting somewhat of his royal prerogative, or by diminishing and lessening his revenue.* The unconstitutional practice of committing to prison some of the most prominent mem- bers, and seai'ching their houses for papers, was renewed : and having broken loose again from the restraints of law, the king's sanguine temper looked to such a triumph over the Scots in the coming campaign as no prudent man could think probable. This dissolution of Parliament in Maj-, 1640, appears to have been a very fatal cri- sis for the king's popularity. Those who, with the loj-altj' natural to Englishmen, had willingly ascribed his previous misgovern- ment to evil counsels, could not any longer avoid perceiving his mortal antipathy to any Parliament that should not be as subsei-vi- ent as the Cortes of Castile. The neces- sity of some great change became the com- mon theme. " It is impossible," says Lord sidies, only five, at the utmost, having been pre- viously gi-anted. He either entertained the view of thus gaining consideration with the king, or of moving him to an alliance with the Spaniards, in whose confidence he is." — Montreuil's dispatches, in Raumer, ii., 308. * Pari. Hist. Rushworth. Nalson. Cha. I— 1629-40.] FROM HENRY VII. TO GEORGE II. 2S9 Northumberland, at that time a courtier, " that things can long continue in the con- dition they are now in ; so general a defec- tion in this kingdom hath not been known in the memoiy of any !"* Several of those who thought most deeply on public afi'airs now entered into a private communication with the Scots insurgents. It seems prob- able, from the well-known stoiy of Lord Saville's forged letter, that there had been veiy little connection of this kind until the present summer;! and we may conjecture that during this ominous interval, those great projects, which were displayed in the next session, acquired consistence and ripeness by secret discussions in the houses of the Earl of Bedford and Lord Say. The king, meanwhile, experienced aggravated misfor- tune and ignominy in his military operations. Ship-money, indeed, was enforced with greater rigor than before, several sheriffs and the lord-mayor of London being prose- cuted in the Star Chamber for neglecting to levy it. Some citizens were imprisoned for refusing a loan. A new imposition was laid on the counties, under the name of coat- and-conduct-monej-, for clothing and defray- ing tlie ti-aveling charges of the new levies. t A state of actual invasion, the Scots having passed the Tweed, might excuse some of these irregularities, if it could have been forgotten that the war itself was produced by the king's impolicy, and if the nation had not been prone to see friends and deliver- ers rather than enemies in the Scottish army. They were, at the best, indeed, troublesome and expensive guests to the northern counties which they occupied; but the cost of their visit was justly laid at the king's door. Various arbitrary resour- ces having been suggested in the council, and abandoned as inefficient and impracti- cable, such as the seizing the merchants' bullion in the mint, or issuing a debased coin, the unhappy king adopted the hopeless * June 4, 1640. Sidney Papers, ii., 654. t A late vrriter has spoken of this celebrated letter as resting on very questionable authority. — Lingard, x., 43. It is, however, mentioned as a known fact by several cotemporai'y writers, and particularly by the Earl of Manchester, in his un- published Memorials, from which Nalson has made extracts ; and who could neither be mistaken, nor have any apparent motive, in this private narra- tive, to deceive. — Nalson, ii., 427. t Ryraer, xx., 432. Rashw^orth Abr., iii., 163, &c. Nalson, i., 389, &c. Raumer, ii., 318. T scheme of convening a great council of all the peers at York, as the only al- council of ternative of a Parliament.* It was foreseen that this assembly would only ad- vise the king to meet his people in a legal way. The public voice could no longer be suppressed. The citizens of London pre- sented a petition to the king, complaining of grievances, and asking for a Parliament. This was speedily followed by one signed by twelve peers of popular character, f The lords assembled at York al- „ Convocatiou most unanimously concurred in of the Long the same advice, to which the " '^'nent. king, after some hesitation, gave his assent. They had more difficulty in bringing about a settlement with the Scots : the E nglish army, disaffected and undisciplined, had al- ready made an inglorious retreat ; and even Strafford, though passionately against a treaty, did not venture to advise an engage- ment.J The majority of the peers, how- ever, overruled alL opposition ; and in the alarming posture of his affairs, Charles had no resource but the dishonorable pacification of Ilipon.§ Anticipating the desertion of * Lord Clarendon seems not to have well un- derstood the secret of this Great Council, and sup- poses it to have been suggested by those who wished for a Parliament, whereas the Hardwicke Papers show the conti-ary. — P. 116 and 118. His notions about the facility of composing the public discoutent are sti'angely mistaken. " Without doubt," he says, " that fire at that time, which did shortly after burn the whole kingdom, might have been covered under a bushel." But the whole of this introductory book of his History abounds with proofs that he had partly forgotten, partly never known, the state of England before the opening of the Long Parliament. In fact, the disaffection, or at least discontent, had proceeded so far in 1640, that no human skill could have averted a great part of the consequences. But Clarendon's par- tiality to the king, and to some of his advisers, leads him to see in every event particular causes, or an overruling destiny, rather than the sure oper- ation of impolicy and misgoveniment. t These were Hertford. Bedford, Essex, War- wick, Paget, Wharton, Say, Brooke, Kimbolton, Saville, Mulgrave, Bolingbroke. — Nalson, 436, 437. t This appears from the minutes of the council (Hardwicke Papers), and contradicts the common opinion. Lord Conway's disaster at Newburn was by no means surprising ; the EngUsh troops, who had been lately pi-essed into sei-vice, were perfect- ly mutinous ; some regiments had risen and even murdered their officers on the road. — Rymer, 414, 425. § The Hardwicke State Papers, ii., 168, &c., contain much interesting information about the 290 COXSTITUTIOXAL HISTORY OF ENGLAND [Chap. XI. some who had partaken in his councils, and ] fording any, he awaited in fearful suspense conscious that others would more stand in j the meeting of a Parliament, need of his support than be capable of af- | CHAPTER IX. FROM THE MEETING OF THE LONG PARLIAMENT TO THE BEGINNHNG OF THE CIVIL WAR. Character of Long Parliament. — Its salutary Meas- ures.— Triennial Bill. — Other beneficial Laws. — Observations. — Impeachment of Strafford. — Dis- cussion of its Justice. — Act against Dissolution of Parliament withoat its Consent. — Innovations meditated in the Church. — Schism in the Con- ■ stitutional Party. — Remonstrance of November. 1641. — Suspicions of the King's Sincerity. — . duestion of the Militia. — Historical Sketch of Military Force in England. — Encroachments of the Parliament. — Nineteen Propositions — Dis- cussion of the respective Claims of the two Par- . ties to Support. — Faults of botli. We are now arrived at that momentous Character of P^^O"^ '° histoiy which nO the Long Englishman ever regards without Parliament. jQ^g^est, and few without preju- dice ; the period from which the factions of modern rimes trace their divergence; which, after the lapse of almost two centu- ries, still calls forth the warm emotions of party -spirit, and affords a test of political principles ; at that famous Parliament, the theme of so much eulogy and of so much reproach ; that synod of inflexible patriots with some, that conclave of traitorous rebels with others ; that assembly, we may more truly say, of unequal virtue and checkered fame, which, after having acquired a higher claim to our gratitude, and effected more for our liberties, than any that had gone be- fore or that has followed, ended by subvert- ing the Constitution it had strengthened, and by sinking in its decrepitude, and amid public contempt, beneath a usurper it had Its salutary blindly elevated to power. It seems agreeable to our plan first measures. Council of York. See, also, the Clarendon Collec- tion for some curious letters, with marginal notes by the king. In one of these he says : " The may- or now, with the city, are to be flattered, not threatened." — P. 123. Windebank writes to him in another (Oct. 19, 1640), that the clerk of the Lower House of Parliament had come to demand the journal-book of the last assembl}- and some pe- titions, which, by the king s command, he ^\Vin- debank) had taken into his custody, and requests to know if they should be given up. Charles writes on the margin, " Ay, by all means.'' — P. 132. j to bring together those admirable provisions ' by which this Parliament restored and con- solidated the shattered fabric of our Consti- tution, before we advert to its measures of more equivocal benefit or its fatal errors ; j an arrangement not very remote from that ! of mere chronology, since the former were chiefly completed within the first nine j months of its session, before the king's ' journey to Scotland in the summer of ' 1641. It must, I think, be admitted by eveiy one who concurs in the representation giv- en in this work, and especially in the last chapter, of the practical state of our govern- ment, that some new securiries of a more powerful efificacy than any which the exist- ing laws held forth were absolutely indis- pensable for the preservarion of English liberties and privileges. These, however sacred in name, however venerable by pre- scription, had been so repeatedly transgress- ed, that to obtain their confirmation, as had been done in the Petition of Right, and that as the price of large subsidies, would but j expose the Commons to the secret derision I of the court. The king by levying ship- ' money in contravention of his assent to that petition, and by other marks of insincerity, had given too just cause for suspicion that, though very conscientious in his way, he had a fund of casuistiy at command that would always release him from any obliga- tion to respect the laws. Again, to punish delinquent ministers was a necessary piece of justice : but who could expect that any such retribution would deter ambitious and intrepid men from the splendid lures of power ? Whoever, therefore, came to the Parliament of November, 1640. with serious and steady purposes for the public weal, and most, I believe, except mere courtiers, ; entertained such purposes according to the I measure of their capaciries and energies, ' must have looked to some essential change ! in the balance of government, some import- CHA. 1.-1040-42.] PROM HENRY VII. TO GEORGE II. 291 ant limitntlons of royal authority, as the pri- mary object of his attendance. Nothing could 1)6 more obvious than that the excesses of the late unhappy times had chiefly originated in tlie long intermission of Parliaments. No lawyer would have dared to suggest ship-money with the ter- rors of aHouse of Commons before his eyes. But the king's known resolution to govern without Parliaments gave bad men more confidence of impunity. This resolution was not likely to l)e shaken by the unpala- table chastisement of his servants and re- dress of abuses, on which the present Par- liament was about to enter. A statute as old as the reign of Edward III. had already provided that Parliaments should be held " eveiy year, or oftener, if need be."* But this enactment had in no age been respected. It was certain that in the present temper of the administration, a law simply enact- ing that the interval between Pai-liaments should never exceed three years, would Triennial pi"ove wholly inefTectual. In the 2'"- ' famous act, therefore, for triennial Parliaments, the first fruits of the Com- mons' laudable zeal for reformation, such provisions were introduced as gi-ated harsh- ly on the ears of those who valued the I'oy- ai prerogative above the liberties of the sub- ject, but without which the act itself might have been dispensed with. Every Parlia- ment was to be ipso facto dissolved at the expiration of three years from the first day of its session, unless actually sitting at the time, and in that case, at its first adjourn- ment or prorogation. The chancellor or keeper of the great seal was to be sworn to issue writs for a new Parliament within three years from the dissolution of the last, under pain of disability to hold his office, and further punishment ; in case of his fail- ure to comply with this provision, the peers were enabled and enjoined to meet at West- minster, and to issue writs to the sheriflls ; the sherifis themselves, should the peers not fulfill this duty, were to cause elections to be duly made ; and in their default, at a prescribed time the electors themselves were to proceed to choose their representa- * 4 Edw. 3, c. 14. It appears by the Jommals, 30th Dec., 1640, that the Trienuial Bill was origi- nally for the yearly holding of Parliaments. It seems to have been altered in the committee ; at least we find the title changed, Jan. 19 lives. No future Parliament was to be dis- solved or adjourned, without its own con- sent, in less than fifty days from the open- ing of its session. It is more reasonable to doubt whether even these provisions would have afforded an adequate security for the periodical assembling of Parliament, wheth- er the supine and courtier-like character of the peers, the want of concert and energy in the electors theiuselves, would not have enabled the government to set the statute at naught, than to censure them as derogato- ry to the reasonable prerogative and dignity of the crown. To this important bill, the king, with some apparent unwillingness, gave his assent.* It effected, indeed, a strange revolution in the system of his gov- ernment. The nation set a due value on this admirable statute, the passing of which they welcomed with bonfires and every mark of joy. After laying this solid foundation for the maintenance of such laws as they Beneficial might deem necessary, the House of Commons proceeded to cut away the more flagrant and recent usurpations of the crown. They passed a bill declaring ship- money illegal, and annulling the judgment of the Exchequer Chamber against Mr. Hampden, f They put an end to another contested prerogative, which, though inca- pable of vindication on any legal authority, had more support from a usage of fourscore years, the levying of customs on merchan- dise. In an act gi-anting the king tonnage and poundage, it is " declared and enacted that it is, and hath been the ancient right of the subjects of this realm, that no subsidy, custom, impost, or other charge whatsoev- ei", ought, or may be laid or imposed upon any merchandise exported or imported by subjects, denizens, or aliens, without com- mon consent in Parliament."! This is the last statute that has been found necessary * Pari. Hist., 702, 717. Stat. 16 Car. I., c. 1. t C. 14. t C. 8. The king had professed, in Lord-keep- er Finch's speech on opening the Parliament of April, 1640, that he had only taken tonnage and poundage de facto, without claiming it as a right, and had caused a bill to be prepared, granting it to him from the commencement of his reign. — Pari. Hist, 533. See preface to Hargrave's Col- lection of Law Tracts, p. 195, and Rymer, xx., 118, for what Charles did with respect to impositions on merchandise. The Long Parliament called the farmers to account. 292 CONSTITUTIONAL HISTORY OF ENGLAND [Chap. IX. Observations. to restrain the crown from arbitrary taxa- tion, and may be deemed the complement of those numerous provisions which the vii-tue of ancient times had extorted from the first and third Edwards. Yet these acts were hardly so indispens- able, nor wought so essential a change in the character of our monarchy, as that which abolished the Star Chamber. Though it was evident how lit- tle the statute of Hemy VII. could bear out that overweening power it had since arro- gated ; though the statute-book and Parlia- mentary records of the best ages were iiTef- ragable testimonies against its usurpations, yet the course of precedents under the Tu- dor and Stuart families was so invariable that nothing more was at first intended than a bill to regulate that tribuned. A sugges- tion, thrown out, as Clarendon informs us, by one not at all connected with the more ardent reformers, led to the substitution of a bill for taking it altogether away.* This abrogates all exercise of jui'isdiction, prop- erly so called, whether of a civil or criminal nature, by the privy-council, as well as the Star Chamber. The power of examining and committing persons charged \vith offens- es is by no means taken away ; but, with a i-eti-ospect to the language held by the judges and crown lawyers in some cases that have been mentioned, it is enacted, that every person committed by the coun- cil, or any of them, or by the king's special command, may have his writ of habeas cor- pus ; in the return to which, the officer in whose custody he is shall certify the true cause of his commitment, which the court, from whence the writ has issued, shall * 16 Car. I., c. 10. The abolition of the Star Chamber was first moved, March 5th, 1641, by Lord Andover, in the House of Lords, to which he had been called by writ. Both he and his father, the Earl of Berkshire, were zealous Royalists dur- ing the subsequent war. — Pari. Hist., 722. But he is not, I presume, the person to whom Claren- don alludes. This author insinuates that the act for taking away the Star Chamber passed both Houses without sufficient deliberation, and that the peers did not venture to make any opposition ; whereas there were two conferences between the Houses on the subject, and several amendments and provisos made by the Lords, and agreed to by the Commons. Scarce any bill, during this ses- sion, received so much attention. The king made some difiiculty about assenting to the bills taking away the Star Chamber and High Commission courts, but soon gave way. — Pari. Hist., 853. within three days examine, in order to see whether the cause thus certified appear to be just and legal or not, and do justice ac- cordingly by delivering, bailing, or remand- ing the party. Thus fell the great Court of Star Chamber, and with it the whole ir- regular and arbitraiy practice of govern- ment, that had for several centuries so thwarted the operation and obscured the light of our free Constitution, that many have been prone to deny the existence of those liberties which they found so often infi-inged, and to mistake the violations of law for its standard. With the Court of Star Chamber perbh- ed that of the High Commission, a younger birth of tyranny, but perhaps even more hateful, from the peculiar irritation of the times. It had stretched its authority be- yond the tenor of the act of Elizabeth where- by it had been created, and which limits its competence to the correction of ecclesiastic- al offenses according to the known bounda- ries of ecclesiastical jurisdiction, assuming a right not only to imprison, but to fitie the laity, which was generally reckoned illegal.* The statute repealing that of Elizabeth, un- der which the High Commission existed, proceeds to take away from the ecclesias- tical courts all power of inflicting temporal penalties, in terms so large, and, doubtless, not inadvertently employed, as to render their jm-isdiction nugatory. This part of the act was repealed after the Restoration ; and, like the other measures of that time, \vith little care to prevent the recun-ence of those abuses which had provoked its en- actments.f A single clause in the act that abolished the Star Chamber was sufficient to annihi- late the arbitrary jurisdiction of several oth- er iiTegular tribunals, grown out of the des- potic temper of the Tudor dynasty — the Court of the President and Council of the North, long obnoxious to the common law- yers, and lately the sphere of Strafford's tyrannical an'ogance ;t the Court of the * Coke has strongly argued the illegality of fin- ing and imprisoning by the High Commission, 4th Inst.. 324. And he omitted this power in a com- mission he drew, "leaving us," says Bishop Will- iams, " nothing but the old rusty sword of the Church, excommunication.'" — Cabala, p. 103. Care was taken to restore this authority in the reign of Charles. t 16 Car. L, c. 11. { Hyde distinguished himself as chairman of the Cha. I.— 1610-42] FROM HENRY VH. TO GEORGE 11. 293 President and Council of Wales and the Welsh Marches, which had pretended, as before mentioned, to a jurisdiction over the adjacent counties of Salop, Worcester, Herefoi'd, and Gloucester; with those of the duchy of Lancaster and county palatine of Chester : these, under various pretexts, had usurped so extensive a cognizance as to deprive one third of England of the privileg- es of the common law. The jurisdiction, however, of the two latter courts in matters touching the king's private estate has not been taken away by the statute. Another act Jifforded remedy for some abuses in the stannaiy courts of Cornwall and Devon.* Others retrenched the vexatious preroga- tive of purvej'ance, and took away that of compulsory knighthood, f And one of great- er importance put an end to a fruitful source of oppression and complaint, by determining forever the extent of royal forests, according to their boundaries in the twentieth year of James, annulling all the peraujbulations and inquests by which they had subsequently been eulm-ged.t I must here reckon, among the beneficial acts of this Parliament, one that passed some months afterward, after the king's return from Scotland, and perhaps the only measure of that second period on which we can bestow uimiixed commendation. The delays and uncertainties of raising troops by voluntary enlistment, to which the temper of the English nation, pacific though intrep- id, and impatient of the strict control of martial law, gave small encouragement, had led to the usage of pressing soldiers for serv- ice, whether in Ireland, or on foreign ex- peditions. This prerogative seeming dan- gerous and oppressive, as well as of dubious legalitj', it is recited in the preamble of an act empowering the king to levy troops by this compulsorj^ method for the special ex- igency of the Irish rebellion, that " by the laws of this realm, none of his majesty's subjects ought to be impressed or compell- ed to go out of his countiy to seiTe as a committee which brought in the bill for abolishing the court of York. In his speech on presenting this to the Lords, he alludes to the tjramiy of Strafford, upt rudely, but in a style hardly consist- ent with that of his History.— Pari. Hist, 766. The editors of this, however, softened a little what he did say in one or two places ; as where he uses the word tyranny, in speaking of Lord Mountuor- rii's case. * C. 15. \ C. 19, 20. \ C. 16. ] soldier in the wars, except in case of neces- sity of the sudden coming in of strange en- emies into the kingdom, or except they be otherwise bound by the tenure of their lands or possessions."* The king, in a speech from the throne, adverted to this bill while passing through the Houses, as an invasion of his prerogative. This notice of a Parliamentary proceeding the Commons resented as a breach of their privilege ; and having obtained the consent of the Lords to a joint remonstiance, the king, who was in no state to maintain his objection, gave his assent to the bill. In the reigns of Eliza- beth and James, we have seen frequent in- stances of the crown's interference as to matters debated in Parliament. But from the time of the Long Parliament, the law of privilege, in this respect, has stood on an unshaken basis, f These are the principal statutes which we owe to this Parliament. They give occasion to two remarks of no slight im- portance. In the first place, it will appear, on comparing them with our ancient laws and history, that they made scarce any ma- terial change in our Constitution such as it had been established and recognized under the house of Plantagenet: the law for tri- ennial Parliaments even receded from those unrepealed provisions of the reign of Ed- ward III., that they should be assembled annually. The Court of Star Chamber, if it could be said to have a legal jurisdiction at all, which by that name it had not, traced it only to the Tudor period ; its recent ex- cesses were diametrically opposed to the existing laws, and the protestations of an- cient Parliaments. The Court of Ecclesi- astical Commission was an oflfset of the royal supremacy, established at the Refor- mation. The impositions on merchandise were both plainly illegal, and of no long usage. That of ship-money was flagrant- ly, and by universal confession, a sti-ain of arbitrary power without ]jretext of right. Thus, in by far the greater part of the en- actments of 1641, the monarchy lost noth- "C. 28. t Journals, 16th of Dec. Pari. Hist., 968. Nalson, ! 750. It is remarkable that Clarendon, who ifi suf- ficiently jealous of all tliat he thought encroach- ment in the Commons, does not censure their ex- pHcit assertion of this privilege. He lays the blame of the king's interference on St. John's ad- vice, which is very improbable. ^94' CONSTITUTIONAL HISTORY OF ENGLAND [Chap. IX.' ing that it had anciently po.ssessed, and the balance of our Constitution might seem rather to have been restored to its former equipoise than to have undergone any fresh change. But those common liberties of England whicli our forefathers had, with such com- mendable perseverance, extorted from the grasp of power, though by no means so merely theoretical and nugatory in effect as some would insinuate, were yet very pre- carious in the best periods, neither well defined, nor exempt from anomalous ex- ceptions, or from occasional infringements. Some of them, such as the statute for an- nual sessions of Parliament, had gone into disuse. Those that were most evident could not be enforced ; and the new tribu- nals that, whether by law or usurpation, had reared their heads over the people, had made almost all public and personal rights dependent on their arbitrary wiU. It was necessary, therefore, to infuse new blood into the languid frame, and so to renovate our ancient Constitution that the present era should seem almost a new birth of lib- erty. Such was the aim, especially, of those provisions which placed the return of Parliaments at fixed intervals, beyond the power of the crown to elude. It was hoped that by their means, so long as a sense of public spirit should exist in the nation (and beyond that time it is vain to think of liber- tj-), no prince, however able and ambitious, could be free from restraint for more than three years ; an interval too short for the completion of arbitrary projects, and which few ministers would venture to employ in such a manner as might expose them to the wrath of Parliament. It is to be observed, in the second place, that by these salutary resti-ictions and some new reti'enchments of pernicious or abused prerogative, the Long Parliament formed our Constitution such nearly as it now exists. Laws of great importance were doubtless enacted in subsequent times, particularly at the Revolution ; but none of them, perhaps, were strictly necessary for the preservation of our civil and political privileges ; and it is rather from 1641 than any other epoch, that we may date their full legal establishment. That single statute which abolished the Star Chamber, gave every man a security which no other enactments could have af- forded, and which no government could es- sentially impair. Though the reigns of the two latter Stuarts, accordingly, are justly obnoxious, and were marked by several il- legal measures, yet, whether we consider the number and magnitude of their trans- gressions of law, or the practical oppression of their government, these princes fell very short of the despotism that had been exer- cised either under the Tudors or the two first of their own family. From this survey of the good works of the Long Parliament, we must turn our eyes with equal indifference to the oppo- site picture of its errors and offenses ; faults which, though the mischiefs they produced were chiefly temporary, have yet served to obliterate from the recollection of too many the permanent blessings we have inherited through its exertions. In reflecting on the events which so soon clouded a scene of 1 glory, we ought to learn the dangers that attend all revolutionaiy crises, however jus- tifiable or necessary ; and that, even when posterity may have cause to rejoice in the ultimate result, the existing generation are seldom compensated for their present loss of ti'anquillity. The very enemies of this Parliament confess that they met in No- vember, 1640, with almost unmingled zeal for the public good, and with loyal attach- ment to the crown. They were the cho- sen representatives ofcthe commons of Eng- land, in an age more eminent for steady and scrupulous conscientiousness in private life, than any, perhaps, that had gone before or has followed ; not the demagogues or ad- venturers of transient popularity, but men well-bom and wealthy, than whom there could, perhaps, never be assembled five hundred more adequate to redress the giievances or to fix the laws of a great na- tion. But they were misled by the excess of two passions, both just and natural in the circumstances whei-ein they found them- selves, resentment and distrust*; passions eminently contagious, and irresistible when they seize on the zeal and ci'edulity of a popular assembly. The one betrayed them into a measure certainly severe and san- guinary, and in the eyes of posterity ex- posed to gi-eater reproach than it deseiTed, the attainder of Lord Strafford, and some other proceedings of too much violence ; the other gave a color to all their resolutions» Cha. I.— 1640-42.] FROM HENRY VII. TO GEORGE II. 295 and aggravated tlieir diflerences with the king till there remained no other arbitrator but the sword. Tliose who know the conduct and char- T . acter of the Earl of Sti-aftbrd, his Tmpeacn- nient of abuse of power in the North, his Strafford. {• . , ■ far more outrageous transgressions in Ireland, his dangerous influence over the king's counsels, can not hesitate to admit, if, indeed, they profess any regard to the Con- stitution of this kingdom, that to bring so great a delinquent to justice according to the known process of law was among the rprimary duties of tlie new Parliament. It was that which all, witli scarce an excep- tion but among his own creatures (for most of the court were openly or in secret his enemies*), ardently desired, yet which the king's favor and his own commanding genius must have rendered a doubtful enterprise. Ho came to Loudon, not unconscious of the danger, by his master's direct injunctions. The first days of the session were critical ; and any vacillation or delay in the Com- mons might probably have given time for some sti-ong exertion of power to frustrate their designs. We must therefore consid- er the bold suggestion of Pym, to cany up to the Lords an impeachment for high trea- son against Straflbrd, not only as a master- stroke of that policy which is fittest for rev- olutions, but as justifiable by the circum- stances wherein they stood. Nothing short of a commitment to the Tower would have broken the spell that so many years of ar- bitrary dominion had been working. It was villingness to select his advisers from their ranks, what- ever cause there might be to suspect that their real influence over him would be too inconsiderable.* Those who were still ex- cluded, and who distnisted the king's inten- tions as well toward themselves as the pub- lic cause, of whom Pym and Hampden, with mons for the same office, and would doubtless have been a fitter man at the time, notwithstanding the other's eminent virtues. — Sidney Letters, ii., 665, 666. See, also, what BaiUie says of the introduc- tion of seven lords, " all Commonwealth's men," into the council, though, as generally happens, he is soon discontented with some of them. — P. 246, 247. There was even some jealousy of Say, as fa- voring Strafford. * Whitelock, p. 46. Bedford was to have been lord-treasurer, with Pym, whom he had brought into Parliament for Tavistock, as his chancellor of the Exchequer; Hollis secretary of state. Hamp- den is said, but not, perhaps, on good authority, to have sought the office of governor to the Prince of Wales, which Hume, not very candidly, brings as a proof of his ambition. It seems probable that, if Charles had at that time (Maj-, 1641) carried these plans into execution, and ceased to Usten to the queen, or to those persons about his bedchamber who were perpetuaUj- leading him astray, he would have escaped the exorbitant demands which were afterward made upon him, and even saved his fa- vorite Episcopacy. But, after the death of the Earl of Bedford, who had not been hostile to the Church, there was no man of rank in that party whom he liked to trust; Northumberland having acted, as he thought, very ungratefully. Say being a known enemy to Episcopacy, and Essex, though of the highest honor, not being of a capacity to re- tain much influence over the leaders of the other House. Clarendon insinuates that, even as late as March, 1642, the principal patriots, with a few exceptions, would have been content with coming themselves into power under the king, and on this condition would have left his remainuig preroga- tive untouched (ii., 326). But it seems more prob- able that, after the accusation of the five members, no measure of this kind would have been of any service to Charles. Cha. 1.-1640-40] FEOM HEXEY VIL TO GEOEGE II. 305 the assistance of St. John, though actually solicitor-general, were the chief, found uo better means of keeping alive the animosity that was beginning to subside than by fram- ing the Remonstrance on the State of the Kingdom, presented to the king in Novem- ber, 1641. This being a recapitulation of „ all the gi-ievances and misgov- of November, ernment that had existed since his accession, which his acqui- escence in so many measures of redress ought, according to the conmiou courtesy due to sovereigns, to have canceled, was haixlly capable of answering any other pur- pose than that of reanimating discontents almost appeased, and guarding the people against the conlidence they were beginning to place in the king's sincerity. The pro- moters of it might also hope, from Chai-les's proud and hasty temper, that he would re- ply in such a tone as would more exasperate the Commons. But he had begun to use the advice of judicious men, Falkland, Hyde, and Colepepper, and reined in his natural violence so as to give his enemies no ad- vantage over him. The jealousy which nations ought never to jay aside was especially requhed toward Charles, whose love of arbitrary dominion was much better proved than his sincerity in relinquishing it. But if he were intended to reign at all, and to reign with any portion either of the prerogatives of an English king, or the respect claimed by every sover- eign, the Remonstrance of the Commons could but prolong an iri-itation incompatible with public tranquiUity. It admits, indeed, of no question, that the schemes of Pyra, Hampden, and St. John already tended to restrain the king's personal exercise of any effective power, from a sincere persuasion that no confidence could ever be placed in him, though not to abolish the monarchy, or probablj- to abridge in the same degree the rights of his successor. Their Remon- strance was put forward to stem the return- ing tide of loyalty, which not only threatened to obsti-uct the further progi-ess of their en- deavors, but, as they would allege, might, by gaining strength, wash away some, at least, of the bulwarks that had been so re- cently constructed for the preservation of liberty. It was caiTied in a full house by the small majority of 159 to 148.* So much * Commons' Joumals, 22d November. On a u j was it deemed a trial of sti-ength, that Croni- second division the same night, whether the Re- ' monstrance should be printed, the popular side lost I it by 124 to 101 ; but on the loth of December the i printing was carried by 135 to 63. Several divis- j ions on important subjects about this time show ' that the Ro3alist minority was very formidable; ! but the attendance, especially on that side, seems I to have been irregrular ; and in general, when we j consider the immense importance of these debates, I we are surprised to find the House so deficient in I numbers as many divisions show it to liave been. , Clarendon frequently complains of the sapineuess ! of his party ; a fault invariably imputed to their friends by the zealous supporters of estabhshed authority-, who forget that sluggish, lukewarm, and j thoughtless tempers must always exist, and that I such will naturally belong to their side. I find in the short pencil notes taken by Sir Ralph Vemey, with a copy of which I have been favored by Mr. Sergeant D'Oyly, the following entrj' on the 7th of August, before the king's journey to Scotland: "A remonstrance to be made how we found the kingdom and the Church, and how the state of it now stands." This is not adverted to in Xalson, nor in the Journals at this time ; but Clarendon sajs, in a suppressed passage, vol. ii., Append., 591, that " at the beginning of the Parliament, or shortly after, when all men were inflamed with the pressures and illegalities which had been ex- ercised upon them, a committee was appointed to prepare a remonstrance of the state of the king- dom, to be presented to his majesty, in which the several grievances might be recited, which com- mittee had never brought any report to the House ; most men conceiWug, and verj- reasonably, that the quick and effectual progress his majesty made for the reparation of those grievances, and pre- vention of the like for the future, had rendered that work needless. But as soon as the intelligence came of his majesty being on his way from Scot- laud toward London, that committee was, with great earnestness and importunity, called upon to bring in the draft of such remonstrance," &c. I find a slight notice of this origin of the remonstrance in the Journals, Nov. 17, 1640. In another place, also suppressed in the com- mon editions. Clarendon says : " This debate held many hours, in which the framers and contrivers of the declaration said very little, or answered any reasons that were alleged to the contrarj- ; the only end of passing it, which was to incline the people to sedition, being a reason not to be given; but called still for the question, presmning their number, if not their reason, would ser\-e to carry it ; and after two in the morning (for so long the debate continued, if that can be called a debate when those only of one opinion argued), &c., it was put to the question." What a strange mem- ory this author had ! I have now before me Sir Ralph Vemey's MS. note of the debate, whence it appears that Pjto, Hampden, Hollis, Glyn, and Maynard spoke in favor of the Remonstrance ; nay, as far as these brief memoranda go, Hyde himself seems not to have warmly opposed it. 306 CONSTITUTIONAL HISTOB,Y OF ENGLAND [Chap. IX. well declared after the division that, had the question been lost, he would have sold his estate and retired to America. It may be thought rather surprising that. Suspicions ^vith a House of Commons so of the king's nearly balanced as they appear on sincerity. ^j^.^ vote, the king should have new demands that annihilated his authority made upon him, and have found a greater majority than had voted the Remonstrance ready to oppose him by arms, especially as that paper contained little but what was true, and might rather be censured as an ill-timed provocation than an encroachment on the Constitutional prerogative. But there were circumstances, both of infelicity and misconduct, which aggi'avated that distrust whereon every measure hostile to him was grounded. His imprudent connivance at popery, and the far more reprehensible en- couragement given to it by his court, had sunk deep in the hearts of his people. His ill-wishers knew how to in-itate the char- acteristic sensibility of the English on this topic. The queen, unpopular on the score of her imputed arbitrary counsels, was odi- ous as a maintainer of idolatry.* The lenity shown to convicted popish priests, who, though liable to capital punishment, had been suffered to escape with sometimes a very short imprisonment, Avas naturally (ac- cording to the maxims of those times) treated as a gi'ievance by the Commons, who petitioned for the execution of one Goodman and others in similar circumstan- ces, perhaps in the hope that the king would attempt to shelter them. But he dexter- ously left it to the House whether they * The letters of Sir Edward Nicholas, published as a supplement to Eveljni's Diary, show how gen- erally the apprehensions of popish influence were entertained. It is well for superficial pretenders to lay these on calumny and misrepresentation ; but such as have read our historical documents Tsnow that the Hoyalists were almost as jealous of the king in this respect as the Puritans. See what Nicholas says to the king himself, p. 22, 05, 29. In- deed, he gives several hints to a discerning reader that lie was not satisfied with the soundness of the king's intentions, especially as to O'Neale's tam- pering with the army, p. 77. Nicholas, however, became afterward a very decided supporter of the royal cause ; and in the council at Oxford, just be- fore the treaty of Uxbridge, was the only one who voted according to the king's wish, not to give the members at Westminster the appellation of a Par- liament.—P. 90. I should die or not ; and none of them ac- tually suffered.* Rumors of pretended con- spiracies by the Catholics were perpetually in circulation, and rather unworthily en- couraged by the chiefs of the Commons. More substantial motives for alarm appeared to arise from the obscure ti-ansaction in Scot- land, commonly called the Incident, which looked so like a concerted design against the two great leaders of the Constitutional par- ty, Hamilton and Argyle, that it was not un- natural to anticipate something similar ia England. f In the midst of these appre- hensions, as if to justify every suspicion and every severity, burst out the Irish Rebell- ion with its attendant massacre. Though nothing could be more unlikely in itself, or less supported by proof, than the king's con- nivance at this calamity, from which every man of common understanding could only expect, wliat actually resulted from it, a terrible aggravation of his difficulties, yet, with that distrustful temper of the English, and their jealous dread of popery, he was never able to conquer their suspicions that he had either instigated the rebellion, or was very little solicitous to suppress it ; sus- picions indeed, to which, however unground- ed at this particular period, some circum- stances that took place afterward gave an api)arent confirmation. t * The king's speech about Goodman, Baillie tells us, gave great satisfaction to all ; " with much humming was it received."^ — -P. 240. Goodman petitioned the House that be might be executed rather than become the occasion of differences be- tween the king and Parliament. This was earlier in time, and at least equal in generosity, to Lord Strafford's famous letter ; or perhaps rather more so, since, though it turned oat otherwise, he had greater reason to expect that he should be taken at his word. It is remarkable, that the king sa.ys in his answer to the Commons, that no priest had been executed merely for religion either by his father or Elizabeth, which, though well meant, was quite untrue.— Pari. Hist, 712. Butler, ii., 5. t See what Clarendon says of the effect pro- duced at Westminster by the Incident, in one of the suppressed passages. — Vol. ii., Append., p. 575, edit. 1826. X Nalson, ii., 788, 792, 804. Clarendon, ii., Bi. The queen's behavior had been extraordinarily im- prudent from the very beginning. So early as Feb. 17, 1641, the French ambassador writes word: "La reine d'Augleterre dit publiquement qu'il y a une treve arrestee pom- trois ans entre la France et I'Espagne, et que ces deux couronnes vont onir leurs forces po'jr la defendre et pour venger les Cutholiques." — Mazure, Hist, de la Revol. eu 1683, Cha. I.— 1640-42.] FROM HENRY VII. TO GEORGE H. 307 It was, perhaps, hardly practicable for the king, had he given less real excuse for it than he did, to lull that disquietude which so many causes operated to excite. The most circumspect discretion of a prince in such a difficult posture can not restrain the rashness of eager adherents, or silence the murniure of a discontented court. Those nearest Charles's person, and who always possessed too much of his confidence, were notoriously and naturally averse to the re- cent changes. Their threatening but idle speeches, and impotent denunciations of re- sentment, conveyed with malignant exag- geration among the populace, provoked those tumultuous assemblages, which afforded the king no bad pretext for withdrawing him- self from a capital where his personal dig- nity was so little respected.* It is impos- sible, however, to deny, that he gave by his own conduct no trifling reasons for sus- picion, and last of all by the appointment of Lunsford to the government of the Tower ; a choice for which, as it would never have been made from good motives, it was nat- ural to seek the worst. But the single false stepf which rendered his affairs irretrieva- ii., 419. She was very desirous to go to France, doubtless to interest her brother and the queen in the cause of royalty. Lord Holland, who seems to have been the medium between the Parliament- ary chiefs and the French court, signified how much this would be dreaded by the former ; and Richelieu took care to keep her away, of which she bitterly complained. This was in Febmary. Her majesty's letter, which M. Mazure has been malicious enough to print verbatim, is a curious specimen of orthography. — Id., p. 416. Her own party were equally averse to this step, wliieh was chiefly the effect of cowardice; for Henrietta was by no means the high spirited woman that some have fancied. It is well known that a few months afterward she pretended to require the waters of Spa for her health, but was induced to give up her journey. * Clarendon, ii., 81. This writer intimates that the Tower was looked upon by the court as a bri- dle upon the city. t Nalson, ii., 810, and other writers, ascribe this accusation of Lord Kimbolton in the Peers, and of the five members, as they are commonly called, Pym, HoUis, Hampden, Hazlerig, and Strode, to secret information obtained by the king in Scotland of their former intrigues with that nation. This is rendered in some measure probable by a part of the written charge preferred by the attorney-gen- eral before the House of Lords, and by expressions that fell from the king, such as, " it was a treason which they should all thank him for discovering." Clarendon, however, hardly hints at this; and ble by any thing short of civil war, and placed all reconciliation at an insuperable gives, at least, a hasty reader to understand that the accusation was solely grounded on their Par- liamentary conduct. Probably he was aware that the Act of Oblivion passed last year afforded a suf- ficient legal defense to the charge of corresponding with the Scots in 1G40. In my judgment, they had an abundant justification in the eyes of their coun- ti'y for intrigues which, though legally treasonable, had been the means of overtlirowing despotic power. The king and courtiers had been elated by the applause he received when he went into the city to dine with the lord-mayor on his return from Scotland ; and Madame de Motteville says plainly, that he detennined to avail himself of it iu order to seize the leaders in Parliament (i., 264). Nothing coulil be more irregular than the mode of Chai-les's proceedings m this case. He sends a message by the sergeant at arms to require of the speaker that five members should be given up to him on a charge of high treason ; no magisti-ate'a or counselor's waiTant appeared ; it was the king acting singly, without the intervention of the law. It is idle to allege, like Clarendon, that privilege of Parliament does not extend to treason ; the breach of privilege, and of all Constitutional law, was in the mode of proceeding. In fact, the king was guided by bad private advice, and cared not to let any of his privy-council know his intention, lest he should encounter opposition. The following account of the king's coming to the House on this occasion is copied from the pen- cil notes of Sir R. Vemey. It has been already printed by Mr. Hatsell (Precedents, iv., 106), but with no great coirectness. What Sir R. V. says of the transactions of Jan. 3 is much the same as we read in the Journals. He thus proceeds : "Tuesday, Januaiy 4, 1641. The five gentlemen which were to be accused came into the House, and there was information that they should be tak- en away by force. Upon this the House sent to the lord-mayor, aldermen, and common council, to let them know how their privileges were likely to be broken, and the city put into danger, and advis- ed them to look to their security. " Likewise some members were sent to the Inns of Court, to let them know how they heard they were tampered withal to assist the king against them, and therefore they desired them not to come to Westminster. " Then the House adjourned to one of the clock. "As soon as the House met again, it was mov- ed, considering there was an intention to take these five members away by force, to avoid all tumult, let them be commanded to absent themselves ; upon this the House gave them leave to absent themselves, but entered no order for it ; and then the five gentlemen went oat of the House. " A Uttle after, the king came with all his guard, and all his pensioners, and two or throe hundred soldiers and gentlemen. The king commanded the soldiers to stay in the hall, and sent us word he was at the door. The speaker was commanded to sit still, with the mace lymg before him ; and then 308 CONSTITUTIONAL HISTORY OF ENGLAND [Chap, IX distance, was his attempt to seize the five members within the waUs of the House ; an evident violation, not of common privi- lege, but of all secmity for the independent existence of Parliament in the mode of its execution, and leading to a very natural, though perhaps mistaken sunnise, that the charge itself of high treason made against these distinguished leaders, without com- municating any of its gi'ounds, had no other the king came to tlie door, and took tbe palsgrave in with him, and commanded aU that came with him upon their lives not to come in. So the doors were kept open, and the Earl of Roxbm-gh stood within the door, leaning: upon it. Then the king came upward toward the chair with his hat off, and the speaker stepped out to meet him; then the kuig stepped up to his place, and stood upon the step, hut sat not down in the chair. '• And after he had looked a great while, he told us he would not break our privileges, but treason had no privilege ; be came for those five gentle- men, for he expected obedience yesterday, and not an answer. Then he called Mr. Pym and Mr. Hollis by name, but no answer was made. Then he asked the speaker if they were here, or where they were ? Upon this, the speaker fell on his knees, and desired his excuse, for he was a servant to the House, and had neither eyes nor tongue to Bee or say any thing but what they commanded him : then the king told him he thought his own eyes were as good as his, and then said his birds had fiown, but he did expect the House should send them to him ; and if they did not, he would seek them himself, for then- treason was foul, and such a one as they would all thank him to discover: then he assured us they should have a fair trial ; and so went out, pulling off his hat till he came to the door. " Upon tliis, the House did instantly resolve to adjourn till to-mon-ow at one of the clock, and in the interim they might consider what to do. "Wednesday, 5th Januaiy, 1641. " The House ordered a committee to sit at GuUd- hall in London, and all that would come had voices. This was to consider and advise how to right the House in point of privilege broken by the king's coming yesterday with a force to take members out of our House. They allowed the Irish commit- tee to sit, but would meddle with no other business tiU this were ended ; they acquainted the Lords in a message with what they had done, and then they adjom-ued the House till Tuesday next." The author of these memoranda in pencil, which extend, at intervals of time, from the meeting of the Parliament to April, 1642, though mistaken by Mr. Hatsell for Sir Edmund Veniey, member for the county of Bucks, and killed at the battle of Edgehill, has been ascertained by my leained friend, Mr. Sergeant D'Oyly, to be his brother. Sir Ralph, member for Aylesbun,-. He continued at Westminster, and took the Coveuant;^ but after- ward retired to France, and was disabled to sit by a vote of the House, Sept. 22, 1645. I foundation than their Parliamentaiy con- duct ; and we are, in fact, wairanted by the authority of the queen herself to assert, that their aim in this most secret enterprise was to strike terror into the Parliament, and re- gain the power that had been wrested from their grasp.* It is unnecessary to dwell on a measure so well known, and which scarce any of the king's advocates have defended. The onlj- material subject it aflbrds for re- flection is, how far the manifest hostiUty of Charles to the popular chiefs might justify them in rendering it harmless by wresting the sword out of his hands. No man, doubt- less, has a right, for the sake only of his own security, to subvert his countrj-'s laws, or to plunge her into civil war. But Hamp- den, Hollis, and Pym might not absurdly consider the defense of English freedom bound up in their own, assailed as they were for its sake and by its enemies. It is observed by Clarendon, that " Mr. Hamp- den was much altered after this accusation, liis nature and courage seeming much fiercer than before :" and it is certain that both he and Mr. Pym were not only most forward in all the proceedings which brought on the war, but among the most implacable oppo- nents of all oveitures toward reconciliation ; so that although, both dying in 1643, we can not pronounce with absolute certainty as to their views, there can be little room to doubt that they would have adhered to the side of Cromwell and St. John in the gi eat separation of the Parliamentary party. The noble historian confesses that not Hampden alone, but the generality of those who were beginning to judge more favora- bly of the king, had their inclinations alien- ated by this fatal act of violence.! It is worthj- of remark, that each of the two most striking encroachments on the king's pre- * Mem. de Motteville, i., 264. Clarendon has hardly been ingenuous in throwing so much of the blame of this affair on Lord Digby. Indeed, he insinuates in one place that the queen's apprehen- sion of being impeached, with which some one in the confidence of the Pai-liamentarj- leaders (either Lord Holland or Lady Carlisle) had inspired her, led to the scheme of anticipating them (ii., 232). It has been generally supposed that Lady Carlisle gave the five members a hint to absent themselves. The French ambassador, however, Montreuil, takes the credit to himself: " J'avois prevenu mes amis, et ils s'etoient mis en surete.'' — Mazure, p. 429. It is probable that he was in communication with that intriguing lady. t P. 159, 180. Cha. I.— 1640-42.] PROM HENRY VII. TO GEORGE II. 309 rogative sprang directly from the suspicions roused of an intention to destroy their priv- ileges : the bill perpetuating the Parlia- ment having been hastily passed on the dis- covery of Percy's and .Jennyn's conspiracy, and the present attempt on the five mem- bers inducing the Commons to insist peremp- Question of torily ou vesting the command of the mihtia. {j^g njiiitia in persons of their own nomination ; a security, indeed, at which they had been less openly aiming from the time of that conspiracy, and particularly of late.* Every one knows that this was the * The earliest proof that the Commons gave of their intention to take the miUtia into their hands was immediately upon the discovery of Percy's plot, 5th of May, 1641, when au order was made that the members of each coauty, &c., should meet to oonsider in what state the places for which they serve are in respect of arms and ammunition, and whether the deputj"-lieutenauts and lord-lieuten- ants are persons well aS'ected to the religion and the public peace, and to present their names to the House, and who are the governors of forts and cas- tles ill their counties. — Commons' Journals. Not long afterward, or at least before the king's jonmey to Scotland, Sir Arthur Hazlerig, as Clarendon in- forms us, proposed a biU for settling the militia in such hands as they should uonimate, which was seconded by St. John, and read once, "but with so iiniversal a dislike, that it was never called upon a second time." — Clarendon, i., 488. I can find nothing of this in the Journals, and believe it to be one of the anachronisms into which this author has fallen, in consequence of writing at a distance from authentic materials. The bill to which he alhides must, I conceive, be that brought in by Hazlerig long after, 7th of Dec, 1641, not, as he terms it, for settling the militia, but for making certain persons, leaving their names in blank, " lords-general of all the forces within England and Wales, and lord-ad- miral of England." The persons intended seem to have been Essex, Holland, and Northumberland. The Commons had for some time planned to give the two former earls a supreme command over the trained bajids north and south of Trent (Journals, Nov. 15 and 16), which was afterward changed into the scheme of lord-lieutenants of their own nomination for each countj'. The bill above men- tioned having been once read, it was moved that it be rejected, which was negatived by 158 to 125. — Commons' Journals, 7th of Dec. Nalson, ii., 719, has made a mistake about these numbers. The bill, however, was laid aside, a new plan having been devised. It was ordered, 31st of Dec, 1641, " that the House be resolved into a committee ou Monday next (Jan. 3), to take into consideration the militia of the kingdom." That Monday, Jan. 3, was the famous day of the king's message about the five members ; and on Jan. 13, a declaration for putting the kingdom in a state of defense pass- ed the Commons, by which " all olBcers, magis- trates, &c., were enjoined to take care that no grand question upon which the quarrel finally rested ; but it may be satisfactoiy to show, more precisely than our historians have generally done, what was meant by the power of the militia, and what was the exact ground of dispute in this respect be- tween Charles I. and his Parliament. The military force which our ancient Constitution had placed in the jjistorical hands of its chief magistrate and sketch of the those deriving authority from furcem''EDg- him, may be classed under two descriptions : one principally designed to maintain the king's and the nation's rights abroad, the other to protect them at home from attack or disturbance. The first com- prehends the tenures by knight's service, which, according to the constant principles of a feudal monarchy, bound the owners of lands thus held from the crown to attend the king in war, within or without the realm, mounted and armed, during the regular term of service. Their own vassals were obliged by the same law to accompany them. But the feudal service was limited to forty days, beyond which time they could be re- tained only by their own consent, and at the king's expense. The military tenants were frequently called upon in expeditions against Scotland, and last of nil in that of 1640 ; but the short duration of their legal service rendered it, of course, nearly useless in Con- tinental warfare. Even when they formed the battle, or line of heavy-armed cavalry, it was necessary to complete the army by- recruits of foot-soldiers, whom feudal tenure did not regularly supply, and whose import- ance was soon made sensible by their skill in our national weapon, the bow. What was the extent of the king's lawful prerog- ative for two centuries or more after the conquest as to compelling any of his sub- jects to serve him in foreign war, independ- ently of the obligations of tenure, is a ques- tion scarcely to be answered ; since, know- ing so imperfectly the boundaries of Con- soldiers be raised, nor any castles or arms given up, wilhoid his majesty's pleasure, sigriificd by both houses of Parliament." — Commons' Journals. Pari. Hist, 1035. The Lords at the time refused to con- cur in this declaration, which was afterward changed into the ordinance for the militia; but 32 peers sign- ed a protest, id., 1049, and the House not many days afterward came to an opposite vote, joining with the Commons in their demand of the miUtia. —Id., 1072, 1091. 310 CONSTITUTIONAL HISTORY OF ENOLAND [Chap. IX. stitutional law in that period, we have little to guide us but precedents ; and precedents, in such times, are apt to be much more records of power than of right. We find certainly several instances under Edward I. and Edward II., sometimes of proclama- tions to the sheriffs, directing them to notify to all persons of sufficient estate that they must hold themselves ready to attend the king whenever he should call on them, sometimes of commissions to particular per- sons in different counties, who are enjoined to choose and an-ay a competent number of horse and foot for the king's service.* But these levies being of course vexatious to the people, and contraiy, at least, to the spii'it of those immunities which, under the shadow of the Great Charter, they were entitled to enjoy, Edward III., on the pe- tition of his first Parliament, who judged that such compulsoiy sei-vice either was or ought to be rendered illegal, passed a re- markable act, with the simple brevity of those times : " That no man from hence- forth should be charged to arm himself otherwise than he was wont in the time of his progenitors, the kings of England ; and that no man be compelled to go out of his shire but where necessity requireth, and sudden coming of sti-ange enemies into the realm ; and then it shall be done as hath been used in times past for the defense of the realm. "f This statute, by no means of inconsidera- ble importance in our Constitutional histoiy% put a stop for some ages to these arbiti'ary conscriptions. But Edward had recourse to another means of levying men without bis own cost, by calling on the counties and principal towns to furnish a certain number of troops. Against this the Parliament pro- vided a remedy by an act in the twenty- fifth year of his reign : " That no man shall be consti-ained to find men at arms, hoblers, nor archers, other than those who hold by * Rymer, sub Edw. I. et 11., passim. Thus, in 1297, a writ to the sheriff of Yorkshire directs him to make known to all, qui habeut 20 libratas terras et reditus per ammm, tam illis qui nou tenent de nobis iu capite quam illis qui tenent, ut de equis et annis sibi provideaut et se probareut indllate ; ita quod sint prompti et parati ad veniendam ad nos et eundum cum propria persona nostra, pro defensione ipsorum et totius regni nostri proedicti, quandocuuque pro ipsis duxerimus detnandandum, ii., 86-1. t Stat. 1 Edw. III., c. 5. such service, if it be not by common con- sent and gi-ant in Parliament." Both these statutes were recited and confirmed in the fourth year of Henry IV.* The successful resistance thus made by Parliament appears to have produced the discontinuance of compulsoiy levies for for- eign warfare. Edward III. and his suc- cessors, in their long contention with France, resorted to the mode of recruiting by con- ti-acts with men of high rank or military estimation, whose influence was greater, probably, than that of the crown toward procuring voluntaiy enlistments. The pay of soldiers, which we find stipulated In such of those conti-acts as are extant, was ex- tremely high ; but it secured the service of a brave and vigorous yeomanry. Under the house of Tudor, in conformity to their more despotic scheme of government, the salutary enactments of fonner times came to be disregarded, Heniy VIII. and Eliza- beth sometimes compelling the counties to furnish soldiers ; and the prerogative of pressing men for militaiy seiTice, even out of the kingdom, having not only become as much established as undisputed usage could make it, but acquiring no slight degree of sanction by an act passed under Philip and Maiy, which, without repealing or advert- ing to the statutes of Edward III. and Hen- ry IV., recognizes, as it seems, the right of the crown to levy men for service in war, and imposes penalties on persons absenting themselves from musters commanded by the king's authority to be held for that pur- pose, f Clarendon, whose political heresies sprang in a gi'eat measure from his possess- ing but a very imperfect knowledge of our ancient Constitution, speaks of the act that declared the pressing of soldiers illegal, though exactl}' following, even in its lan- guage, that of Edward III., as conti-ary to the usage and custom of all times. It is scarcely, perhaps, necessaiy to ob- * 25 Edw. III., c. 8. 4 Hen. IV., c. 13. ' t 4 & 5 Philip and Marj-, c. 3. The Harleian manuscripts are the best authority for the practice of pressuig soldiers to ser\-e iu Ireland or else- where, and are full of instances. The Mouldys and Bnllcalfs were in frequent requisition. See vols. 309, 1926, 2219. and others. Thanks to Hum- phrey Wanley's diligence, the analysis of these papers in the catalosue will save the inquirer the trouble of reading-, or the mortification of finding he can not read, the tenible scrawl in which they aro generally written. Cha. I.— 1640-42.] FEOM HENRY VII. TO GEORGE II. 311 sen'e, that there had never been any regular army kept up in England. Henry VII. es- tablished the yeomen of the guard in 1485 solely for the defense of his person, and rather, perhaps, even at that time, to be considered as the king's domestic servants than as soldiers. Their number was at first fifty, and seems never to liave exceeded two hundred. A kind of regular troops, how- ever, chiefly accustomed to the use of ar- tillery, was maintained in the veiy few for- tified places where it was thought neces- sary or practicable to keep up the show of defense ; the Tower of London, Ports- mouth, the Castle of Dover, the Fort of Tilbuiy, and, before the union of the crowns, Berwick, and some other places on the Scottish border. I have met with very little as to the nature of these gnn-isons ; but their whole number must have been in- significant, and probably at no time equal to resist any serious attack. We must take care not to confound this strictly military force, serving, whether by virtue of tenure or engagement, whereso- ever it should be called, with that of a more domestic and defensive character, to which alone the name of militia was usually ap- plied. By the Anglo-Saxon laws, or, rather, by one of the primaiy and indispensable conditions of political society, every free- holder, if not every freeman, was bound to defend his countiy against hostile invasion. It appears that the alderman or earl, while those titles continued to imply the govern- ment of a county, was the proper com- mander of this militia. Henry II., in order to render it more effective in cases of emer- gency, and perhaps with a view to extend its service, enacted, bj' consent of Parlia- ment, that every freeman, according to the value of his estate or moveables, should hold himself constantly furnished with suitable arms and equipments.* By the statute of Winchester, in the thirteenth year of Ed- ward I., these provisions were enforced and extended. Eveiy man, between the ages of fifteen and sixty, was to be assessed, and eworn to keep armor according to the value of his lands and goods ; for fifteen pounds and upwird in rent, or forty marks in goods, a hauberk, an iron breastplate, a sword, a knife, and a horse ; for smaller property, * Wilkins'a Leges Anglo-Saxonicoe, p. 333. Lyt- tleton"s Henrj- II., iii., 354. less extensive arms. A view of this armor was to be taken twice in the year, by con- stables chosen in every hundred.* These regulations appear by the context of the whole statute to have more immediate re- gard to the preservation of internal peace, by suppressing tumult sand an-esting rob- bers, than to the actual defense of tlie realm against hostile invasion ; a danger not at that time very imminent. The sheriff', as chief consei-vator of public peace and min- ister of the law, had always possessed the right of siunmoning the posse comitates ; that is, of calhng on aU the king's liege sub- jects within his jurisdiction for assistance, in case of any rebellion or tumultuous rising, or when bands of robbers infested the pub- lic ways, or when, as occuiTed very fre- quently, the execution of legal process was forcibly obsti-ucted. It seems to have been the policy of that wise prince, to whom we are indebted for so many signal improve- ments in our law, to give a more effective and permanent energy to this power of the sheriff'. The provisions, however, of the statute of Winchester, so far as tliey obliged eveiy proprietor to possess suitable arms, were of course applicable to national de- fense. In seasons of public danger, threat- ening invasion from the side of Scotland or France, it became customary to issue com- missions of array, empowering those to whom they were addressed to muster and ti'ain all men capable of bearing arms in tho counties to which their commission extend- ed, and hold them in readiness to defend the kingdom. The earliest of these com- missions that I find in Rymer is of 1324, and the latest of 1557. The obligation of keeping sufficient arms according to each man's estate was pre- served by a statute of Philip and Mary, which made some changes in tho rate and proportion, as well as the kind of arms.f But these ancient provisions were abro- gated by James in his first Parliament.f * Stat. 13 Edw. I. t 5 Philip and Marj-, c. 2. t 1 Jac, c. 25, ^ 46. An order of covmcil in Dec, 1638, that everj- man having lands of inheritance to the clear yearly value of £200 should be chargea- ble to furnish a light-liorseman, every one of £300 estate to furnish a lance, at the discretion of the lord lieutenant, was unwaiTanted by any existing law, and must be reckoned among the violent stretches of prerogative at that time. — Rushw. Abr., ii., 500. 312 CONSTITUTIONAL HISTORY OF EN<3LAND [Chap. IX- The nation, become forever secure from in vasion on the quarter where the militia serv- ice had been most required, and freed from the other dangers which had menaced the throne of Elizabeth, gladly saw itself re- leased from an expensive obligation. The government again may be presumed to have thought that weapons of offense were safer in its hands than in those of its subjects. Magazines of arms were formed in different places, and generally in each county but, if we may reason from the absence of doc- uments, there was little regard to military array and preparation, save that the citizens of London mustered their trained bands on holydays, an institution that is said to have sprung out of a voluntaiy association, called the ai'tillery company, formed in the reign of Henry VIII. for the encouragement of archery, and acquiring a more respectable and martial character at the time of the Spanish armada. f The power of calling into arms, and mus- tering the population of each county, given in earlier times to the sheriff or justices of the peace, or to special commissioners of array, began to be intrasted, in the reign of Mary, to a new officer, entitled the lord- lieutenant. This was usually a peer, or at least a gentleman of large estate within the county, whose office gave him the com- mand of the militia, and rendered him the chief vicegerent of his sovereign, responsible for the maintenance of public order. This institution may be considered as a revival of the ancient local earldom ; and it certainly took away from the sheriff a gi-eat part of the dignity and importance which he had acquired since the discontinuance of that office ; yet the lord-lieutenant has an au- thority so peculiarly militaiy, that it does not in any degree control the civil power of tlie sheriff as the executive minister of the law. In certain cases, such as a tumultuous obstmction of legal authority, each might be said to possess an equal power, the sheriff being still undoubtedly competent to call out the posse comitates in order to enforce obe- dience. Practically, however, in all serious circumstances, the lord-lieutenant has al- ways been reckoned the efficient and re- sponsible guardian of public tranquillity. * Rymer, xix., 310. t Grose's Military Antiquities, i., 150. The word artillery was used in that age for the long bow. From an attentive consideration of this sketch of our military law, it will strike the reader that the principal question to be de- temiined was, whether, in time of peace, without pretext of danger of invasion, there were any legal authority that could direct the mustering and training to arms of the able-bodied men in each county, usually de- nominated the militia. If the power ex- isted at all, it manifestly resided in the king. The notion that either or both houses of Pai-liament, who possess no portion of ex- ecutive authority, could take on themselves one of its most peculiar and important func- tions, was so preposterous, that we can scarcely give credit to the sincerity of any reasonable person who advanced it. In the imminent peril of hostile invasion, in the case of intestine rebellion, there seems to be no room for doubt, that the king, who could call on his subjects to bear arms for their countiy and laws, could oblige them to that necessaiy discipline and previous training, without which their service would be unavailing. It might also be urged that he was the proper judge of the danger ; but that, in a season of undeniable tranquillity, he could withdraw his subjects from their necessaiy labors against their consent, even for the important end of keeping up the use of military discipline, is what, with our present sense of the limitations of royal power, it might be difficult to affirm. The precedents under Heniy VIII. and Eliza- beth were numerous ; but not to mention that many, perhaps most of these, might come under the class of preparations against invasion, where the royal authority was not to be doubted, they could be no stronger than those other precedents for pressing and mustering soldiers, which had been declared illegal. There were at least so mixny points uncertain, and some wherein the prerogative was plainly deficient, such as the right of marching the militia out of their own counties, taken away, if it had before existed, by the act just passed against pressing soldiei's, that the concurrence of the whole Legislature seemed requisite to place so essential a matter as the public de- fense on a secure and permanent footing.* * Whitelock maintained, both on this occasion and at the treaty of Uxbridge, that the power of the militia resided in the king and two Houses I jointly, p. 5.J, 129. This, tliough not very well Cha. I— 1640-42.] FROM HENRY VII. TO GEORGE II. 313 The nini of tlie llou.ses, however, in the bill for resfulating the militia, pre- Encioach- , ° ^, f . , mentsofthe sented to Charlcs in li ebruary. Parliament, jg^.^^ j^j^ refusal tO pasS which led by rapid steps to the civil war, was not so much to remove those uncer- tainties by a general provision (for in effect they left them much as before) as to place the command of the sword in the hands of those they could control ; nominating in the bill the lords-lieutenant of eveiy county, who were to obey the orders of the two Houses, and to be in-emovable by the king for two years. No one can pretend that this was not an encroaciiment on his pre- rogative.* It can only find a justification in the precarious condition, as the Com- mons asserted it to be, of tliose liberties they had so recently obtained, in their just persuasion of the king's insincerity, and in the demonstmtions he had already made of an intention to win back his authority at the sword's point.f But it is equitable, on the other hand, to observe, that the Commons had by no means greater reason to distrust the faith of Charles, than he had to antici- pate fresh assaults from them on the power he had inherited, on the form of religion which alone he thought lawful, on the coun- selors who had served him most faithfully, and on the nearest of his domestic ties. If the right of self-defense could be urged by Parliament for this demand of the militia, must we not admit that a similar plea was equally valid for the king's refusal ? How- ever arbitrary and violent the previous gov- ernment of Charles may have been, how- expresseil, can only mean that it required an act of Parliament to determine and rea^ulate it. * See the list of those recommended, Pari. Hist., 1083. Some of these were Royalists; but, on the whole, three fourths of the military force of Eng- land would have been in the liands of persons who, though men of rank, and attached to the monarchy, had given Charles no reason to hope that they would decline to obey any order which the Parliament might issue, however derogatory or displeasing to himself. t " When this bill had been with much ado ac- cepted, and first read, there were few men who imagined it would ever receive further counte- nance ; but now there were very few who did not believe it to be a very necessary provision for the peace and safety of the kingdom. So great an impression had the late proceedings made upon them, that with little opposition it passed the Commons, and was sent up to the Lords." — Clar- endon, ii., 180. ever disputable his sincerity at present, it is vain to deny that he had made the most valuable concessions, and such as had cost him very dear. He had torn away from his diadem what all monarchs would deem its choicest jewel, that high attribute of un- controllable power, by which their flatterers have in all ages told them they resemble and represent the Divinity. He had seen those whose counsels he had best approved rewarded with exile or imprisonment, and had incurred the deep reproacli of his own heart by the sacrifice of Strafford. He had just now given a reluctant assent to the ex- tinction of one estate of Parliament, by the bill excluding bishops from the House of Peers. Even in the business of the militia, he would have consented to nominate the persons recommended to him as lieutenants, by commissions revocable at his pleasure, or would have passed the bill rendering them iiTemovable for one year, provided they might receive their orders from him- self and the two Houses jointly.* It was not unreasonable for the king to pause at the critical moment which was to make all future denial nugatoiy, and inquire whether the prevailing majority designed to leave him what they had not taken away. But he was not long kept in uncer- Nineteen taintyupon this score. The nine- prop^sniuns. teen propositions tendered to him at York in the beginning of June, and founded u])on addresses and declarations of a considerably earlier date.f went to abrogate in spirit the * Clarendon, ii., 375. Pari. Hist., 1077, 1106, &c. It may be added, that the militia bill, as originally tendered to tlie king by the two Houses, was ushered in by a preamble asserting that there had been a most dangerous and desperate design on the House of Commons, the effect of the bloody counsels of the papists, and other ill-affected per- sons, who had already raised a rebellion in Ire- land.-— C'lar., p. 336. Surely he could not have passed this, especially the last allusion, without recording his own absolute dishonor; hut it must he admitted, that on the king's ohjection they omitted this preamble, and also materially limited the powers of the lords-Iieutepant to be appointed under the bill. t A declaration of the grievances of the king- dom, and the remedies proposed, April 1, may be found in the Parliamentary Historj-, p. 115.5. But that work does not notice that it had passed the Commons on Feb. 19, before the king had begun to move toward the North. — Commons' Jounials. It seem,? not to have pleased the House of Lords, who postponed its consideration, and was much 314 COXSTITUTIOXAL HISTORY OF EXQLAXD [Chap. IX- whole existing Constitution, and were, in truth, so far beyond what the king could be expected to giunt, that terms more intolera- ble were scarcely proposed to him in his greatest difficulties, not at Uxbridge, nor at Newcastle, nor even at Newport. These famous propositions import that the privy council and officers of state should be approved by Parliament, and take such an oath as the two Houses should prescribe ; that during the iuteiTals of Parliament, no vacancy in the council should be supplied without the assent of the major part, sub- ject to the futm-e sanction of the two Houses ; that the education and mairiages of the king's children should be under Pai-- liamentary control; the votes of popish peei's be taken away ; the church government and ; Liturgy be reformed as both Hovises should advise ; the militia and all fortified jjlaces put in such hands as Parliament should ap- prove ; finally, that the king should pass a bill for restraining all peers to be made in future from sitting in Parliament, unless they be admitted with the consent of both Houses. A few more laudable provisions, such as that the judges should hold their offices during good behavior, which the king had long since promised,* were mixed up with these strange demands. Even had the king complied with such unconstitutional requisitions, there was one behind, which, though they had not advanced it on this occasion, was not likely to be forgotten. It had been asserted by the House of Com- mons in their last remonstrance, that, on a right constnaction of the old coronation oath, the king was bound to assent to all bills which the two houses of Parhament should offer. f It has been said by some that this more grievous to the king than the nineteen prop- ositions themselves. One proposal was to re- move all papists from about the queen ; that is, to deprive her of the exercise of her religion, guar- antied by her marriage contract. To this objec- tion Pym replied, that the House of Commons had only to consider the law of God and the law of the land ; that they must resist idolatry, lest they incur the divine wrath, and must see the laws of this king- dom executed ; that the public faith is less than that they owe to God, against which no conti^act can oblige, neither can any bind us against the law of the kingdom.— Pari. Hist., 1162. * Id., 702. t Clarendon, p. 452. Upon this passage iu the Remonstrance a division took place, when it was carried by 103 to 61.— Pari. Hist.. 1302. The words in the old form of coronation oath, as presers-ed in a bill of Parliament under Henry IV., concerning was actually the Constitution of Scotland, where the crown possessed a counterbalan- cing influence ; but such a doctrine wag ia this country as repugnant to the whole his- tory of our laws, as it was incompatible with the subsistence of the monarchy in any thing more than a nominal pre-eminence. In weighing the merits of this great con- test, in judging whether a thor- „f oushly upright and enlightened the respective ,\ ^ , ,. , claims of the man would rather have listed un- two parties to der the royal or Parliamentary ^"pp""^- standard, there are two political postulates, the concession of which we may require : one, that civU war is such a calamity as nothing but the most indispensable necessity can. authorize any party to bring on ; the other, that the mixed government of Eng- land by king. Lords, and Commons, was to be maintained in preference to any other form of polity. The first of these can hardly be disputed ; and though the denial of the second would certainly involve no absurdity, yet it maj' justly be assumed where both parties avowed their adherence to it as a common principle. Such as prefer a des- potic or a Republican form of government, will generally, without much further in- quiry, have made their election between Charles the Fhst and the Parliament. We do not argue from the creed of the English Constitution to those who have abandoned its communion. There was so much in the conduct and circumstances of both parties, in the Faults of year 1642, to excite disapprobation which this grammatico-political contention arose, are the following : " Concedis justas leges et con- suetudines esse teuendas, et promittis per te eas esse protegendas, et ad honorem Dei corroboran- das, quas vulsiis elegerit, secundum vires tuas V It was maintained by one side that elcqerit should be construed in the future tense, while the other contended for the prsterperfect. Bat even if the former were right as to the point of Latin con- struction, though consuetudines seems naturally to imply a past tense, I should by no means admit the sh ange inference that the king was bound to sanction all laws proposed to him. His own as- sent is involved in the expression, " quas valgus elegerit," which was introduced, on the hypothe- sis of the word being in the future tense, as a se- curity against his legislation without consent of the people in Parliament. The English coronation oath which Charles had taken excludes the fu- ture : Sir, will you grant to hold and keep the laws and rightful customs Khich the commonalty of this your kingdom have ? Cha. I.— 1640-42.] FROM HENRY VII. TO GEORGE 11. 315 and disti'ust, that a Avise and good man could hardly unite cordially with either of them. On the one hand, he would enter- tain little doubt ot*the king's desire to over- tlirow by force or stratagem whatever had been effected in Parliament, and to estab- lish a plenaiy despotism ; his arbitrary tem- per, his known principles of government, the natural sense of wounded pride and honor, the instigations of a haughty woman, the so- licitations of favorites, the promises of ambi- tious men, were all at work to render his new position as a constitutional sovereign, even if unaccompanied by fresh indignities and en- croachments, too grievous and mortifying to be endured. He had already tampered in a conspiracy to overawe, if not to dis- perse, the Parliament ; he had probably ob- tained large promises, though very little to be ti'usted, from several of the Presbyterian leaders in Scotland during his residence there in the summer of 1641 ; he had at- tempted to recover his ascendency by a sud- den blow in the affair of the five members ; he had sent the queen out of England, fur- nished with the crown jewels, for no other probable end than to raise men and procure arms in foreign countries ;* he was now about to take the field with an army, com- posed in part of young gentlemen disdainful of a Puritan faction that censured their li- cense, and of those soldiers of fortune, reck- less of public principle, and averse to civil control, whom the war in Germany had trained ; in part of the Catholics, a wealthy and active body, devoted to the crown, from wliich alone they had experienced justice or humanity, and from whose favor and grati- tude they now expected the most splendid returns. Upon neither of these parties could a lover of his countiy and her liberties look without alarm ; and though he might derive more hope from those better spirits, who had withstood the prerogative in its exorbitance, as they now sustained it in its decline, yet it could not be easy to foretell that they would preserve sufficient influence to keep steady the balance of power in the * See what is said as to this by P. Orleans, iii., 87, and by Madame de Motteville, i., 268. Her in- tended journey to Spa, in July, 1641, wliich was given up on the reiuoustrance of Parliament, is highly suspicious. The House, it appeai-s, had re- ceived even then information that the crown jew- els were to be carried away. — Xalson, ii., 391. contingency of any decisive success of the royal arms. But, on the other hand, the House of Commons presented still less favorable prospects. We should not, indeed, judge over severely some acts of a virtuous indig- nation in the first moments of victoiy,* or those heats of debate, without some excess- es of which a popular assembly is in danger of falling into the opposite extreme of phleg- matic security ; but, after eveiy allowance has been made, he must bring very heated passions to the records of those times who does not perceive in the conduct of that body a series of glaring violations, not only of positive and constitutional, but of those higher principles which are paramount to all immediate policy. Witness the ordi- nance for disarming recusants passed by both Houses in August, 1641, and that in November, authorizing the Earl of Leices- ter to raise men for the defense of Ireland without warrant under the great seal — both manifest encroachments on the executive power ;f and the enormous extension of * The impeachments of Lord Finch and of Judge Berkley for high treason are at least as little justi- fiable hi point of law as that of Stratford. Yet, be- cause the former of these was moved by Lord Falkland, Clarendon is so far from objecting to it, that he imputes as a fault to the Parliamentary leaders their lukewannness in this prosecution, and insinuates that they were desirous to save Finch. See especially the new edition of Claren- don, vol. i.. Appendix. But they might reasonably think that Finch was not of sufficient importance to divert their attention from the grand apostate, whom they were determined to punisli. Finch fled to Holland ; so that then it would have been absurd to take much trouble about his impeach- ment: Falkland, however, opened it to the Lords, 14th of Jan., 1641, in a speech containing fuU as many extravagant propositions as any of St. John's. Berkley, besides his forwardness about ship mou- ey, had been notorious for subserviency to the pre- rogative. The House sent the usher of the black rod to the Court of King's Bench, while the judges were sitting, who took him away to prison ; " which sti'uck a gi'eat teiTor," says Whitelock, " in the rest of his brethren then sitting in Westminster Hall, and in all his profession." The impeachment against Berkley for high treason ended in his pay- ing a fine of £10,000. But what appears strange and unjustifiable is. that the Houses sufi'ered him to sit for some terms as a judge with this impeach- ment over his head. The only excuse fur this is, that there were a great many vacancies on that bench. t Journals, Aug. 30 and Nov. 9. It may be urg- ed in behalf of these ordmances, that the king had 316 CONSTITUTIONAL HISTORY OF ENGLAND [Chap. IX. privilege, under -which every person accus- ' ed on the slightest testimony of disparaging ' their proceedings, or even of introducing new-fangled ceremonies in the Church, a matter wholly out of their cognizance, was dragged before them as a delinquent, and lodged in their prison.* Witness the out- rageous attempts to intimidate the minority of their own body in the commitment of Mr. Palmer, and afterward of Sir Ralph Hopton, to the Tower, for such language ' used in debate as would not have excited any obsei-vation in ordinary times ; their continual encroachments on the rights and privileges of the Lords, as in their intima- tion that, if bills thought by them necessary for the public good should fall in the Upper House, they must join with the minority of the Lords in representing the same to the king;f or in the impeachment of the gone into Scotland against the wish of the two Houses, and after refusing to appoint a custos rezni at their request. But if the exigency of the case might justify, under those circumstances, the assumption of an irregular power, it ought to have been limited to the period of the sovereign's ab- sence. * Pari. Hist., 678, et alibi. Journals, passim. Clarendon, i., 475. sa5-s this began to pass all bounds after the act rendering them indissoluble. " It had never," he says, " been attempted before this Parliament to commit any one to prison, ex- cept for some apparent breach of privilege, such as the arrest of one of their members, or the like." Instances of this, however, had occurred before, of which I have mentioned in another place the gross- est, that of Floyd, in 1621. The Lords, in March, 1642, condemned one Sandford, a tailor, for cursing the Parliament, to be kept at work in Bridewell during his life, besides some minor inflictions. — Rushworth. A strange order was made by the Commons, Dec. 10, 1641, that Sir William Earl ha\'iug given information of some dangerous words spoken by certain persons, the speaker shall issue a warrant to apprehend stick persons as Sir Will- iam Earl should point out. t The entry of this in the Journals is too char- acteristic of the tone assumed in the Commons to be omitted. " This committee (after naming some of the warmest men) is appointed to prepare heads for a conference with the Lords, and to acquaint them what bills this House hath passed and sent lip to their lordships, which much concern the safe- ty of the kingdom, but have had no consent of their lordships unto them ; and that, this House being the representative bod}' of the whole kingdom, and their lordships being but as particular persons, and coming to Parliament in a particular capacity, that if they shall not be pleased to consent to the pass- ing of those acts and others necessan.- to the pres- ervation and safety of the kingdom, that then this House, together with such of the lords that are ' Duke of Richmond for words, and those of I the most trifling nature, spoken in the Up- per House ;* their despotic violation of the rights of the people, in* imprisoning those who presented or prepared respectful peti- tions in behalf of the established Constitu- tion,f while they encouraged those of a tu- multuous multitude at their bar in favor of innovation ;t their usurpation at once of the judicial and legislative powers in all that ' related to the Church, particularly by their committee for scandalous ministers, under which denomination, adding reproach to in- jury, they subjected all who did not reach the standard of Puritan perfection to con- tumely and vexation, and ultimately to ex- more sensible of the safety of the kingdom, may join together and represent the same unto his majesty." This was on December 3, 1641, before the argument from necessity could be pretended, and evidently contains the germ of the resolution of February, 1649, that the House of Lords was useless. The resolution was moved by Mr. Pym ; and on Mr. Godolphin's objecting, very sensibly, that if they went to the king with the lesser part of the lords, the greater part of the lords might go to the king with the lesser part of them, he was com- manded to withdraw (Vemey MS.) ; and an order appears on the Journals, that on Tuesday next the House would take into consideration the oS'ense now given by words spoken by Mr. Godolphin. Nothing further, however, seems to have taken place. * This was carried Jan. 27, 1642, by a majority of 223 to 122, the largest number, I think, that voted for any question during the Parliament. Richmond was an eager courtier, and perhaps an enemy to the Constitution, which may account for the unusual majority in favor of his impeachment, but can not justify it. He had merely said, on a proposition to adjourn, "Why should we not ad- journ for six mouths V t Pari. Hist., 1147, 1150, 1188. Clarendon, ii., 284, 346. X Clarendon, 322. Among other petitions pre- sented at this rime, the noble author inserts one from the porters of London. Mr. Brodie asserts of this, that " it is nowhere to be found or alluded to, so far as I recollect, except in Clarendon's His- tory ; and I have no hesitation in pronouncing it a forsery by that author, to disgrace the petirions which so galled him and his party. The Journals of the Commons give an account of everj' peririon ; and I have gone over them with the vtmost care, in order to ascertain whether such a peririon ever was presented, and yet can not discover a trace of it" (iii., 306). This writer is here too precipitate. No sensible man will believe Clarendon to have committed so foolish and useless a forgery ; and this perition is fully noticed, though not inserted at length, in the Journals of February 3d. CHA. I.— 1640-42.] FROM HENRY VII. TO GEORGE II. 317 pulsion from their lawful property.* Wit- ness the impeachment of the twelve bish- ops for treason, on account of their protes- tation against all that should be done in the House of Lords during their compelled ab- sence through fear of the populace ; a pro- test not, perhaps, entirely well expressed, but abundantly justifiable in its argument by the plainest principles of law.f These great abuses of power, becoming daily more fi-equent as they became less excusable, would make a sober man hesitate to sup- port them in a civil war, wherein their suc- cess must not only consummate the destruc- tion of the crown, the Church, and the peer- age, but expose all who had dissented from their proceedings, as it ultimately happened, to an oppression less severe, perliaps, but far more sweeping, than that which had rendered the Star Chamber odious. But it may reasonably, also, be doubted whether, in staking their own cause on the perilous contingencies of war, the House of Commons did not expose the liberties for which they professedly were contend- ing to a far greater risk than they could have incurred even by peace with an insidious court ; for let any one ask himself what would have been the condition of the Par- liament if, by the extension of that panic which in fact seized upon several regiments, or by any of those countless accidents which determine the fate of battles, the king had * Nalson. ii., 234, 245. t The bishops had so few friends iu the House of Commons, that in the debate arising out of this protest, all agreed that they should be charged with treason except one gentleman, who said he thought them only mad, and proposed that they should be sent to Bedlam instead of the Tower. Even Clarendon bears rather hard on the protest, chiefly, as is evident, because it originated with Williams. In fact, several of these prelates had not courage to stand by what they had done, and made trivial apologies. — Pari. Hist., 996. Whether the violence was such as to form a complete justifi- cation for their absenting themselves, is a question of fact which we can not well determine. Three bishops continued at their posts, and voted against the bill for removing them from the House of Lords. See a passage from Hall's Hard Measure, in Words- worth's Eccles. Biogr., v., 317. The king always entertained a notion that this act was null iu itself; and in one of his proclamations from York, not veiy judiciously declares his intention to preserve the privileges of the three estates of Parliament. The Lords admitted the twelve bishops to bail; but, with their usual pusillanimity, recommitted them on the Commons' expostulation. — Pari. Hist., 1092. wholly defeated their army at Edgehill? Is it not probable, nay, in such a supposi- tion, almost demonstrable, that in those first days of the civil war, before the Parliament had time to discover the extent of its own resources, he would have found no obstacle to his triumphal entry into London ? And, in such circumstances, amid the defection of the timid and lukewarm, the consterna- tion of the brawling multitude, and the ex- ultation of his victorious ti'oops, would tlie triennial act itself, or tliose other statutes which he had veiy reluctantly conceded, have stood secure ? Or, if we believe that the constitutional supporters of his throne, the Hertfords, the Falldands, the South- amptons, the Spencers, would still have had sufficient influence to shield from violent hands that palladium which they had assist- ed to place in the building, can there be a stronger argument against the necessity of taking up arms for the defense of liberties, which, even in the contingency of defeat, could not have been subverted ? There Avere many, indeed, at that time, as there have been ever since, who, admit- ting all the calamities incident to civil war, of which this countiy reaped the bitter fruits for twentj' years, denied entirely that the Parliament went beyond the necessary precautions for self-defense, and laid the whole guilt of the aggression at the king's door. He had given, it was said, so many proofs of a determination to have recourse to arms, he had displayed so insidious a hos- tility to the pi'ivileges of Parliament, that, if he should be quietly allowed to choose and train soldiers, under the name of a militia, through hired seiTants of his own nomina- tion, the people might find themselves ei- ther robbed of their liberties by surprise, or compelled to struggle for them in very un- favorable circumstances. The Commons, with more loyal respect, perhajis, than pol- icy, had opposed no obstacle to his deliber- ate journey toward the North, which they could have easily prevented,* though well aware that he had no other aim but to col- lect an ai'my ; was it more than ordinary * May, p. 187, insinuates that the civil war should have been prevented by more vigorous measures on the part of the Parliament ; and it miglit probably have been in their powqr to have secured the king's person before he i-eached York ; but the majority were not ripe for such violent pro- ceedings. 318 CONSTITUTIONAL HISTORY OF EN(JLAND [Chap. IX. pnidence to secure the fortified town of Hull with its magazine of arms from his grasp, and to muster the militia in each county under the command of lieutenants in whom they could confide, and to whom, from their rank and personal character, he could frame no just objection ? These considerations are doubtless not without weight, and should restrain such as may not think them sufficient from too strongly censuring those who, deeming that either civil liberty or the ancient Constitu- tion nuist be sacrificed, persisted in depriv- ing Charles the First of eveiy power, which, though pertaining to a king of England, he could not be trusted to exercise. We are, in truth, after a lapse of ages, often able to form a better judgment of the course that ought to have been pursued in political emer- gencies than those who stood nearest to the scene. Not only we have our knowledge of the event to guide and correct our imag- inary determinations, but we are free from those fallacious rumors, those pretended se- crets, those imperfect and illusive views, those personal prepossessions, which in ev- ery age warp the political conduct of the most well-meaning. The characters of in- dividuals, so fi-equently misrepresented by flatteiy or party rage, stand out to us re- vealed by the tenor of their entire lives, or by the comparison of historical anecdotes, and that more authentic information which is resei-ved for posterity. Looking as it were from an eminence, we can take a more comprehensive range, and class better the objects before us in their due propor- tions and in their beaiings on one another. | It is not easy for us even now to decide, keeping in view the maintenance of the en- tire Constitution, from which paity in the | civil war greater mischief was to be appre- hended ; but the election was, I am per- suaded, still more difficult to be made by cotemporai'ies. No one, at least, who has given any time to the studj"- of that histoiy, will deny that among those who fought in opposite battalions at Edgehill and New- bury, or voted in the opposite Parliaments of Westminster and Oxford, there were many who thought much alike on general theories of prerogative and j)rivilege, divid- ed only, perhaps, by some casual prejudi- [ ces, Avhich had led these to look with great- er disti-ust on courtly insidiousness, and those with gi-eater indignation at popuJar violence. We can not believe that Falkland and Cole- pepper differed gi-eatly in their constitution- al principles from Whitelock and I^ierpoint, or that Hertford and Southampton were less friends to a limited monarchy than Es- sex and Northumberland. There is, however, another argument sometimes alleged of late, in justification of the continued attacks on the king's authori- ty, which is the most specious, as it seems to appeal to what are now denominated the Whig principles of the Constitution. It has been said that, sensible of the mal-adminis- tration the nation had endured for so many years (which, if the king himself were to be deemed by constitutional fiction ignorant of it, must at least be imputed to evil ad- visers), the House of Commons sought only that security which, as long as a sound spir- it continues to actuate its members, it must ever require — the appointment of ministers in whose fidelity to the public liberties it could better confide ; that by carrying frank- ly into effect those counsels which he had unwisely abandoned upon the Earl of Bed- ford's death, and bestowing the responsible offices of the state on men approved for pati-iotism, he would both have disarmed the jealousy of his subjects and insured his own prerogative, which no ministers are prone to impair. Those who are sti'uck by these consider- ations may not, perhaps, have sufficiently re- flected on the changes which the king had actually made in his administi'ation since the beginning of the Parliament. Besides those already mentioned, Essex, HoUand, Say, and St. John, he had, in the autumn of 1641, conferred the post of secretaiy of state on Lord Falkland, and that of master of the rolls on Sir John Colepepper; both very prominent in the redress of grievances and punishment of delinquent ministers during the first part of the session, and whose at- tachment to the cause of Constitutional lib- erty there was no sort of reason to distrust. They were, indeed, in some points, 6f a dif- ferent way of thinking from Pym and Hamp- den, and had doubtless been chosen by the king on that account; but it seems rather beyond the legitimate boimds of Parliament- ary opposition to involve the kingdom "in civil war simply because the choice of the crown had not fallen on its leadei-s. The Cha. I.— 1640-42.] FROM HENRY VII. TO GEORGE II. 319 real misfortune was, that Charles did not rest in the advice of his own responsible ministers, against none of whom the House of Commons had any just cause of excep- tion. The theory of our Constitution in this respect was veiy ill established ; and, had it been more so, there are perhaps few sovereigns, especially in circumstances of so much novelty, who would altogether conform to it. But no appointment that he could have made from the pah'iotic bauds of Parliament would have furnished a se- curity against the intrigues of his bedcham- ber or the influence of the queen. The real problem that we have to re- solve as to the political justice of the civil war, is not the character, the past actions, or even the existing designs of Charles ; not even whether he had as justly forfeited his crown as his son was deemed to have done for less violence and less insincerity ; not even, I will add, whether the liberties of his subjects could have been absolutely se- cure under his government; but whether the risk attending his continuance upon the throne with the limited prerogatives of an English sovereign were gi-eat enough to counterbalance the miseries of protiacted civil war, the perils of defeat, and the no less perils, as experience showed, of victory. Those who adopt the words spoken by one of our greatest orators, and quoted by another, " There was ambition, there was sedition, thei-e was violence ; but no man shall persuade me that it was not the cause of liberty on one side, and of tyranny on the other," have for themselves decided this question.* But as I know (and the histoi-y of eighteen years is my witness) how little there was on one side of such liberty as a wise man would hold dear, so I am not yet convinced that the great body of the Royal- ists, the peers and gentiy of England, were combating for the sake of tyranny. I can not believe them to have so soon forgotten their almost unanimous discontent at the king's arbitraiy government in 1640, or their general concun-ence in the first salutaiy measures of the Parliament. I can not think that the temperate and constitutional language of the royal declarations and an- * These words are ascribed to Lord Chatham, in a speech of Mr. Grattan, according to Lord John Russell, in his Essay on the History of the EngUsli Government, p. 55. swers to the House of Commons in 1G42, known to have preceded from the pen of Hyde, and as superior to those on the op- posite side in argument as they were in elo- quence, was intended for the willing slaves of tyranny. I can not discover in tlie ex- treme reluctance of the Royalists to take up arms, and their constant eagerness for an accommodation (I speak not of mere sold- iers, but of the greater and more important portion of that party), that zeal for the king's re-establishment in all his abused preroga- tives which some connect with the very names of a Royalist or a Cavalier.* * Clarendon has several remarkable passages, chiefly toward the end of the fifth book of his His- tory, on the slowness and timidity of the Royalist party before the commencement of the civil war. The peers at York, forming, in fact, a majority of the Upper House, for there were nearly forty of them, displaj-ed much of this. Want of political courage was a characteristic of our aristocracy at this period, bravely as many behaved in the field. But I have no doubt that a real jealousy of the king's intentions had a considerable effect. They put forth a declaration, signed by all their hands, on the 15th of June, 1642, professing before God their full persuasion that tlie king had no de- sign to make war on the Parliament, and that they saw no color of preparations or counsels that might reasonably beget a belief of any such designs ; but that all his endeavors tended to the settlement of the Protestant religion, the just privileges of Par- liament, the liberty of the subject, &c. This was an ill-judged and even absurd i)ioce of hypocrisj-, calculated to degrade the subscribers, since the design of raising ti'oops was hardly concealed, and every part of the king's conduct since his arrival at York manifested it. The commission of an'ay, authorizing certain persons in each county to raise troojis, was in fact issued immediately after this declaration. It is rather mortifying to find Lord Falkland's name, not to mention others, in this list ; but he probably felt it impossible to refuse his signature without throwing discredit on the king ; and no man engaged in a party ever did, or ever can, act with absolute sincerity ; or, at least, he can be of no use to his friends if he does adhere to this uncompromising principle. The commission of aiTay was ill received by many of the king's friends, as not being conforma- ble to law. — Clai'endon, iii., 91. Certainly it was not so ; but it was justifiable as the means of op- posing the Parliament's ordinance for the militia, at least equally illegal. This, however, shows very strongly the cautious and constitutional tem- per of many of the Royalists, who could demur about the legality of a measure of necessity, since no other method of raising an army would have been free from similar exception. The same re- luctance to enter on the war was displayed in the propositions for peace, which the king, in conse- quence of his council's importuuitj", sent to the 320 CONSTITUTIONAL HISTOIIY OF ENGLAND [Chap. IX. It is well observed by Burnet, in answer to the vulgar notion that Cliaries I. was un- done by his concessions, that, but for his conce.s.sions, he would have had no party at all. This is, in fact, the secret of what seems to astonish the Parliamentary his- torian. May, of the powerful force that the king was enabled to raise, and the i)rotracted resistance he opposed. He had succeeded, according to tlie judgment of many real friends of the Constitution, in putting the House of Commons in tlie wrong. Law, justice, moderation, once ranged against him, had gone over to his banner. His arms might reasonably be called defensive if he had no other means of preserving himself from the condition, far worse than captivity, of a sovereign compelled to a sort of suicide upon his own honor and authority ; for, however it may bo alleged that a king is bound in conscience to sacrifice his power to the public will, yet it could hardly be in- excusable not to have practiced this disin- terested morality, especially while the voice of his people was by no means unequivo- cal, and while the niiijor part of one house of Parliament adhered openly to his cause.* It is, indeed, a question perfectly dis- tinguishable from that of the absti-act jus- tice of the king's cause, whether he did not too readily abandon his post as a constitu- tional head of the Parliament ; whether, with the gi-eater part of the peers, and a very considerable minority in the Com- mons, resisting in their i)laccs at Westmin- ster all violent encroachments on his rights, he ought not rather to have sometimes per- sisted in a temperate though firm assertion of them, sometimes had recourse to com- promise and gracious concession, instead of calling away so many of his adherents to join his arms as left neither numbers nor credit with those who remained. There is a remarkable passage in Lord Clarendon's life, not to quote Whitelock and other writ- two Houses, through the Earl of Southampton, just before he raised his standard at Nottingham. * According to a hst made by the House of Lords, May 25, 1642, tlie peers with the king at York were thirty two ; those who remained at Westminster, forty-two. But of the latter, more than ten joined the others hefore the commence- ment of the war, and five or six afterward ; two or three of those at York returned. During the war there were at the outside thirty peers who sat in the Parliament. ers less favorable to Charles, where he in- timates his own opinion that the king would have had a fair hope of withstanding the more violent faction, if, after the queen's embarkation for Holland in Februarj-, 1642, he had returned to Whitehall ; admitting, at the same time, the hazards and incon- veniences to which this course was liable.* That he resolved on trying the foitune of arms, his noble historian insinuates to have been the effect of the queen's influence, with whom, before her departure, he had concerted his future proceedings. Yet, notwithstanding the deference owing to co- temporary opinions, I can not but suspect that Clarendon has, in this instance as in some other passages, attached too great an importance to particular individuals, meas- uring them rather by their rank in the state than by that capacity and energy of mind which, in the leveling hour of revolution, are the only real pledges of poUtical influ- ence. He thought it of the utmost conse- quence to the king that he should gain over the Earls of Essex and Northumberland, both, or at least the former, wavering be- tween the two parties, though voting en- tirely with the Commons. Certainly the king's situation required every aid, and his repulsive hardness toward all who had ever given him offense displayed an obstinate, un- conciliating character, which deprived him of some support he might have received. But the subsequent history of these two celebrated earls, and, indeed, of all the mod- erate adherents to the Parliament, will hardly lead us to believe that they could have afforded the king any protection. Let us suppose that he had returned to White- hall instead of proceeding toward the North. It is evident that he must either have passed the bill for the militia, or seen the ordi- nances of both Houses cairied into effect without his consent. He must have con- sented to the abolition of Episcopacy, or at least have come into some compromise which would have left the bishops hardly a shadow of their jurisdiction and pre-emi- nence. He must have driven from his per- son those whom he best loved and trusted. He would have found it impossible to see again the queen, without awakening dis- trust and bringing insult on them both. The * Life of Clarendon, p. 56. Cha. L— 1642-49.] FROM HENRY V: 11. TO GEORGE II. 321 Royalist minority of Parliament, however considerable in numbers, was lukewarm and faint-liearted. That thej^ should have gained strength so as to keep a permanent superi- ority over their adversaries, led as they were by statesmen so bold and profound as Hamp- den, Pyra, St. John, Cromwell, and A-^ane, is what, from the experience of the last twelve months, it was unreasonable to an- ticipate. But, even if the Commons had been more favorably inclined, it would not have been in their power to calm the mighty waters that had been moved from their depths. They had permitted tlie popu- lace to mingle in thoir discussions, testifying pleasure at its paltry applause, and en- couraging its tumultuous aggi'essions on the minority of the Legislature. What else could they expect than that, so soon as they ceased to satisfy the city apprentices, or the trained bands raised under their militia bill, they must submit to that physical strength which is the ultimate arbiter of political contentions ? Thus, with evil auspices, with much peril of despotism on the one hand, with more of anarchy on the other, amid the apprehen- sions and sorrows of good men, the civil war commenced in the summer of 1642. I might now, perhaps, pass over the period that intervened, until the restoration of Charles II., as not strictly belonging to a work which imdertakes to relate the prog- ress of the English Constitution; but this would have loft a sort of chasm that might disappoint the reader ; and as I have al- ready not wholly excluded our more gen- eral political history, without a knowledge of which the laws and government of any people must be unintelligible, it will prob- ably not be deemed an unnecessaiy digres- sion if I devote one chapter to the most interesting and remarkable portion of Brit- ish story. CHAPTER X. FROM THE BREAKING OUT OP THE CIVIL WAR TO THE RESTORATION. PART I. Success of the King in the first Part of the War. — Eftbrts by the moderate Party for Peace. — Aft'air at Brentford. — Treaty of Oxford. — Im- peachment of the dueen. — Waller's Plot. — Se- cession of some Peers to the King's (inarters. — Their Treatment there impolitic. — The anti- pacific Party gain the Ascendant at Westmin- ster.— The Parliament makes a new Great Seal, and takes the Covenant. — Persecution of the Clergy who refuse it. — Impeachment and Exe- cution of Laud. — Decline of the King's Affairs in 1644. — Factions at Oxford. — Royalist Lords and Commoners summoned to that City. — Treaty of Uxbridge. — Impossibility of Agi'eement. — The Parliament insist on unreasonable Terms. — Miseries of the War. — Essex and Manchester suspected of Lukewammess. — Self-denying Or- | dinance. — Battle of Naseby. — Desperate Condi- tion of the King's Affairs. — He throws himself into the Hands of the Scots. — His Struggles to preserve Episcopacy, against the Advice of the Clueen and Others. — Bad Conduct of the dueen. — Publication of Letters taken at Naseby. — Discoverj- of Glamorgan's Treat}'. — King deliv- ered up by the Scots. — Growth of the Independ- ents and Republicans. — Opposition to the Pres- byterian Government. — Toleration. — Intrigues of tlie Amiy with the King. — His Person seized. — The Pai'liament yield to the Anny. — Mysteri- ous Conduct of Cromwell. — Imprudent Hopes of the Kine. — He rejects the Proposals of the X Ai-my. — His Flight from Hampton Court. — Alanuing Votes against him. — Scots' Invasion. — The Presbyterians regain the Ascendant. — Treaty of Newport. — Gradual Progress of a Re- publican Party. — Scheme among the Officers of bringing Charles to Trial. — This is finally deter- mined.—Seclusion of Presbyterian Members. — Motives of some of the King's Judges. — (Ques- tion of his Execution discussed. — His Charac- ter.— Icon Basilike. Factioivs that, while still under some restraint from the forms, at least, of Consti- tutional law, excite our disgust by their selfishness or intemperance, are little likely to redeem their honor when their animosi- ties have kindled civil warfare. If it were difficult for an upright man to enlist with an entire willingness under either the Roy- alist or the Parliamentarian banner at the commencement of hostilities in 1642, it be- came far less easy for him to desire the complete success of one or the other cause as advancing time displayed the faults of both in darker colors than they had pre- viously worn. Of the Parliament — to be- gin with the more powerful and victorious party — it may be said, I think, with not I greater severity than truth, that scarce two 322 CONSTITUTIONAL HISTOEY OF ENGLAKD [Chap. X. or three public acts of justice, humanitj'', or generosity, and veiy few of political wisdom or courage, are recorded of them, from their quarrel with the king to their expulsion by Cromwell. Notwithstanding the secession from Par- liament before the commencement of the war of nearly all the peers who could be reckoned on the king's side, and of a pretty considerable part of the Commons, there still continued to sit at Westminster many sensible and moderate persons, who thought that they could not serve their countiy bet- ter than by remaining at their posts, and la- bored continually to bring about a pacifica- tion by mutual concessions. Such were the Earls of Northumberland, Holland, Lin- coln, and Bedford, among the peers ; Sel- den, White lock, HoUis, Waller, Pierpoint, and Rudyard, in the Commons. These, however, would have formed but a very in- effectual minority, if the war itself, for at least twelve months, had not taken a turn little expected by the Parliament. The hard usage Charles seemed to endure in so many encroachments on his ancient prerog- ative awakened the sympathies of a gener- ous aristocracy, accustomed to respect the established laws, and to love monarchy, as they did their own liberties, on the score of its prescriptive title ; averse, also, to the rude and morose genius of Puritanism, and not a little jealous of those upstart dema- gogues who already threatened to subvert the gi-aduated pyramid of English society. Their zeal placed the king at the head of a far more considerable army than either Success uf party had anticipated.* In the thekinpn ^j.^j j^j^j^j j f Edgohill, the first part ' o ' of the war. though he did not remain master of the field, yet all the military consequen- ces were evidently in his favor. f In the * May, p. 165. t Both sides claimed the victory. May, who thinks that Esses, by his iujudicious conduct after the battle, lost the advantage he had gained in it, admits that the effect was to strengthen the king's side. " Those v^ho thought his success impossible, began to look upon him as one who might be a conqueror, and many neuters joined him," p. 176. Ludlow is of the same opinion as to Essex's behav- ior and its consequences ; " Our anny, after some refreshment at Warwick, returned to London, not like men that had obtained a victory, but as if they had been beaten," p. 52. This shows that they nad riot, in fact, obtained much of a victory ; and Lord Wharton's report to Parliament almost leads ensuing campaign of 1643, the advantage was for several months entirely his own ; nor could he be said to be a loser on the whole result, notwithstanding some revers- es that accompanied the autumn. A line drawn from Hull to Southampton would suggest no very incorrect idea of the two parties, considered as to their militaiy oc- cupation of the kingdom, at the beginning of September, 1043 ; for if the Parliament, by the possession of Gloucester and Plym- outh, and by some force they had on foot in Cheshire and other midland parts, kept their ground on the west of this line, this was nearly compensated by the Earl of Newcastle's possession at that time of most of Lincolnshire, which lay within it. Such was the temporary effect, partly, indeed, of what may be called the fortune of war, but rather of the zeal and spirit of the Roy- alists, and of their advantage in a more nu- merous and intrepid cavahy.* It has been frequently supposed, and doubtless seems to have been a prevailing opinion at the time, that if the king, in- stead of sitting down before Gloucester at the end of August, had marched upon Lon- don, combining his operations with Newcas- tle's powerful army, he would have brought the war to a triumphant conclusion. f In these matters men judge principally by the event. Whether it would have been pru- dent in Newcastle to have left behind him the strong garrison of Hull under Fairfax, us to think the advantage, upon the whole, to have been with the king. — Pari. Hist., ii., 1-195. * May, 212. Baillie, 373, 391. t May, Baillie, Mrs. Hutchinson, are as much of this opinion as Sir Philip Warwick, and other Roy- alist writers. It is certain that there was a pro- digious alann, and almost despondency, among the Parliamentarians. They immediately began to make intrenchments about London, which were finished in a month. — May, p. 214. In the Somers Tracts, iv., 534, is an interesting letter from a Scotsman then in London, giving an account of these fortifications, which, considering the short time emploj ed about them, seem to have been very respectable, and such as the king's army, with its weak cavalrj- and bad artilleiy, could not easily have carried. Lord Sunderland, four days before the battle of Newbury-, wherein he was killed, wrote to his wife, that the king's affairs had never been in a more prosperous condition ; that sitting dovrn before Gloucester had prevented (hcirjinish- ins the war thai year, " which nothing could keep us from doing if we had a mouth's more time." — Sidney Letters, ii., 671. He alludes in the same letters to the divisions in the Royal party. ClU. 1.-1642-49.] FROM HENRY VII. TO GEORGE 11. 323 and an unbroken though inferior force, com- manded by Lord Willoughby and Crom- well, in Lincoln.shire, 1 must leave to mili- taiy critics ; suspecting, however, that he would have found it difficult to draw away the Yorkshire gentry and yeomanry, form- ing the strength of his army, from their un- protected homes. Yet the Parliamentary forces were certainly, at no period of the war, so deficient in numbers, discipline, and confidence ; and it may well bo thought that the king's want of permanent resources, with his knowledge of the timidity and dis- union which prevailed in the capital, ren- dered the boldest and most forward game his ti'ue policy. It was natural that the moderate party Efforts by in Parliament should acquire partyfor""^ sti-ength by the untoward for- peaoe. tune of its cirms. Their aim, as well as that of the Constitutional Royalists, was a speedy j)acification ; neither party so much considering what terms might be most advantageous to their own side, as which way the nation might be freed from an incalculably protracted calamity. On the king's advance to Colnbrook in Novem- ber, 1642, the two Houses made an over- ture for negotiation, on which he expi'essed Affair at h's readiness to enter. But, dur- Brentford. j^g {jjg parley, some of his troops advanced to Brentfoi'd, and a sharp action took place in that town. The Parliament affected to consider this such a mark of per- fidy and bloodthirstiness as justified them in breaking off the ti-eaty ; a step to which they were doubtless more inclined by the king's reti'eat, and their discoveiy that his army was less formidable than they had apprehended. It is very probable, or rath- er certain, even from Clarendon's account, that many about the king, if not himself, were sufficiently indisposed to negotiate ; yet, as no cessation of arms had been agi'eed upon, or even proposed, he can not be said to have waved the unquestionable right of eveiy belligerent, to obtain all possible ad- vantage by arms, in order to treat for peace in a more favorable position. But, as man- kind are seldom reasonable in admitting such maxims against themselves, he seems to have injured his reputation by this affair of Brentford. A treaty, from which many ventured to hope much, was begun early in the next spring at Oxford, after a struggle Treaty at which had lasted through the win- Oxford, ter within the walls of Parliament.* But though the party of Pym and Hampden at Westminster were not able to prevent ne- gotiation against the strong bent of the House of Lords, and even of the city, which had been taught to lower its tone by the interruption of trade, and especially of the supply of coals from Newcastle, yet they were powerful enough to make the Houses insist on terms not less unreasona- ble than those contained in their nineteen propositions the year before. f The king could not be justly expected to comply with these ; but, had they been more moderate, or if the Parliament would have in some measure receded from them, we have ev- ery reason to conclude, both by the nature of the terms he proposed in return, and by the positive testimony of Clarendon, that he would not have come sincerely into any scheme of immediate accommodation. The I'eason assigned by that author for the un- willingness of Charles to agi-ee on a cessa- tion of arms during the negotiation, though it had been originally suggested by himself (and which reason would have been still more applicable to a treaty of peace), is one so strange, that it requires all the authority of one very unwilling to confess any weak- ness or duplicity of the king to be believed. He had made a solemn promise to the queen on her departure for Holland the year be- fore, " that he would receive no person who * Pari. Hist., iii., 45, 48. It seems natural to tliiuk that, if the moderate party were able to con- tend so well against their opponents after the de- sertion of a gi'eat many Royalist members who had joined the king, they would have maintained a de- cisive majority had these continued in their places. But it is to be considered, on the other hand, that the king could never have raised an anuy if he had not been able to rally the peers and gentry round his banner, and that in liis army lay the real secret of the temporary strength of the pacific partj". t Pari. Hist., iii., 68, 94. Clarendon, May, Whitelock. If we believe the last (p. 6S), the king, who took, as usual, a very active part in the discussions upon this treaty, would frequently have been inclined to come into an adjustment of tcmis, if some of the more warlike spirits about him (glancing, apparently, at Rupert) had not over-per- suaded his better judgment. This, however, does not accord with what Clarendon tells us of the queen's secret influence, nor, indeed, with all we have reason to believe of the king's disposition during the war. 324 CONSTITUTIONAL HISTORY OF EXQLAND [Chap. X. liad disserved him into any favor or trust, without her privity and consent ; and that, as she had undergone many reproaches and cnhimnies at the entrance into the war, so he would never make any peace but by her intei-position and mediation, that the king- dom might receive that blessing only from her."* Let this be called, as the reader may please, the extravagance of romantic affection, or, rather, the height of pusillani- mous and criminal subserviency, we can not surely help acknowledging that this one marked weakness in Charles's character, had there been nothing else to object, ren- dered the return of cordial harmony be- tween himself and his people scarce witliin the bounds of natural possibilitJ^ In the equally balanced condition of both forces at this particular juncture, it may seem that some compromise on the great question of the militia was not impracticable, had the king been truly desirous of accommodation ; for it is only just to remember that the Par- liament had good reason to demand some se- curity for themselves, when he had so per- emptorily excluded several persons from am- nesty. Both parties, in truth, were stand- ing out for more than, either according to their situation as belligerents, or even, per- haps, according to the principles of our Con- stitution, they could reasonably claim ; the two Houses having evidently no direct right to order the militaiy force, nor the king, on the other hand, having a clear prerogative to keep on foot an army, which is not easily distinguishable from a militia, without con- sent of Parliament. The most reasonable * Life of Clarendon, p. 79. This induced the king to find pretexts for avoiding the cessation, and was the real cause of liis refusal to restore the Earl of Northumberland to his post of lord-admiral during this treaty of Oxford, which was urged by Hyde. That peer was at this time, and for sever- al months afterward, inclining to come over to the king ; but. on the bad success of Holland and Bed- ford in their change of sides, he gave into the op- posite course of politics, and joined the party of Lords Say and Wharton, in determined hostility to the king. Dr. Liugard has lately thrown doubts upon this passage in Clarendon, but upon gi-ounds which I do not clearly understand. — Hist, of Engl., x., 208, note. That no vestige of its truth should appear, as he obsei-ves, in the private correspondence be- tween Charles and his consort (if he means the let- ters taken at Naseby, and I know no other), is not very singular, as the whole of that correspondence is of a much later date. course, apparently, would have been for the one to have waved a dangerous and disput- ed authority, and the other to have desist- ed from a still more unconstitutional preten- sion, which was done by the Bill of Rights in 1689. The kingdom might have well dispensed, in that age, with any military organization ; and this seems to have been the desire of Whitelock, and probably of other reasonable men. But, unhappily, when swords are once drawn in civil war, they are seldom sheathed till experience has .shown which blade is the sharper. Though this particular instance of the queen's prodigious ascendency over her husband remained secret till the publica- tion of Lord Clarendon's life, it was in gen- eral well known, and put the leaders of the Commons on a remarkable stroke of policy in order to prevent the renewal of negotiations. On her landing in impeachment the North with a supply of mon- 'he queen, ey and anns, as well as with a few troops she had collected in Holland, they can-ied up to the Lords an impeachment for high treason against her. This measure (so ob- noxious was Henrietta) met with a less vig- orous opposition than might be expected, though the moderate party was still in con- siderable force.* It was not only an in- solence which a king less uxorious than Charles could never pai'don, but a violation of the primary laws and moral sentiments that preserve human society, to which the queen was acting in obedience. Scarce any proceeding of the Long Parliament seems more odious than this, whether designed by way of intimidation, or to exasperate the king, and render the composure of existing diftej-ences more impracticable. * I can not discover in the Journals any division on this impeachment. But HoUis inveighs against it in his memoirs as one of the flagrant acts of St. John's party ; and there is an account of the de- bate on this subject in the Somers Tracts, v., 500, whence it appears that it was opposed by May- nard. Waller, Whitelock, and others, but support- ed by Pjm, Strode, Long. Gljnn, and by Martin with his usual fui-j- and rudeness. The first of these carried up the impeachment to the House of Lords. This impeachment was not absolutely lost sight of for some time. In January, 1 644, the Lords ap- pointed a committee to consider what mode of proceeding for bringing the queen to trial was most agreeable to a Parliamentary way, and to peruse precedents. — Pari. Hist., 194. Cha. 1,-1642-49.] FROM HENRY VII. :. TO GEORGE II. 325 The enemies of peace were strengthened Waller's W (liscoveiy of what is usually Plot. called Waller's Plot, a scheme for making a strong demonstration of the Roy- alist party in London, wherein several mem- bers of both Houses appear to have been more or less concerned. Upon the detec- tion of this conspiracy, the two houses of Parliament took an oiith not to lay down arms so long as the papists now in arms should be jjrotected from the justice of Par- liament ; and never to adhere to, or willingly assist, the forces raised by the king, without the consent of both Houses. Every indi- vidual member of the Peers and Commons took this oath, some of them being then in secret concert with the king, and others entertaining intentions, as their conduct veiy soon evinced, of deserting to his side.* Such was the commencement of a system of perjury, which lasted for many years, and belies the pretended religion of that hypocritical age. But we may always look for this effect from oppressive power and the imposition of ])olitical tests. The king was now in a course of success, which made him rather hearken to the san- guine courtiers of Oxford, where, according to the invariable character of an exiled fac- tion, every advantage or reverse brought on a disproportionate exultation or desponden- cy, than to those better counselors who knew the prccariousness of his good fortune. He published a declaration, wherein he de- nied the two houses at Westminster the name of a Parliament, which he could no more take from them, after the bill he had passed, than they could deprive him of his royal title, and by refusing which he shut up all avenues to an equal peace. f This was soon followed by so extraordinary a po- litical error as manifests the king's want of judgment, and the utter improbability that any event of the war could have restored to Secession of England the blessings of liberty toThe'^fil^'s ""^ repose. Three peers of the quarters. moderate party, the Earls of Holland, Bedford, and Clare, dissatisfied with the preponderance of a violent faction • Pari. Hist., 129. t Pari. Hist., 133. June 20. Clarendon, iv., 155. He published, however, a declaration soon after the taking of Bristol, containing full assurances of his determination to govern by the known laws. — Pari. Hist., 144. in the Commons, left their places at West- minster and came into the king's quarters. It might be presumed, from general policy as well as from his constant declarations of a desire to restore peace, that they would have been received with such studied cour- tesy as might sei-ve to reconcile to their own mind a step which, when taken with the best intentions, is always equivocal and humiliating. There was great reason to believe that the Earl of Northumberland, not only the first peer then in England as to family and fortune, but a maa highly es- teemed for prudence, was only waiting to obsei-ve the reception of those who went first to Oxford before he followed their steps. There were even well-foiuided hopes of the Earl of Essex, who, though incapable of beti'aying his trust as commander of the Parliament's army, was, both from personal and public motives, disinclined to the war- party in the Commons. There was much to expect from all those who had secretly wished well to the king's cause, and from those whom it is madness to reject or in- sult, the followers of fortune, the worshipers of power, without whom neither . , ' Their treat- fortune nor power can long sub- ment ihere sist. Yet such was the state of Charles's council-board at Oxford, that some were for arresting these proselyte earls ; and it was carried with difficulty, after they had been detained some time at Walling- ford, that they might come to the court. But they met there with so many and such general slights, that, though they fought in the king's army at Newbury, they found their position intolerably ignominious, and after about three months, returned to the Parliament with manj^ expressions of re- pentance, and strong testimonies to the evil counsels of Oxford.* * Clarendon, iv., 19-2, 262. Whitelock, 70. They met with a worse reception at Westminster than at Oxford, as, indeed, they had reason to expect. A motion that the Earl of Holland should be sent to the Tower was lost in the Commons by only one voice, Pari. Hist., 180. They were provoked at his taking his seat without permission. After long refusing to consent, the Lords agreed to an ordinance, June 29. 1644, that no peer or common- er who had been in the king's quarters should be admitted again to sit in either House. — Pari. Hist., 271. This severity was one cause of Essex's dis- content, which was increased when the Commons refused him leave to take Holland with him on his expedition into the West that summer. — Baillic, 326 COXSTITUTIOXAL HISTORY OF ENGLAND [Chap. X. The king seems to have been rather pass- ive in this strange piece of impolicy, but by no means to have talien the hne that be- came him, of repressing tlie selfish jealousy or petty revengefulness of his court. If the Earl of Holland was a man whom both he and the queen, on the score of his great ob- ligations to them, might justly reproach with some ingi'atitude, there was nothing to be objected against the other two, save their continuance at Westminster, and compli- ance in votes that he disliked ; and if this were to be visited by neglect and discoun- tenance, there could, it was plain, be no reconciliation between him and the Parlia- ment. For who could imagine that men of courfige and honor, while possessed of any sort of strength and any hopes of preserving it, would put up with a mere indemnity for their lives and fortunes, subject to be reck- oned as pardoned traitors, who might thank the king for his clemencj' without presuming to his favor? Charles must have seen his superiority consolidated by repeated victo- ries before he could prudently assume this tone of conquest. Inferior in substantial force, notwithstanding his transient advan- tages, to the Parliament, he had no proba- bility of regaining his station but by defec- tions from their banner ; and these, with incredible folly, he seemed to decline ; far unlike his illustrious father-in-law, who had cordially embraced the leaders of a rebellion much more implacable than the present. For the Oxford counselors and courtiers who set themselves against the reception of the three earls, besides their particular an- imosity toward the Earl of Holland,* and i., 426. Whitelock, 87. If it be asked why this Roman rigor was less impolitic in the Parliament than in the king, I can onlj' answer, that the stronger and the weaker have different measures to pursue ; but relatively to the pacification of the kingdom, upon such terms as fellow-citizens ought to require from each other, it was equally blama- ble in both parties, or rather more so in that pos- sessed of the greater power. * It is intimated by Clarendon that some at Ox- ford, probably Jerrajm and Digby, were jealous of Holland's recovering the influence he had possess- ed with the queen, who seems to have retained no resentment against him. As to Bedford and Clare, they would probablj- liave been better re- ceived if not accompanied by so obnoxious an in- triguer of the old court. This seems to account for the unanimity whicli the historian describes to have been shown in the council against their fa- vorable reception. Light and passionate tempers, that general feeling of disdain and distrust which, as Clarendon finely observes, seems by natui'e attached to all desertion and in- constancy, whether in politics or religion (even among those who reap the advantage of it, and when founded upon what they ought to reckon the soundest reasons), there seems grounds to suspect that they had deeper and more selfish designs than they cared to manifest. They had long be.set the king with solicitations for titles, offices, pen- sions ; but these were necessarily too limit- ed for their cravings. They had sustained, many of them, great losses ; they had per- formed real or pretended services for the king ; and it is probable that they looked to a confiscation of enemies' property for their indemnification or reward. This would ac- count for an adverseness to all overtures for peace, as decided, at this period, among a great body of the Cavaliers as it was with the factions of Pym or Vane. These factions were now become final- ly predominant at Westminster. „, A , 1 Ti ■ T, Theanti- On the news that Prince Ru- pacific party pert had taken Bristol, the last Sant%T' and most serious loss that the ■vvestmin- Parliament sustained, the Lords agreed on propositions for peace to be sent to the king, of an unusually moderate tone.* The Commons, on a division of 94 to 6.5, de- termined to take them into consideration ; but the Lord-mayor Pennington having pro- cured an address of the citj' against peace, backed by a tumultuous mob, a small ma- jority was obtained against concurring with the other House. f It was after this that like that of Henrietta, are prone to forget inju- ries ; serious and melancholic ones, like that of Charles, never lose sight of them. * Baillie deplores at this time "the horrible fears and confusions in the city, the king every where being victorious. In the city, a stiong and insolent party for him," p. 391. "The malignants stirred a multitude of women of the meaner and more infamous rank to come to the door of both Houses, and cry tumultuously for peace on any tenns. This tumult could not be suppressed but by violence, and killing some three or four women, and hurting some of them, and imprisoning many," p. 300. t Lords and Commons' Journals. Pari. Hist , 156, &.C. Clarendon, iv., 183. HoUis's Memoirs. HoUis was a teller for the raajoritj' on the first oc- casion ; he had left the warlike party some months (Baillie, i., 356) ; and his name is in the Journals repeatedly from November, 1642, as teller against them, though he is charged with having said tlie Cha. I.— 1642-49.] FROM HENRY VII. TO GEORGE II. 327 the lords above mentioned, as well as many of the commons, quitted Westminster. The prevailing party had no tliouglits of peace till they could dictate its conditions. Through Essex's great success in raising the siege of Gloucester, the most distin- guished exploit in his military life, and the battle of Newbury, wherein the advantage was certainly theirs, they became secure against any important attack on the king's side, the war turning again to endless sieges and skirmishes of partisans. And they now adopted two important measures, one of which gave a new complexion to the quarrel. LirtJeton, the lord-keeper of the great seal, had carried it away with him to tlie king. This of itself put a stop to the i-egu- lar course of the executive government, and to the administi-ation of justice within the Parliament's quarters. No employments could be filled up, no writs for election of members issued, no commissions for hold- ing the assizes completed, without the in- dispensable formality of affixing the gi-eat seal. It must surely excite a smile, that men who had raised armies, and fought bat- tles against the king, should be perplexed how to get over so technical a difficulty. But the greiit seal, in the eyes of the Eng- lish lawyers, has a sort of mysterious effi- cacy, and passes for the depository of )-oyal authority in a higher degree than the per- The Parlia- son of the king. The Commons a ne«"g!feat pvepared an ordinance in July seal. for making a new great seal, in which the Lords could not be induced to concur till October. The Royalists, and the king himself, exclaimed against this as the most audacious ti-eason, though it may be reckoned a very natural consequence of the state in which the Pai liament was plac- ed; and in the subsequent negotiations, it was one of the minor points in dispute, whether he should autliorize the proceed- ings under the great seal of the two Hous- es, or they consent to sanction what had been done by virtue of his own. The second measure of Parliament was of greater moment and more fatal conse- quences. I have already mentioned the year before that he abliorred the name of accom- modatioQ. — Hutchinson, p. 296. Though a very honest, and to a certain extent an able man, he was too much carried away by personal animosi- ties ; and as these shifted, his principles shifted also. stress laid by the bigoted Scots Presbyte- rians on the establishment of their own church-government in England. Chiefly, perhaps, to conciliate this people, the House of Commons had entertained the bill for abolishing Episcopacy, and this had formed a part of the nineteen propositions that both Houses tendered to the king.* After the action at Brentford, they concurred in a declaration to be delivered to the Scots commissioners, resident in London, where- in, after setting forth the malice of the pre- latical clergy in hindering the reformation of ecclesiastical government, and professing their own desire willingly and aft'ectionately to pursue a closer union in such matters be- tween the two nations, they request their bretlu'en of Scotland to raise such forces as they should judge sufficient for the securing the peace of their own borders against ill- affected persons there, as likewise to assist them in suijpressing the army of papists and foreigners, which, it was expected, would shortly be on foot in England. f This overture produced for many mouths no sensible effect. The Scots, with all their national wariness, suspected that, in spite of these general declarations in favor of their Church polity, it was not much at heart with most of the Parliament, and might be given up in a treaty, if the king would concede some other matters in dis- pute. Accordingly, when the progress of his arms, especially in the North, dui-ing the ensuing summer, compelled the Parlia- ment to call in a more pressing manner, and by a special embassy, for their aid, they re- solved to bind them down by such a com- pact as no wavering policy should ever re- scind. They insisted, therefore, on the adoption of the solemn League and Cove- nant, founded on a similar association of their own, five years before, through which they had successfully resisted the king, and overthrown the prelatic government. The Covenant consisted in an oath to be sub- scribed by all sorts of persons in both king- doms, whereby they bound themselves to preserve the Reformed religion in the * The resolution, that government by arclibish- op.s, bishops, &c., was inconvenient, and ought to be taken away, passed both Houses unanimously, September 10, 1642.— Pari. Hist., ii., 14C5. But the ordinance to carry this fidlj' into effect was not made till October, 1646. — Scobell's Ordi- nances, t Pari. Hist., iii., 15. 328 CONSTITUTIONAL HISTORY OF ENGLAND [Chap. X Church of Scotland, in doctrine, worship, discipline, and government, according to the word of God and practice of the best Re- formed churches ; and to endeavor to bring the churches of God in the three kingdoms to the nearest conjunction and uniformity in religion, confession of faith, form of church-government, directory for worship, and catechising ; to endeavor, without re- spect of persons, the extirpation of popery, prelacy (that is, church-government by arch- bishops, bishops, their chancellors and com- missaries, deans and chapters, archdeacons, and all other ecclesiastical officers depend- ing on that hierarchy), and whatsoever should be found contrary to sound doctrine and the power of godliness ; to preseiTe the rights and privileges of the Parliaments, and the liberties of the kingdoms, and the king's person and authority, in the preservation and defense of the true religion and liber- ties of the kingdoms ; to endeavor the dis- covery of incendiaries and malignants, who hinder the reformation of religion, and di- vide the king from his people, that they may be brought to punishment ; finally, to assist and defend all such as should enter into this Covenant, and not suffer themselves to be withdrawn from it, whether to revolt to the opposite party, or to give into a detestable indifference or neutrality. In conformity to the sti'ict alliance thus established between the two kingdoms, the Scots commissioners at Westminster were intrusted, jointly with a committee of both Houses, with very ex- tensive powers to administer the public af- fairs.* Eveiy member of the Commons who re- The Pariia- mained at Westminster, to the "nbestt'he ^^'^'^^^ °f 228, or perhaps more. Covenant. and from 20 to 30 peers that formed their Upper House, f subscribed this * This committee, appointed in February, 1644, consisted of the foHowing persons, the most con- .spicnons, at that time, of the Parliament : the Earls of Northumberland, Essex, Warwick, and Manchester ; Lords Say, Wharton, and Roberts ; Mr. Pierpoint, the two .Sir Henry Vanes, Sir Phil- ip Stapylton. Sir William Waller, Sir Gilbert Gerrard, Sir William ArmjTi, Sir Arthur Hazle- rig ; Messrs. Crew, Wallop, St. John, Cromwell, Brown, and Glj-nn. — Pari. Hist., iii., 248. t Somers Tracts, iv., 533. The names marked in the Parliamentary History as having taken the Covenant are 236. The Earl of Lincoln alone, a man of great integ- rity and moderation, thougli only conspicuous in deliberate pledge to overturn the Established Church ; many of them with extreme re- luctance, both from a dislike of the innova- tion, and from a consciousness that it raised a most formidable obstacle to the restora- tion of peace ; but with a secret reserve, for which some want of precision in the language of this Covenant (purposely intro- duced by Vane, as is said, to shelter his own schemes) afforded them a sort of apologj%* It was next imposed on all civil and military officers, and upon all the beneficed clergy. f A severe persecution fell on the faithful chil- dren of the Anglican Church. Many had already been sequestered from their livings, or even subjected to imprisonment, by the Parliamentai-y committee for scandalous ministers, or by subordinate committees of the same kind set up in each county within ! their quarters ; sometimes on the score of • immoralities or false doctiine, more fi-e- j the Journals, refused to take the Covenant, and was excluded, in consequence, from his seat iu the ! House : bat on his petition next j ear, though, as I far as appears, without compliance, was restored, and the vote rescinded. — Pari Hist.. 393. He ' regularly protested against all violent measures ; and we still find his name in the minority on such [ occasions after the Restoration. Baillie says, the desertion of about six peers at this time to the king was of great use to the pass- ing of the Covenant in a legal way. — Vol. i., p. 390. ' * Burnet's Mem. of Duke of Hamilton, p. 239. I am not quite satisfied as to this, which later ! writers seem to have taken from Bumet. It may ' well be supposed that the ambiguity of the Cove- nant was not very palpable, since the Scots Pres- [ bj terians, a people not easily cozened, were con- tent with its expression. According to fair and honest rules of interpretation, it certainly bound ! the subscribers to the establishment of a church- goveniment conformed to that of Scotland, name- ly, the Presby terian, exclusive of all mixture with any other. But Selden, and the other friends of 1 moderate Episcopacy who took the Covenant, jus- j tified it, I suppose, to their consciences, by the I pretext that, iu renouncing the jurisdiction of bish- 1 ops. thej- meant the unlimited jurisdiction without concuiTence of any presbyters. It was not, how- ever, an action on which they could reflect with I pleasure. Baxter saj-s that Gataker, and some others of the assembly, would not subscribe the Covenant but on the understanding that they did not renounce primitive Episcopacy by it — Life of j Baxter, p. 48. These controversial subtleties elude ! the ordinary reader of history. t AfVer the war was ended, none of the king's party were admitted to compound for their estates without taking the Covenant. This Clarendon, in one of his letters, calls " making haste to buy dam- ! nation at two years' purchase.'' — Vol. ii., p. 286. Cha. I.— 164-2-40.] FROM HENRY VII. TO GEORGE II. 329 quently for what they termed malignity, or attachment to the king and his party.* Yet waiy men, who meddled Persecution . , ,. . . , , of the clergy not With pohtics, might hope to whorefuseit. ^j^jj^ jj^jg inquisition. But the Covenant, imposed as a general test, drove out all who were too conscientious to pledge themselves by a solemn appeal to the Deity to resist the polity which they generally be- lieved to be of his institution. What num- ber of the clergy were ejected (most of them but for refusing the Covenant, and for no moral oflense or imputed superstition) it is impossible to ascertain. Walker, in his Sufferings of the Clei'gy, a folio volume pub- lished in the latter end of Anne's reign, with all the virulence and partiality of the High-Church faction in that age, endeavored to support those who had reckoned it at 8000 ; a palpable over-statement upon his own showing, for he can not produce near 2000 names, after a most diligent investiga- tion. Neal, however, admits ICOO, probably more than one fifth of the beneficed rainis- * Neal, ii., 19, &c., is fair enough in censui-iiig the committees, especially those in the countiy. "The greatest part [of the clergy] were cast out for malignity [attadmient to the royal cause] ; su- perstition and false doctrine were hardly ever ob- jected; yet the proceedings of the sequestrators were not always justifiable ; for, whereas a court of judicature should rather be counsel for the pris- oner than the prosecutor, the commissioners con- sidered the king's clergy as their most dangerous enemies, and were ready to lay hold of all oppor- tunities to discharge them their pulpits, " p. 24. But if we can rely at all on White's Century of Malignant Ministers (and 1 do not perceive that Walker lias been able to controvert it), there were a good many cases of irregular life in the clergy, so far, at least, as liaunting ale-houses, whicli, however, was much more common, and, conse- qaently, less indecent in that age than at present. See, also, Baxter's Life, p. 74, whoso authority, though open to some exceptions on the score of prejudice, is at least better than that of Walk- er's. The king's party were not less oppressive to- ward ministers whom they reckoned Puritan, which unluckily comprehended most of those who were of strict lives, especially if they preached Calvinistically, unless they redeemed that suspi- cion by strong demonstrations of loyalty. — Neal, p. 21. Baxter's Life, p. 42. And, if they put them- selves forward on this side, they were sure to suf- fer most severely for it on the Parliament's suc- cess, an ordinance of April 1, 1643, having seques- tered the private estates of all the clergy who had aided the king. Thus the condition of the Eng- lish clergy was every way most deplorable ; and, in fact, they were utterly ruined. ters in the kingdom.* The biographical col- lections furnish a pretty copious martyi'ology of men the most distinguished by their Icai-n- ing and virtues in that age. The remorse- less and indiscriminate bigotry of Presby- terianism might boast th;it it had heaped disgrace on Walton, and driven Lydiat to beggary ; that it trampled on the old age of Hales, and imbittered with insult the dying moments of Chillingworth. But the most unjustifiable act of these zealots, and one of the greatest i_ c ^1 T T) V Impeachment reproaches ot the Liong Jr'arlia- ami executioa ment, was the death of Arch- "f'-^"''- bishop Laud. In the first days of the ses- sion, while the fall of Strafford struck every one with astonishment, the Commons had carried up an impeachment against him for high treason, in fourteen articles of charge; and he had lain ever since in the Tower, his revenues and even private estate seques- tered, and in great indigence. After nearly three years' neglect, specific articles were exhibited against him in October, 1643, but not proceeded on with vigor till December, 1G44, when, for whatever reason, a determ- ination was taken to pursue this unfortu- nate prelate to death. The charges against him, which Wild, Maynard, and other man- agers of the impeachment were to aggravate into treason, related partly to those papistic- al innovations which had nothing of a politic- al character about them, partly of the vio- lent proceedings in the Star Chamber and High Commission Coiuts, wherein Laud was very prominent as a counselor, but cer- tainly without any gi-eater legal responsi- bility than fell on many others. He de- fended himself, not always prudently or sat- isfactorily, but with courage and ability ; never receding from his magnificent notions of spiritual power, but endeavoring to shift the blame of the sentences pronounced by the council on those who concuired with him. The imputation of popery he repelled by a list of the converts he had made ; but the word was equivocal, and he could not deny the difference between his Protestant- ism and that of our Reformation. Nothing could be more monstrous than the allegation * Neal, p. 9.3. He says it was not tendci-ed, by favor, to some of the clergy who had not been act- ive against the Parliament, and were reputed Cal- vinisls, p. 59. Sanderson is said to be one instance. This historian, an honest and well-natured man at bottom, justly censures its imposition. 330 CONSTITUTIONAL HISTORY OF ENGLAND [Chap. X. of treason in this case. The judges, on a reference hj the Lords, gave it to be under- stood, in their timid way, that the charges contained no legal treason.* But, the Com- mons having changed their impeachment into an ordinance for his execution, the peers were pusillanimous enough to comply. It is said by Clarendon that only seven lords were in the House on this occasion ; but the Journals unfortunately bear witness to the presence of twenty.f Laud had amply merited punishment for his tyrannical abuse of power ; but his execution at the age of seventy, without the slightest pretense of political necessity, was a far more unjusti- fiable instance of it than any that was al- leged against him. Pursuant to the before-mentioned treaty, ^ , the Scots army of 21,000 men Decline of the , , . ^r. , i t king^'s affairs marched mto bngland in Janu- lu 1644. 1644. This was a very seri- ous accession to Charles's difficulties, al- ready sufficient to dissipate all hopes of final triumph, except in the most sanguine minds. His successes, in fact, had been rather such as to surprise well-judging men than to make them expect any more favorable ter- mination of the war than by a fair treaty. From the beginning it may be said that the yeomanry and ti'ading classes of towns were generally hostile to the king's side, even in those counties which were in his militaiy occupation ; except in a few, such as Corn- wall, Worcester, Salop, and most of Wales, where the prevailing sentiment was chiefly Royalist ;t and this disaffection was pi-odig- * " AH the judges answered that they could de- liver no opinion in this case in point of treason by the law, because they could not deliver any opin- ion in point of treason but what was particularly expressed to be treason in the statute of 25 Edw. III., and so referred it wholly to the judgment of this House." — Lords' Journals. 17th of Dec, 1644. t Lords' Journals, 4th of January. It is not said to be done nem. con. t " The difference in the temper of the common people of both sides was so great, that they who inclined to the Parliament left nothing unperform- ed that might advance the cause ; whereas they who wished well to the king thought they had performed their duty in doing so, and that they had done enough for him in that they had done nothing against him." — Clarendon, p. 3, 452. " Most of the gentry of the county (Nottingham- shirei,' says Mrs. Hutchinson, "were disafl'ected to the Parliament; most of the middle sort, the able, substantial freeholders and the other com- i»<:-^ who had not theii' dependence upon the ma iously increased through the license of his ill-paid and ill-disciplined anny. On the other hand, the gentiy were, in a gi-eat majority, attached to his cause, even in the parts of England which lay subject to the j Parliament. But he was never able to j make any durable impression on what were , called the associated counties, extending from Norfolk to Sussex inclusively, within ; which no rising could be attempted with any effect ;* while, on the other hand, the Parliament possessed several garrisons, and kept up considerable forces in that larger portion of the kingdom where he might be reckoned superior. Their resources were far gi-eater ; and the taxes imposed by them, though exceedingly heavy, were more regu- larly paid, and less ruinous to the people, than the sudden exactions, half plunder, half contribution, of the ravenous Cavaliers. The king lost ground during the winter. He had built hopes on bringing over ti'oops from Ire- land ; for the sake of which he made a tiuce, then called the cessation, with the rebel Catholics. But this re-enforcement having been beaten and dispersed by Fair- fax at Namptwich, he had the mortification of finding that this scheme had much in- creased his own unpopularity, and the dis- trust entertained of him even by his adhe- lignant nobility and gentry, adhered to the Parlia- ment," p. 81. This I conceive to have been the case in much the greater part of England. Bax- ter, in his Life, p. 30, says just the same thing in a passage worthy of notice. Bat the Worcester- shire populace, he says, were ■inolent Royalists, p. 39. Clarendon observes in another place, iii., 41, " There was in this countj' (Cornwall), as through- out the kingdom, a wonderful and superstitious reverence toward the name of a Parliament, and a prejudice to the power of the court." He after- ward, p. 436, calls " an imphcit reverence to the name of a Parliament the fatal disease of the whole kingdom." So prevalent was the sense of the king's arbitrary government, especially in the case of ship-money. Warburton remarks, that he never expressed any repentance, or made any confession in his public declarations, that his former adminis- j tration had been illegal. — Notes on Clarendon, p. ] 566. But this was not, perhaps, to be expected ; ' and his repeated promises to govern according to I law might be construed into tacit acknowledgments of past eiTors. * The associated counties, properly speaking, were at first Norfolk, Suffolk, Essex, Hertford, I Cambridge, to which some others were added. ] Susses, I believe, was not a part of the associa- tion ; but it was equally within the Parliamentary < pale, though the gentrj- were remarkably loyal in j their inclinations. The same was true of Kent. Cha. I— 1642-49 ] FROM HENRY V: II. TO GEORGE 11. 331 rents, without the smallest advantage. The next campaign was marked by the great de- feat of Rupert and Newcastle at IMarston Moor, and the loss of the north of England ; a blow so terrible as must have brought on his speedy ruin, if it had not been in some degree mitigated by his strange and unex- pected success over Essex in the West, and by the tardiness of the Scots in making use of their victory. Upon the result of the campaign of 1644, the king's affairs were in such bad condition that nothing less than a series of victories could have reinstated them, yet not so totally ruined as to hold out much prospect of an approaching term- ination to the people's calamities. There had been, from the veiy commence- Factions at meiit of the war, all that distrac- Oxford. jijjjj jjjg king's councils at Ox- ford, and all those bickerings and heart- burnings among his adherents, which natu- rally belong to men embarked in a danger- ous cause with different motives and differ- ent views. The military men, some of whom had served with the Swedes in Ger- many, acknowledged no laws but those of war, and could not understand that, either in annoying the enemy or providing for themselves, they were to acknowledge any restraints of the civil power. The lawyers, on the other hand, and the whole Constitu- tional party, labored to keep up, in the midst of arms, the appearances, at least, of legal justice, and that favorite maxim of Englishmen, the supremacy of civil over military authority, rather more strictly, per- haps, than the nature of their actual circum- stances would admit. At the head of the former party stood the king's two nephews, Rupert and Maurice, the younger sons of the late unfortunate elector palatine, soldiers of fortune (as we may truly call them), of rude and imperious characters, avowedly despising the council and the common law, and supported by Charles, with all his inju- diciousness and incapacity for affairs, against the greatest men of the kingdom. Another very powerful and obnoxious faction was that of the Catholics, proud of their serv- ices and sacrifices, confident in the queen's protection, and looking at least to a full tol- eration as their just reward. They were the natural enemies of peace, and little less hated at Oxford than at Westminster.* * Clarendon, passim. May, 160. Baillic, i., 41G. At the beginning of the winter of 1643 the king took the remarkable step Rpy^jjsf of summoning the peers and com- lords and ,» , . , , , commoners moners of his party to meet rar- summoned liament at Oxford. This was ev- '•"y- idently suggested l)y the Constitutionalists with the intention of obtaining a supply by more regular methods than forced contribu- tion, and of op]iosing a barrier to the milita- ry and [jopish interests.* Whether it were equally calculated to further the king's cause may admit of some doubt. The Royalist convention, indeed, which name it ought rather to have taken than that of Parlia- ment, met in considerable strength at Ox- ford. Forty-three peers and one hundred and eighteen commoners subscribed a let- ter to the Earl of Essex, expressing their See, in the Somers Tracts, v., 493, a dialogue be- tween a gentleman and a citizen, printed at Ox- ford, 1643. Though of course a Royalist pamplilet, it shows the disunion that prevailed in that unfor- tunate party, and inveighs against the influence of the papists, in consequence of which the Marquis of Hertford is said to have decHned the king's serv- ice. Rupert is praised, and Newcastle struck at. It is written, on the whole, in rather a lukewarm style of loyalty. The Earl of Holland and Sir Ed- ward Dering gave out as their reason for quitting the king's side, that there was gi'eat danger of po- pery. This was much exaggerated : yet Lord Sunderland talks the same language. — Sidney Pa- pers, ii., 6G7. Lord Falkland's dejection of spirits, and constant desire of peace, must chiefly be as- cribed to his disgust with the councils of Oxford, and the greater part of those with whom he was associated. K quel clie piu ti gravera le spalle Sara la t ompagnia malvagia e ha, Nella quel tu cajrai in questa valie. We know too little of this excellent man, whose talents, however, and early pursuits do not seem to have particularly qualified him for public life. It is evident that he did not plunge into the loyal cause with all the zeal of his friend Hyde ; and the king, doubtless, had no gi-eat regard for the counsels of one who took so very dift'erent a view of some important matters from himself — Life of Clarendon, 48. He had been active against Straf- ford, and probably had a bad opinion of Laud. The prosecution of Finch for high treason he had him- self moved. In the Onnond Letters, i., 20, he seems to be struck at by one writing from Oxford, June 1, 1643: "God forbid that the best of men and kings be so used by some bad, hollow-hearted counselors, who affect too much the Parliamentaiy waj'. Many spare not to name them ; and I doubt not but you have heard their names." * It appears by the late edition of Clarendon, iv., 351, that he vi?ls the adviser of calling the Ox- ford Parliament. The former editors omitted his name. 332 CONSTITUTIOXAL HISTORY OF EXqLAND [Chap. X. anxiety for a treaty of peace ; twenty-nine of the former and fifty-seven of the latter, it is said, being then absent on the king's serv- ice, or other occasions.* Such a display of numbers, nearly double in one House, and nearly half in the other, of those who remained at Westminster, might have an effect on the nation's prejudices, and at least redeem the king from the charge of standing singly against his Parliament. But they came in no spirit of fervid loyalty, rather distrustful of the king, especially on the score of religion ; averse to some whom he had injudiciously raised to power, such as Digby and Cottington ; and so eager for pacification as not, perhaps, -to have been unwilling to purchase it by greater conces- sions than he could prudently make.f Peace, however, was by no means brought nearer by their meeting; the Parliament, jealous and alarmed at it, would never rec- ognize their existence ; and were so pro- * Pari. Hist, 218. The number who took tlie Covenant in September, 1C43, appears by a list of the Long ParUameut iu the same work, vol. ii., to be 236 ; but twelve of these are included in both lists, having gone afterward into the king's quar- ters. Tlie remainder, about one hundred, were either dead since the beginning of the troubles, or for some reason absented themselves from both as- semblies. Possibly the list of those who took the Covenant is not quite complete ; nor do I think the king had much more than about sixty peers on his side. The Parliament, however, could not have produced thirty. — Lords' Journals, Jan. 22, 1644. Whitelock, p. 80, says that two hundred and eighty ai>peared in the House of Commons, Jan., 1644, besides one hundred absent in the Parliament's service ; but this can not be quite exact. t Rushworth Abr., v., 266 and 296, where is an address to the king, intimating, if attentively con- sidered, a little apprehension of popery and arbi- trary power. Baillie says, iu one of his letters, "The first day the Oxford Parliament met, the king made a long speech; but many being ready to give in papers for the removing of Digby, Cot- tington, and others from court, the meeting was adjourned for some days," i., 429. Indeed, the res- toration of Cottington, and still more of Windebank, to the king's councils, was no pledge of Protestant or Constitutional measures. This opposition, so natural to Parliaments in any circumstances, dis- gusted Charles. In one of his letters to the queen, he congratulates himself on being "freed from the place of all mutinous motions, bis mongrel Parlia- ment." It may be presumed that some of those who obeyed the king's summons to Oxford were influenced less by loyalty than a consideration that their estates lay in parts occupied by his troops ; of comse tlie same is applicable to the Westmin- ster Parliament. : voked at their voting the lords and commons at Westminster guilty of treason, that, if I we believe a writer of some authority, the two Houses unanimously passed a vote on Essex's motion, summoning the king to ap- pear by a certain day.* But the Scots commissioners had force enough to turn aside such violent suggestions, and ulti- j mately obtained the concuirence of both Houses in propositions for a treaty. f They had begun to find themselves less likely to .sway the councils of Westminster than they had expected, and dreaded the rising as- cendency of Cromwell. The treaty was opened at Uxbridge in January, 1645. But neither the king nor his adversaries entered on it with minds sincerely bent on Treaty of peace : they, on the one hand, res- l-'^'^ni'se. olute not to swerve from the utmost rigor of a conqueror's terras, without having con- quered; and he, though more secretly, cher- ishing illusive hopes of a more triumphant restoration to power than any treaty could be expected to effect.J * Baillie, 441. I can find no mention of this in the Journals; but, as Baillie was then in London, and in constant intercourse with the leaders of Parliament, there must have been some foundation I for his statement, though he seems to have been inaccurate as to the fact of the vote. t Pari. Hist., 299, et post. Clarendon, v., 16. Whitelock, 110, &.c. Rush. Abr., v., 449, &c. i It was impossible for the king to avoid this treaty. Not only bis Oxford Parliament, as might naturally be expected, were openly desirous of peace, but a great part of the army had, in Au- gust, 1644, while opposed to that of Essex in the West, taken the extraordmary step of sending a letter to that general, declaring their intentions for the rights and liberties of the people, privileges of ParUament, and Protestant religion against popish innovations ; and that on the faith of subjects, the honor and reputation of gentlemen and soldiers, they would with their lives maintain that which his majesty should publicly promise in order to a bloodless peace ; they went on to request that Es- sex, with six more, would meet the general (Earl of Brentford) with six more, to consider of all means possible to reconcile the unhappy differ- ences and misunderstandings that have so long af- flicted the kingdom. — Sir Edward Walker's His- torical Discourses, 59. The king was acquainted with this letter before it was sent, but after some hands bad been subscribed to it. He consented, but evidently with great reluctance, and even in- dignation; as his own expressions testily in this passage of Walker, whose manuscript here, as in many other places, contains interlineations by Charles himself. It was doubtless rather in a mu- tinous spirit, which had spread widely through the army, and contributed to its utter ruin in the next ChA. I.— 1642-49.] FROM HENRY VII. TO GEORGE II. 333 The three leading topics of discussion , ., ., among the negotiators at Ux- ity of bridge were, the Church, the mi- agreement, jjjj^^ ^jjg g^j^jg Ireland. Bound by their unhappy Covenant, and watched by their Scots colleagues, the Eng- lish commissioners on the Parliament side demanded the complete establishment of a Pi-esbyterian polity, and the substitution of what was called the directory for the An- glican Liturgy. Upon this head there was little prospect of a union. The king had deeply imbibed the tenets of Andrew and Laud, believing an Episcopal government indispensably necessaiy to the valid admin- istration of the sacraments, and the very existence of a Christian Church. The Scots, and a portion of the English clergy, were equally confident that their Presbyte- rian form was established by the apostles as a divine model, from which it was unlaw- ful to depart.* Though most of the lai- ty in this kingdom entertained less narrow opinions, the Parliamentary commissioners thought the king ought rather to concede such a point than themselves, especially as his former consent to the abolition of Epis- copacy in Scotland weakened a good deal the force of his plea of conscience ; while the Royalists, even could they have per- suaded their master, thought Episcopacy, though not absolutely of divine right (a no- tion which they left to the churchmen), yet so highly beneficial to religion, and so im- portant to the monarchy, that nothing less than exti-eme necessity, or at least the campaign. I presume it was at the king's desire that the letter was signed bj' the general, as well as by Prince Maurice, and all the colonels, I be- lieve, in his army, to take ofi' the appearance of a faction ; but it certainly originated with Wilraot, Percy, and some of those whom he thought ill af- fected.— See Clarendon, iv., 527, et post. Rushw. Abr., v.. 348, 358. * The king's doctors. Steward and Sheldon, ar- gued at Uxbridge that Episcopacy was jure divino ; Henderson and others that Presbytery was so. — Whitelock, 132. These churchmen should have been locked up Uke a jurj', without food or fire, till they agreed. If we may believe Clarendon, the Earl of Loudon offered in the name of the Scots, that if the king would give up Episcopacy, they would not press any of the other demands. It is certain, however, that they would never have suffered him to become the master of the English Parliament ; and, if this offer was sincerely made, it must have been fiom a conviction that he could not become such. prospect of a signal advantage, could justify its abandonment. They offered, however, what in an earlier stage of their dissensions would have satisfied fihnost every man, that limited scheme of Episcopal hierfirchj', above mentioned as approved by Usher, rendering the bishop among his presbyters much like the king in Parliament, not free to exercise his jurisdiction, nor to confer or- ders without their consent, and offered to leave all ceremonies to the minister's dis- cretion. Such a compromise would proba- bly have pleased the English nation, averse to nothing in their established church ex- cept its abuses ; but the Parliamentary ne- gotiators would not so much as enter into discussion upon it.* They were liardly less unyielding on the subject of the militia. They began with a demand of naming all the commanders by sea and land, including the lord-lieutenant of Ireland and all governors of garrisons, for an unlimited time. The king, though not very willingly, proposed that the command should be vested in twenty persons, half to be named by himself, half by the Parlia- ment, for the term of three years, which he afterward extended to seven ; at the ex- piration of which time it should revert to the crown. But the utmost concession that could be obtained from the other side was to limit their exclusive possession of this power to seven years, leaving the mat- ter open for an ulterior arrangement by act of Parliament at their termination.! Even if this ti'eaty had been conducted between two belligerent states, whom rivalry or am- bition often excite to press every The Pariia- demand which superior power ■» *^ on unreason- can extort from weakness, there aWe terms. yet was nothing in the condition of the king's affairs which should compel him thus to pass under the yoke, and enter his capital as a prisoner. But we may also remark that, according to the great principle, that the English Constitution, in all its component parts, was to be maintained by both sides in this contest, the question for Parliament * Rushworth, Wliitelock, Clarendon. The latter tells in his life, which reveals several things not found in his history, that the king was veiy angiy with some of his Uxbridge commissioners, espe- cially Mr. Bridgman, for making too great conces- sions with respect to Episcopacy. He lived, how- ever, to make himself much greater. t Whitelock, 133. 334 CONSTITUTIONAL HISTORY OF ENiGLAND [Chap. X. was not what their militaiy advantages or resources for war entitled them to ask, but what was required for the due balance of power under a limited monarchy. They could rightly demand no further concession fi'om the king than was indispensable for their own and the people's security ; and I leave any one who is tolei'ably acquainted with the state of England at the beginning of 1645, to decide whether their privileges and the public liberties incurred a greater lisk, by such an equal partition of power over the sword as the king proposed, than his prerogative and personal freedom would have encountered by abandoning it altogeth- er to their discretion. I am far from think- ing that the acceptance of the king's propo- sitions at Uxbridge would have restored tranquillity to England. He would still have repined at the limitations of monarchy, and others would have conspired against its ex- istence. But of the various consequences which we may picture to ourselves as ca- pable of resulting from a pacification, that which appears to me the least likely is, that Charles should have re-established that ar- bitraiy power which he had exercised in the earlier period of his reign. Whence, in fact, was he to look for assistance ? Was it with such creatures of a court as Jermyn or Ashburnham, or with a worn-out veteran of office, like Cottington, or a rash adventur- er, like Digby, that he could outwit Vane, or overawe Cromwell, or silence the press and tlie pulpit, or strike with panic the stern Puritan and the confident fanatic? Some there were, beyond question, both soldiei's and courtiers, who hated the veiy name of a limited monarchy, and nmrmured at the constitutional language which the king, from the time he made use of the pens of Hyde and Falkland, had systematically employed in his public declarations.* But it is as certain that the great majority of his Ox- ford Parliament, and of those upon whom he must have depended, either in the field or in council, were apprehensive of any vic- tory that might render him absolute, as that * The creed of this party is set forth in the Be- hemoth of Hobbes ; which is, in other words, the application of those principles of government which are laid down iu tlie Leviathan, to the Constitu- tion and state of England in the civil war. It is republished in Baron Maseres's Tracts, ii., 5C5, 567. Sir Philip Warwick, in his Memoirs, 198, hints something of the same kind. Essex and Manchester were unwilling to conquer at the expense of the Constitution.* The Catholics, indeed, generally speaking, would have gone great lengths in asserting his authority. Nor is this any reproach to that body, by no means naturally less at- tached to their country and its liberties than other Englishmen, but driven by an unjust persecution to see their only hope of emancipation in the nation's servitude. They could not be expected to sympathize in that patriotism of the seventeenth cen- tury, which, if it poured warmth and radi- ance on the Protestant, was to them as a devouring fire. But the king could have made no use of the Catholics as a distinct body for any political purpose, without uniting all other parties against him. He had already given so much offense, at the commencement of the war, by accepting the services which the Catholic gentry were for- ward to offer, that instead of a more manly justification, which the temper of the times, he thought, did not permit, he had recourse to the useless subterfuges of denying or ex- tenuating the facts, and even to a strangely improbable recrimination ; asserting, on sev- eral occasions, that the number of papists in the Parliament's army was much greater than in his own.f * Warburton, iu the notes subjoined to the late edition of Clarendon, vii., 563, mentions a conver- sation he had with the Duke of Argyle and Lord Cobham (both soldiers, and the fii'st a distinguished one) as to the conduct of the king and the Earl of Essex after the battle of Edgehill. They agreed it was inexplicable on both sides by any mihtaty principle. Warburton explained it by the unwill- ingness to be too victorious, felt by Essex himself, and by those whom the king was forced to consult. Father Orleans, in a passage with which the bishop probably was acquainted, confirms this ; and his authority is very good as to the secret of the court. Rupert, he says, proposed to march to London. "Mais I'esprit Auglois, qui ne se dement point meme dans les plus attaches a la royante, Tesprit Anglois, dis-je, toujours entete de ces libertez si funestes au repos de la nation, porta la plus grande partie da cousei! a s'opposer a ce desseiu. Le pretexte fut qu'il etoit dangereux pour le roy de I'entreprendre, et pour la ville que le Prince Robert I'executast, jeune comme il etoit, emporte, et ca- pable d'y mettre le feu. La vraie raison etoit qu'ils craignoieut que, si le roy entroit dans Londres les armes a la main, il ue pretendist sur la nation une espece de droit de couquete, qui le rendist trop absolu." — Revolut. d'Angleterre, iii., 104. t Rush worth Abr., iv., 550. At the very time that he was publicly denying his employment of papists, he wrote to Newcastle, commanding him ChA. I.— 1642-1!).] FROM HEXRY VII. TO GEORGE II. 335 It may still, indeed, bo questioned wheth- er, admitting the pi-opositions tendered to the king to have been unreasonable and in- secure, it might not have been expedient, in the perilous condition of his affairs, rather to have tried the chances of peace than those of war. If he could have determined frankly and without reserve to have re- linquished the Church, and called the lead- ers of the Presbyterian party in both Houses to his councils, it is impossible to prove that he might not both have regained his power over the militia in no long course of time, and prevailed on the Parliament to consent to its own di.ssolution. The dread that party felt of the Republican spirit rising among the Independents would have in- duced them to place in the hands of any sovereign they could ti'ust full as much au- thority as our Constitution pei'mits. But no one who has paid attention to the history of that period will conclude that they could have secured the king against their com- mon enemy, had he even gone wholly into their own measures.* And this were to suppose such an entire change in his char- acter and ways of thinking as no external circumstances could produce. Yet his pros- pects from a continuance of hostilities were so unpromising that most of the Royalists would probably have hailed his almost un- conditional submission at Uxbridge. Even to make use of all his subjects' sei'vices, without examining their consciences, except as to loyalty. — Ellis's Letters, iii., 291, from an original in the Museum. No one can rationally blame Charles for any thing in this but his inveterate and useless habit of falsehood. — See Clarendon, iii., 610. It is probable that some foreign Catholics were in the Parliament's service. But Dodd says, vpith great appearance of ti'uth, that no one English gen- tleman of that persuasion was in arms on their side. — Church History of Engl., iii., 28. He reports as a matter of hearsay, that, out of about five hundred gentlemen who lost their lives for Charles in the civil war, one hundred and ninety-four were Cath- olics. They were, doubtless, a very powerful fac- tion in the court and army. Lord Spencer (after- ward Earl of Sunderland), in some remarkable let- ters to his wife from the king's quarters at Shrews- bury, in September, 16-12, speaks of the iusolency of the papists with great dissatisfaction. — Sidney Papers, ii., 667. * It can not be doubted, and is admitted in a re- markable conversation of Hollis and Whitelock with the king at Oxford in November, 1614, that the exorbitant terms demanded at Uxbridge were carried by the violent party, who disliked all paci- fication.— Whitelock, 113. the steady Richmond and Southampton, it is said, implored him to yield, and depre- cated his misjudging confidence in promises of foreign aid, or in the successes of Mon- trose.* The more lukewai'm or discon- tented of his adherents took this opportu- nity of abandoning an almost hopeless cause ; between the breach of the treaty of Ux- bridge and the battle of Naseby, several of the Oxford peers came over to the Parlia- ment, and took an engagement never to bear arms against it. A few instances of such defection had occurred before. f It remained only, after the rupture of the treaty at Uxbridge, to ti'y once Miseries of more the fortune of war. The people, both in the king's and Parliament's quarters, but especially the former, heard with dismay that peace could not be at- tained. Many of the perpetual skirmishes and captures of towns which made every man's life and fortune precarious, have found no place in general history, but may be traced in the journal of Whitelock, or in the Mercuries and other fugitive sheets, great numbers of which are still extant ; and it will appear, I believe, from these, that scarcely one county in England was ex- empt, at one time or other of the Avar, from becoming the scene of this unnatural con- test. Compared, indeed, with the civil wars in France in the preceding centm-y, there had been fewer acts of enormous cru- elty, and less atrocious breaches of public faith; but much blood had been wantonly shed, and articles of capitulation had been very indifl'erently kept. " Either side," says Clarendon, "having somewhat to ob- ject to the other, the requisite honesty and justice of observing conditions was mutual- ly, as it were by agi'eement, for a long time * Baillie, ii., 91. He adds, "That which has been the greatest snare to the king is the unhappy success of Monti'ose in Scotland." There seems, indeed, gi-eat reason to think that Charles, always sanguine, and incapable of calculating probabilities, ^was unreasonably elated by victories from which no pennanent advantage ought to have been ex- pected. Burnet confirms this on good authority. — Introduction to History of his Times, 51. t Whitelock, 109, 137, 142. Rushw. Abr., v., 163. The first deserter (except, indeed, the Earls of Hol- land and Bedford) was Sir Edward Bering, who came into the Parliament's quarters in Feb., 1644. He was a weak man of some learning, who had already played a very changeable part before the war. 336 CONSTITUTIONAL HISTORY OF ENGI^AND [Chap. X. violated.'"* The Royalist army, especial- ly the cavaliy, commauded by men either wholly unpi-incipled, or at least regardless of the people, and deeming them ill aff ected, the Princes Rupert and Maurice, Goring and Wilmot, lived without restraint of law or militaiy discipline, and committed every excess even in friendly quarters. f An os- tentatious dissoluteness became character- istic of the cavalier, as a formal austerity was of the Pm-itan ; one spoiling his neigh- bor in the name of God, the other of the * A flagrant instance of this vras the plonder of Bristol by llupert, in breach of tlie capitulation. I suspect that it was the policj- of one party to ex- aggerate the cruelties of the other; hut the short caiTatives dispersed at the time give a vsretched picture of slaughter and devastation. t Clarendon and Whitelock, passim. Baxter's Life, p. 44, 5.5. The license of Maurice's and Go- ring's annies in the West first led to the defensive insurrection, if so it should be called, of the club- men ; that is, of yeomen and couutiy people, anned only with clubs, who hoped, by numbers and con- cert, to resist efTectually the military marauders of both parties, declaring themselves neither for king nor Parliament, but for their own libeity and prop- erty. They were, of course, regarded with dislike on both sides ; by the king's party when they first appeared in 1644, because they crippled the royal ai-my's operations, and still more openly by the Parliament next year, when they opposed Fair- fax's endeavor to caiTj' on the war in the counties bordering on the Severn. They ai)pcared at times in great strength ; but the want of anus and disci- pline made it not veiy difficult to suppress them.— Clarendon, v., 197. Whitelock, 137. Pari. Hist., 379, 390. The king himself, whose disposition was veiy harsh and severe, except toward the few he took into his bosom, can hardly be exonerated from a responsibility for some acts of inhumanity (see Whitelock, 67, and Somers Tracts, iv., 502 ; v., 369 ; Maseres's Tracts, i., 144, for the ill ti-eatment of prisoners) ; and he might probably have checked the outrages which took place at the storming of Leicester, where he was himself present. Cer- tainly no imputation of this nature can be laid at the door of the Parliamentai-y commanders, though some of them were guilty of the ati-ocity of putting their Irish prisoners to death, in obedience, how- ever, to an ordinance of Parliament. — Pari. Hist., iii., 295 ; Kushworth' s Abridgment, v., 402. It passed October 24, 1644. and all remissness in ex- ecuting it was to be reckoned a favoring of the Irish rebellion. When we read, as we do perpet- ually, these violent and barbarous proceedings of the Parliament, is it consistent witli honesty or hu- manity to hold up that assembly to admiration, while the faults on the king's side are studiously- aggravated ? The partiality of Oldmixon, Harris. Macaulay, and now of Mr. Brodie and Mr. Godwin, is full as glarmg, to say the very least, as that of Hume. king. The Parliament's troops were not quite free from these military vices, but dis- played them in a much less scandalous de- gi'ee, owing to their more religious habits and the influence of their Presbyterian chap- lains, to the better example of their com- manders, and to the comparative, though not absolute, punctuality of their pay.*" But this pay was raised through unheard-of as- sessments, especially an excise on liquoi-s, a new name in England, and thi'ough the se- questration of the estates of all the king's adherents : resources, of which he also had availed himself, pai'tly by the rights of war, ])artly by the grant of his Oxford Parlia- ment.t A war so calamitous seemed likely to en- dure till it had exhausted the nation. With ail the Pai-liament's superiority, they had yet to subdue nearlj' half the kingdom. The Scots had not advanced southward, con- tent with reducing Newcastle and the rest of the northern counties. These they ti'eated almost as hostile, without distinction of peu-ties, not only exacting contributions, but committing, unless they are much be- lied, great excesses of indiscipline ; their Presbyterian gravity not having yet over- come the ancient national propensities. t In * Clarendon and Baxter. t The excise was first imposed by an ordinance of both Houses in July, 1643 (Husband's Collection of Ordinances, p. 267), and aftei-ward by the king's convention at Oxford. See a \-iew of the financial expedients adopted by both parties in Lingard, x., 243. The plate brought in to the Parliament's commissioners at Guildhall in 1642, for which they allowed the value of the silver, and one shilling per ounce more, is stated by Neal at £1,267,326, an extraordinary proof of the wealth of London ; yet I do not know his authoritj", though it is prob- ably good. The University of Oxford gave all they had to the king, but could not, of course, vie with the citizens. The sums raised within the Parliament's quar- ters, from the beginning of the war to 1647, are reckoned in a pamphlet of that year, quoted in Sin- clair's Hist, of the Revenue, i., 2i?3, at £17,512,400. But, on reference to the ti-act itself, I find tliis written at random. The contributions, however, were really very great ; and if we add those to the king, and the loss by waste and plunder, we may form some judgment of the effects of the civil war. t The Independents raised loud clamors against the Scots army ; and the northern counties naturally complained of the burden of supporting them as well as of their excesses. Many passages in White- lock's joui-nal during 1645 and 1546 relate to this. HoUis endeavors to deny or extenuate the charges ; but he is too prejudiced a writer, and Baillie him- \ Cha. I.— 1642-19.] the midland and western parts the king had just the worse, without having sustained ma- terial loss ; and another summer might pass away in marches and countermarches, in skirmishes of cavaliy, in tedious sieges of paltry fortifications, some of them mere country houses, which nothing but an amaz- ing deficiency in that branch of military Essex and Science could have rendered ten- Manchester able. This proti'actiou of the suspected of ,11 • • » lukewarm- war had long given rise to no un- natural discontent with its man- agement, and to suspicions, first of Essex, then of Manchester and others in command, as if they were secretly reluctant to com- plete the triumph of their employers. It is, indeed, not impossible that both these peei-s, especially the former, out of their desire to see peace restored on terms com- patible with some degree of authority in the crown, and with the dignity of their own order, did not always press their ad- vantages against the king as if he had been a public enemy.* They might have thought BC-lf acknowledges a great deal. — ^Vol. ii., p. 138, 142, 106. * Tlie chief imputation against Manchester was for not following up his victory in the second battle of Newbury, with which Ciomwell openly taxed him. — See Ludlow, i., 133. There certainly ap- pears to liave been a want of military energy on this occasion ; but it is said by BaiUie (ii., 76) that all the general officers, Cromwell not excepted, concurred in Manchester's determination. Essex had been suspected from the time of the affair at Brentford, or, rather, from the battle gf Edgehill (Baillie and Ludlow) ; and his whole conduct, ex- cept in the celebrated march to relieve Gloucester, confirmed a reasonable distrust either of his mili- tary talents, or of his zeal in the cause. " He loved monarchy and nobility," says Wliitelock, p. 108, " and dreaded those who had a design to de- stroy both." Yet Essex was too much a man of honor to enter on any private intrigues with the king. The other peers employed under the Par- liament, Stamford, Denbigh, Willoughby, were not successful enough to redeem the suspicions that fell upon their zeal. All our Republican writers, such as Ludlow and Mrs. Hutchinson in that age, Mrs. Macaulay and Mr. Brodie more of late, speak acrimoniously of Essex. " Most will be of opinion," says Mr. B. (History of British Empire, iii., 565), " that as ten thousand pounds a year out of the sequestered lands were settled upon him for his services, he was rewarded infijiitely beyond his merits." Tlie reward was doubtless magnificent; but the merit of Essex was this, that he made himself the most prominent object of vengeance in case of failui-e. by- taking tlie command of an army to oppose the king in person at Edgehill : a command of which no Y 337 that, having drawn the sword avowedlj' for the preseiTation of his person and dignity as much as for the rights and liberties of the people, they were no further bound by their trust than to render him and his ad- herents sensible of the impracticability of refusing their terms of accommodation. There could, however, be no doubt that Fairfax and Cromwell were far self-denying superior, both by their own tal- Ordinance, ents for war and the discipline they had in- troduced into their army, to the earlier Par- liamentary commanders, and that, as a mil- itary arrangement, the Self-denj'ing Ordi- nance was judiciously conceived. This, which took from all members of both Houses their commands in the army, or civil em- ploj'ments, was, as is well known, the first gi-eat victory of the Independent party which had grown up lately in Parliament under Vane and Cromwell.* They earned another measure of no less importance, col- lateral to the former — the new modeling, as it was called, of the army ; reducing it to twenty-one or twenty-two thousand men ; discharging such officers and soldiers as were i-eckoned unfit, and completing their regiments by more select levies. The or- dinance, after being once rejected by the Lords, passed their House with some mod- ifications in April, t But many joined them other man in his rank was capable, and which could not, at that time, have been intrusted to any man of inferior rank without dissolving the whole confederacy of the Parliament. It is to be observed, moreover, that the two bat- tles of Newbury, like that of Edgehill, were by no means decisive victories on the side of the Parlia- ment; and that it is not clear whether either Es- sex or Manchester could have pushed the king much more than they did. Even after Naseby, his party made a pretty long resistance, and he had been as much blamed as they for not pressing his advantages with vigor. * It had been voted by the Lords a year before, Dec. 12, 1643, " That the opinion and resolution of this House is from henceforth not to admit the members of either house of Parliament into any place or office, excepting such places of great trust as are to be executed by persons of eminency and known integrity, and are necessary for the govern- ment and safety of the kingdom." But a motion to make this resolution into an ordinance was car- ried in the negative. — Lords' Journals. Pari. Hist., 187. The first motion had been for a resolution without this exception, that no place of profit should be executed by the members of either House. t Whitelock, p. 118, 120. It was opposed by him, but supported by Pierpoint, who carried it up FROM HENRY VIL TO GEORGE IL 338 CONSTITUTIONAL HISTOEY OF ENGLAND [Chap. X. on this occasion for those military reasons which I have mentioned, deeming almost any termination of the war better than its continuance. The king's rejection of their terms at Uxbridge had disgusted, however unreasonably, some of the men hitherto accounted moderate, such as the Earl of Northumberland and Pierpoint; who, deeming reconciliation impracticable, took from this time a different line of politics from that they had previously followed, and were either not alive to the danger of new- modeling the army, or willing to hope that it might be disbanded before that danger could become imminent. From Fairfax, too, the new general, they saw little to feai" and much to expect ; while Cromwell, as a member of the House of Commons, was positively excluded by the ordinance itself. But, through a successful inti-igue of his friends, this great man, aheady not less form- idable to the Presbyterian faction than to the Royalists, was permitted to continue lieutenant-general.* The most popular jus- tification for the Self-denj'ing Ordinance, and yet, perhaps, its real condemnation. Battle of '^^^ soon found at Naseby ; for Naseby. there Faiifax and Cromwell tri- umphed not only over the king and the mon- archy, but over the Parliament and the na- tion. It does not appear to me that a brave and Desperate prudent man, in the condition of thek'ng^saf- Charles the First, had, up to that fairs. unfortunate day, any other alter- to the Lords. The Lords were chiefly of the Pres- "byterian partj-, though Say, Wharton, and a few more were connected with the Independents. They added a proviso to the ordinance raising forces to he commanded by Fairfax, that no officer refasingthe Covenant should be capable of serving, which was thrown out in the Lower House. But another proviso was carried in the Commons by 82 to 63, that the officers, though appointed by the general, should be approved by both houses of Parliament. Cromwell was one of the tellers for the minority. — Commons' Journals, Feb. 7 and ]3, 164.5. In the original ordinance the members of both Houses were excluded during the war ; but in the second, which was carried, the measure was not made prospective. This, which most historians have overlooked, is well pointed out by Mr. God- win. By virtue of this alteration, many officers were elected in the course of 1645 and 1646 ; and the effect, whatever might be designed, was vei*y advantageous to the Republican and Independent factions. * Whitelock, p. 145. native than a vigorous prosecution of the war, in hope of such decisive success as, though hardly within probable calculation, is not unprecedented in the changeful tide of fortune. I can not, therefore, blame him either for refusing unreasonable terms of accommodation, or for not relinquishing al- together the contest; but after his defeat at Naseby, his affairs were, in a military sense, so in-etrievable, that in prolonging the war with as much obstinacy as the broken state of his party would allow, he displayed a good deal of that indifference to the sufferings of the kingdom and of his own adherents which has been sometimes im- puted to him. There was, from the hour of that battle, one only safe and honorable course remaining. He justly abhoiTed to reign, if so it could be named, the slave of Parliament, with the sacrifice of his con- science and his friends. But it was by no means necessary to reign at all. The sea was for many months open to him ; in France, or, still better, in Holland, lie would have found his misfortunes respected, and an asylum in that decent privacy which be- comes an exiled sovereign. Those veiy hopes which he too fondly cherished, and which lured him to destruction — hopes of regaining power through the disunion of his enemies — might have been entertained with better reason, as with greater safety, in a foreign land. It is not, perhaps, very prob- able that he would have been restored ; but his restoration in such circumstances seems less desperate than through any treaty that he could conclude in captivity at home.* Whether any such thoughts of abandon- ing a hopeless contest were ever entertained by the king during this particular period, it is impossible to pronounce ; we should in- fer the contrary from all his actions. It must be said that many of his counselors seem to have been as pertinacious as him- self, having strongly imbibed the same san- guine spirit, and looking for deliverance, ac- * [It was the opinion of Montreuil, that the plan of flight which the king was meditating before he took refuge with the Scots " is by far the best, and in even,' point of view necessarj' ; for the Parlia- ment will by that time have fallen into dissensions, and the throne will be far more easily restored if the king come back to it from abroad than if he were to issue from a prison. I only fear that flight will, perhaps, be no longer possible." Jan. 10 1646.— Raumer, p. 340.] Cha. I.— 1G42-49.] FROM HENRY VII. TO GEORGE TT. 339 cording to their several fancies, from the ambition of Cromwell or the discontent of the Scots ; but, whatever might have been the king's disposition, he would not have dared to retire from England. That sinis- ter domestic rule, to which he had so long been subject, controlled every action. Care- less of her husband's happiness, and already attached, probably, to one whom she after- ward married, Henrietta longed only for his recovery of a power which would become her own.* Henc6, while she constantly laid her injunctions on Charles never to con- cede any thing as to the militia or the Irish Catholics, she became desirous, when no other means presented itself, that he should sacrifice what was still nearer to his heart, the Episcopal church-government. The Queen-regent of France, whose sincei'ity in desiring the king's restoration there can be no ground to deny,t was equally per- * Whether there are sufficient grounds for con- cluding that Henrietta's connection with Jennyn was criminal, I will not pretend to decide ; though Warburton has settled the matter iu a veiy sum- mary style. — See one of his notes on Clarendon, vol. vii., p. 636. But I doubt whether the bishop had authority for what he there says, though it is likely enough to be true. — See, also, a note of Lord Dartmouth on Burnet, i., 63. t Clarendon speaks often in his History, and still more frequently in his private letters, with great resentment of the conduct of France, and sometimes of Holland, during our civil wars. I must confess that I see nothing to warrant this. The States-General, against whom Charles had so shamefully been plotting, interfered as much for the purpose of mediation as they could with the slight- est prospect of success, and so as to give offense to the ParUament (Rushworth Abridged, v., 567; Baillie, ii., 78; Whitelock, 141, 148; Hanis's Life of Cromwell, 246) ; and as to France, though Kicheliea had instigated the Scots malcontents, and possibly those of England, yet after his death in 1642, no sort of suspicion ought to lie on the French government ; the whole conduct of Anne of Austria having been friendly, and both the mis- sion of Harcourt in 1643, and the present negotia- tions of Montreuil and Bellievre, perfectly well in- tended. That Mazarin made promises of assistance which he had no design, nor perhaps any power, to fulfill, is true ; but this is the common trick of Buch statesmen, and argues no malevolent purpose. But Hyde, out of his just dislike of the queen, hat- ed all French connections, and bis passionate loy- alty made him think it a crime, or at least a piece of base pusillanimity, in foreign states, to keep on any terms with the rebellious Parliament. The case was altered after the retirement of the re- gent Anne from power: Mazarin's latter conduct was, as is well known, exceedingly adverse to the royal cause. suaded that he could hope for it on no less painful conditions. They reasoned, of course, very plausibly from the gi"eat prec- edent of flexible consciences, tlie recon- ciliation of Henrietta's illustrious father to the Catholic Church. As he could neither have regained his royal power, nor restored peace to France without this compliance with his subjects' prejudices, so Charles could still less expect, in circumstances by no means so favorable, that he should avoid a concession, in the eyes of almost all men but himself, of incomparably less importance. It was in expectation, or, per- -j-j^^ ^-^^ haps, rather in the hope, of this throws him- sacrifice, that the French envoy, hands of the Montreuil, entered on his ill-star- red negotiation for the king's taking shelter with the Scots army ; and it must be con- fessed that several of his best friends were hardly less anxious that he should desert a church he could not protect.* They doubt- ed not, reasoning from their own characters, that he would ultimately give way; but that Charles, unchangeably resolved on this headjf should have put himself in the power The account given by Mr. D'Israeli of Tabran's negotiations in the fifth volume of his Commentaries on the Reign of Charles I., though it does not con- tain any thing very important, tends to show Maz- arin's inclination toward the royal cause in 1644 and 1645. * Colepepper writes to Asliburnham, in Febru- ary, 1646, to advance the Scots treaty with all his power. " It is the only way left to save the crown and the kingdom ; all other ti-icks will deceive you. .... It is no time to dally on distinctions and crit- icisms. All the world will laugh at them when a crown is in question." — Clar. Papers, ii., 207. The king had positively declared his resolution not to consent to the establishment of Presbytery. This had so much disgusted both the Scots and English Presbyterians (for the latter had been con- cerned in the negotiation), that Montreuil wrote to say he thought they would rather make it up with the Independents than treat again. " De sorte qu'il ue faut plus marchander, et que V. M. se doit hater d'envoyer aux deux Parlemens son consenti- ment aux trois propositions d'Uxbridge ; ce qu'e- tant fait, elle sera surete dans I'armee d'Ecosse" (15th Jan., 164G).— P. 211. t I assure you," he writes to Capel, Hopton, &c., Feb. 2, 1646, " whatever paraphrases or prophecies may be made upon my last message (pressing the two Houses to consent to a personal treaty), I shall never part with the Church, the essentials of my crown, or my friends." — P. 206. Baillie could not believe the report that the king intended to take refuge in the Scots anny, as " there would be no shelter there for him unless he would take the 340 CONSTITUTIONAL HISTOEY OF ENGLAND [Chap. X. of men fully as bigoted as himself (if he really conceived that the Scots Presbyteri- ans would shed their blood to re-establish the prelacy they abhorred), was an addi- tional proof of that delusion which made him fancy that no government could be estab- lished without his concurrence ; unless, in- deed, we should rather consider it as one of those desperate courses, into which he who can foresee nothing but evil from eveiy calculable line of action will sometimes plunge at a venture, borrowing some ray of hope from the uncertainty of its conse- quences.* It was an inevitable effect of this step, that the king surrendered his personal lib- erty, which he never afterward recovered. Considering his situation, we may at first think the Parliament tolerably moderate in oflering nearly the same terms of peace at Newcastle which he had rejected at Ux- bridge ; the chief difference being, that the power of the militia which had been de- manded for commissioners nominated and removable by the two Houses during an in- definite period, was now proposed to reside in the two Houses for the space of twenty years, which rather more unequivocally in- dicated their design of making the Parlia- ment perpetual. f But, in fact, they had so abridged the royal prerogative by their for- mer propositions, that, preserving the de- cent semblance of monarchy, scarce any thing further could be exacted. The king's Covenant, and follow the advice of his Pariiament. Hard pills to be swallowed by a willful and an un- advised prince." — Vol. ii., p. 203. * Not long after the king had taken shelter with the Scots, he wrote a letter to Ormond, which was intercepted, wherein he assured him of his expec- tation that their army would join with his, and act in conjunction with Montrose, to procure a happy peace and the restoration of his rights. — White- lock, p. 208. Charles had bad luck with his letters, ■which fell, too frequently for his fame and inter- ests, into the hands of his enemies. But who, save this most ill-judging of princes, would have en- tertained an idea that the Scots Presbyterian army would co-operate with Montrose, whom they ab- horred, and very justly, for his ti'eachery and cni- eltj', above all men living ? t Pari. Hist, 499. Wliitelock, 215, 218. It was voted, 17th of June, that after tlicse twenty years, the king was to exercise no power over the mili- tia without the previous consent of Pai'liament, who were to pass a bill at any time respecting it, if tliey should judge the kingdom's safety to be concerned, which should be valid without the king's assent. — Commons' Journal. circumstances were, however, so altered, that by persisting in hie refusal of those propositions, he excited a natural indigna- tion at his obstinacy in men who felt their own right (the conqueror's right) to dictate terms at pleasure. Yet this might have had a nobler character of firmness if, during all the tedious parlies of the last three years of his life, he had not, by tardy and partial con- cessions, given up so much of that for which he contended, as rather to appear like a ped- ler haggling for the best bargain than a sov- ereign unalterably determined by conscience and public spirit. We must, however, for- give much to one placed in such unparalleled difficulties. Charles had to con- Charles's tend, during his unhapy resi- struggles to dence at Newcastle, not merely Episcopacy, with revolted subjects in the "f^'^^t the advice of the pride of conquest, and with bigot- queea and ed priests, as blindly confident in one set of doubtful propositions as he was in the opposite, but with those he had trusted the most and loved the dearest. We have in the Clarendon State Papers a series of letters from Paris, written, some by the queen, others jointly by Colepepper, Jer- myn, and Asliburnham, or the two former, m-ging him to sacrifice Episcopacy as the necessary means of his restoration. We have the king's answers, that display, in an interesting manner, the struggles of his mind under this severe trial.* No candid reader, I think, can doubt that a serious sense of obligation was predominant in Charles's persevering fidelity to the English Cliurch ; for though he often alleges the in- compatibility of Presbyterianism with mon- archy, and says very justly, " I am most confident that religion will much sooner re- gain the militia than tlie militia will relig- ion,"f yet these arguments seem rather in- ' P. 248. "Show me any precedent," he says in another place, " wherever Presbyterian govern- ment and regal was together without perpetual rebellions, which was the cause that necessitated the king my father to change that government in Scotland. And even in France, where they are but on tolerance, which in likelihood shall cause moderation, did they ever sit still so long as they had power to rebel ? And it can not be otherwise ; for the ground of their doctrine is anti-monarchic- al."—P. 260. See, also, p. 273. t " The design is to unite you with the Scots nation and the Presbj-teriaus of England against the anti-monai"chical party, the Independents. . . . If by conscience it is intended to assert iJiat Epis- Cha. I.— 16-12-'19.] FROM HENRY VII. TO GEORGE IT. 341 tended to weigh ■with those who slighted his 1 scruples than the paramount motives of his heart. He could hardly avoid perceiving that, as Colepepper told him in his rough style, the question was, whether he would choose to be a king of Presbytery or no king. But the utmost length which he could prevail on himself to go was to offer the continuance of the Presbyterian disci- pline, as established by the Parliament, for three years, during which a conference of divines might be had, in order to bring about II settlement. Even this he would not pro- pose without consulting two bishops, Juxon and Duppa, wliether he could lawfully do so. They returned a very cautious answer, assenting to the proposition as a temporary measure, but plainly endeavoring to keep the king fixed in his adherence to the Epis- copal Chui-ch.* copacy is jure diviuo exclusive, whereby no Prot- estant, or, rather, Christian church, can be acknowl- edged for such without a bishop, we must therein crave leave wholly to difler. And if we be in an error, we are in good conipanj-, there not being, as we have cause to believe, six persons of the Prot- estant religion of the other ojjinion Come, the question in short is, whether you will choose to be a king of Presbytery, or no king, and yet Presbytery or perfect Independency to be?" — P. 2fi3. They were, however, as much against his giv- ing up the militia, or his party, as in favor of his abolishing Episcopacy. Charles was much to be pitied throughout all this period ; none of his correspondents understood the state of affairs so well as himself: he was with the Scots, and saw what they were made of, while the others fancied absurdities through their own private self-interested views. It is very cer- tain that by sacrificing Episcopacy he would not have gained a step with the Parliament ; and as to reigning in Scotland alone, suspected, insulted, de- graded, this would, perhaps, just have been possi- ble for himself; but neither Henrietta nor her friends would have found an asylum there. • Juxon had been well treated by the Parlia- ment, in consequence of his pnident abstinence from politics and residence in their quarters. He dates his answer to the king from his palace at Fulham. He was, however, dispossessed of it not long after by virtue of the ordinance directing the sale of bishops' lands, Nov. 16, 1646. — Pari. Hist, 528. A committee was appointed, Nov. 2, 1646, to consider of a fitting maintenance to be al- lowed the bishops, both those who had remained under the Parhament, and those who had deserted it. — Journals. I was led to this passage by Mr. Godwin, Hist, of Commonwealth, ii.,250. Wheth- er any thing further was done, I have not observed ; bat there is an order in the Journals, 1st of May, 1647, that whereas divers of the late tenants of Dr. Juxon, late bishop of London, have refused to pay Pressed thus on a topic, so important,' above all others, in his eyes, the king gave a proof of his sincerity by greater conces- sions of power than he had ever intended. Ho had some time before openly offered to let the Parliament name all the commis- sioners of the militia for seven years, and all the officers of state and judges to hold their places for life.* He now empowered a secret agent in London, Mr. William Mur- ray, privately to sound the Parliamentary leaders, if they would consent to the estab- lishment of a moderated Episcopacy after three or five years, on condition of his de- parting from the right of the militia during his whole life.f This dereliction of the main ground of contest brought down the queen's indignation on his head. She wrote several letters, in an imperious and unfeel- ing tone, declaring that she would never set her foot in England as long as the Parlia- ment should exist-t Jcrmyn and Colepep- per assumed a style hardly less dictatorial in their letters,§ till Charles withdrew the proposal, which Murray seeins never to have communicated. II It was, indeed, the the rents or other suras of money due to him as bish- op of London at or before the 1st of November last, the trustees of bishops' lands are directed to receive the same, and pay them over to Dr. Juxon. Though this was only justice, it shows that justice was done, at least in this instance, to a bishop. Juxon must have been a very pmdent and judicious man, though not learned, which probably was all the better. * Jan. 29, 1646. Pari. Hist, 436. Whitelock says, " Many sober men and lovers of peace were earnest to have comjjlied with what the king pro- posed ; but the major part of the House was con- traiy, and the new-elected members joined those who were averse to compliance." — P. 207. t Clar. Papers, p. 275. t Clar. Papers, p. 294, 297, 300. She had said as much before (King's Cabinet Opened, p. 28) ; so that this was not a burst of passion. " Conservez- vous la militia," she says in one place, p. 271, " et n'abandonnez jamais ; et par cela tout rcvicndra.'' Charles, however, disclaimed all idea of violating his faith in case of a treaty, p. 273 ; but observed as to the militia, with some truth, that " the retain- ing of it is not of so much consequence — I am far from saying, none — as is thought, without the con- currence of other things, because the militia here is not, as in France and other countries, a formed powerful strength ; but it serves more to hold oflf ill than to do much good ; and certainly, if the pul- pits teach not obedience (which will never be, if Presbyterian goveniment be absolutely settled), the crown will have little comfort of the militia." — P. 296. § P. 301. II P. 313. ■ 342 COXSTITUTIONAL HISTORY OF ENGLAND [Chap. X, evident effect of despair and a natural wea- riness of his thorny crown. He now began to express serious thoughts of making his escape,* and seems even to hint more than once at a resignation of his government to the Prince of Wales; but Henrietta for- bade him to think of an escape, and alludes to the other with contempt and indignation. f With this selfish and tj'rannical woman, that life of exile and privacy which religion and Bad condact letters would have rendered tol- of the queen, erable to the king, must have been spent in hardly less bitterness than on a dishonored throne. She had displayed in France as Uttle virtue as at home; the small resources which should have been frugally dispensed to those who had lost all for the royal cause, were squandered upon her favorite and her French servants. t So totally had she abandoned all regard to Eng- lish interests, that Hyde and Cape], when retired to Jersey, the governor of which. Sir Edward Carteret, still held out for the king, discovered a plan formed by the queen and Jermyn to put that island into the hands of France. § They were exceedingly per- plexed at this discovery, conscious of the impossibility of defending Jersey, and yet detei-mined not to let it be torn away from * P. 24.5, 247, 278, 314. In one place he says that he will go to France to char his reputation to the queen, p. 265. He wrote in great distress of mind to Jermyn and Colepepper, on her threaten- ing to retire from all business into a monastery, in consequence of his refusal to comply with her wishes, p. 270. — See, also, Montreuil's memoir in Thurloe's State Papers, i., 8.5, whence it appears that the king had thoughts of making his escape in Jan., 1647. t " For the proposition to Bellievre (a French agent at Newcastle, after Montreuil's recall), I hate it. If any such thing should be made public, you are tmdone ; your enemies will make a malicious use of it. Be sure }"0u never own it again in any discourse, otherwise than as intended as a foil, or an hyperbole, or any other ways, except in sober earnest," &c., p. 304. The queen and her counsel- ors, however, seem afterward to have retracted in some measure what they had said about his escape, and advised that if he could not be suffered to go into Scotland, he would try Ireland or Jersey, p. 312. Her dislike to the king's escape showed itself, according to Clarendon, vi., 192, even at a time when it appeared the only means to secure his life, during his confinement in the Isle of Wight. Some may suspect that Henrietta had consoled herself too well with Lord Jermyn to wish for her husband s return. } P. 344. § P. 279. the sovereignty of the British crown. No better expedient occun-ed than, as soon as the project should be ripe for execution, to dispatch a message " to the Earl of North- umberland or some other person of honor,"' asking for aid to presei-ve the island. This was, of course, in other words, to sun'ender it into the jrower of the Parliament, which they would not name even to themselves ; but it was evidently more coasistent with their loyalty to the king and his family than to trust the good faith of Mazarin. The scheme, however, was abandoned, for we hear no more of it. It must, however, be admitted at the present day, that there was no better expe- dient for saving the king's life, and some portion of the royal authority for his de- scendants (a frank renunciation of Episco- pacy, perhaps, only excepted), than such an abdication, the time for which had come before he put himself into the hands of the Scots. HLs own party had been weakened, and the number of his well-wishers dimin- ished, by something more than the events of war. The last unfortunate year had, in two memorable instances, revealed fresh proofs of that culpable imprudence, speak- ing mildly, which made wise and honest men hopeless of any permanent accommo- dation. At the battle of Nase- Publication by, copies of some letters to the ^en « Nsle- queen, chiefly written about the by. time of the ti-eaty of Uxbridge, and strange- ly preserved, fell into the hands of the ene- my, and were instantly published.* No * Clarendon and Hume inveigh against the Par- Uament for this publication, in which they are of course followed by the whole rabble of Charles's admirers. But it could not reasonably be expect- ed that such material papers should be kept back : nor were the Parliament under any obUgation to do so. The former writer insinuates that they were garbled ; but Charles himself never pretend- ed this (see Supplement to Evelyn's Diary, p. 101); nor does there seem any foundation for the surmise. His own friends garbled them, however, after the restoration : some passages are omitted in the edi- tion of King Charles's Works ; so that they can only be read accurately in the original pubUcation, called the King's Cabinet Opened, a small tract^ quarto, or in the modem compilations, such as the Parliamentarj- Historj-, which have copied it. Lud- low says he has been informed that some of the letters taken at Naseby were suppressed by those intrusted with them, who since the king's restora- tion have been rewarded for it. — Memoirs, i., 15G. But I should not he inclined to believe this. Cha. I.— 1642-49.] FROM HENRY VII. TO GEORGE II. 343 other losses of that fatal day were more in- jurious to his cause. Besides many proofs of a contemptible subserviency to one justlj' deemed irreconcilable to the civil and relig- ious interests of the kingdom, and many ex- pressions indicating schemes and hopes in- consistent with any practicable peace, and especially a design to put an end to the Par- liament,* he gave her power to tieat with There is, however, an anecdote which may be mentioned in this place : A Dr. Hickman, after- ward Bishop of Derry, wrote in 1690 the following letter to Sprat, bishop of Rochester, a copy of which, in Dr. Birch's hand- writing, may be found in the British Museum. It was printed by liim in the Appendix to the " Inquiry into the Share King Charles I. had in Glamorgan's Transactions," and from thence by Harris, in his Life of Charles I., p. 144: "My Lord, — Last week Mr. Bennet [a bookseller] left with me a manuscript of letters from King Charles I. to his queen, and said it was your lord- ship's desire and Dr. Felling's that my Lord Roches- ter should read them over, and see what was fit to be left out in the intended edition of them. Ac- cordingly, my lord has read them over, and upon the whole matter says he is verj- much amazed at the design of printing them, and thinks that the king's enemies could not have done him a greater discourtesy. He showed me many passages which detract very much from the reputation of the king's prudence, and something from his integrity ; and, in short, he can find nothing throughout the whole col- lection but what will lessen the character of the king, and offend all those who wish well to his jnemorj". He thinks it very unfit to expose anj' man's conversation and familiarity with his wife, bnt especially that king's ; for it was apparently his blind side, and his enemies gained great advantage by showing it. But my lord hopes his friends will spare him, and therefore he has ordered me not to deliver the book to the bookseller, but put it into your lordship's hands ; and when you have read it, he knows you will be of his opinion. If your lord- ship has not time to read it all, my lord has turned down some leaves where he makes his chief objec- tions. If your lordship sends any servant to town, I beg you will order him to call here for the book, and that you would take care about it." Though the description of these letters answers perfectly to those in the King's Cabinet Opened, which certainly " detract much from the reputation of Charles's pmdence, and something from his in- tegrity," it is impossible that Rochester and the others could be ignorant of so well-known a pub- lication ; and we must consequentl3- infer that some letters injurious to the king's character have been suppressed by the caution of his friends. * The king had long entertained a notion, in which he was encouraged by the Attorney-general Herbert, that the act against the dissolution of the Parliament without its own consent was void in it- self.— Life of Clarendon, p. 86. This high monarch- ical theory of the nullity of statutes in restraint of the English Catholics, promising to take away all penal laws against them as soon as God should enable him to do so, in consid- eration of such powerful assistance as might deserve so great a favor, and enable him to effect it.* Yet it was certain that no Par- liament, except in absolute duress, would consent to repeal these laws. To what sort of victory, therefore, did he look? It was remembered that, on taking the sacrament at Oxford some time before, he had solemn- ly protested that he would maintain the Protestant religion of the Church of Eng- land, without any connivance at popery. What ti'ust could be reposed in a prince capable of forfeiting so solemn a pledge? Were it even supposed that he intended to break his word with the Catholics, after ob- the prerogative was never thoroughly eradicated till the Revolution, and in all contentious between the crown and Parliament destroyed the confidence, without which no accommodation could be durable. * " There is little or no appeai-ance but that this summer will be the hottest for war of any that hath been yet ; and be confident that, in making peace, I shall ever show my constancy in adhering to bish- ops and all our friends, not forgetting to put a short period to this perpetual Parliament." — King's Cab- inet Opened, p. 7. " It being presumption, and no piety, so to trust to a good cause as not to use all lawful means to maintain it, I have thought of one means more to furnish thee with for my assistance than hitherto thou hast had: it is, that I give thee power to promise in my name, to whom thou think- est most lit, that I will take away all the penal laws against the Roman Catholics in England as soon as God shall enable me to do it ; so as by their means, or in their favors, I may have so powerful assist- ance as may deserve so great a favor, and enable me to do it. But if thou ask what I call that as- sistance, I answer, that when thou knowest what may be done for it, it will be easily seen if it de- serve to be so esteemed. I need not tell thee what secrecy this business requires ; yet this I will say, that this is the greatest point of confidence I can express to thee ; for it is no thanks to me to trust thee in any thing else but in this, which is the only point of difference in opinion betwixt us ; and yet I know thou wilt make as good a bargain for me, even in this, as if thou wert a Protestant." — Id. ibid. " As to my calling those at London a Parlia- ment, I shall refer thee toDigby for particular sat- isfaction ; this in general : if there had been but two, besides myself, of my opinion. I had not done it ; and the argument that prevailed with me was, that the calling did no ways acknowledge them to be a Parliament, upon which condition and con- struction I did it, and no otherwise, and accordingly it is registered in the council books, with the council's unanimous approbation." — Id., p. 4. The one coun- selor who concurred with the king was Secretary Nicholas.— Supplement to E vel>-n's Memoirs, p. 90. 344 CONSTITUTIONAL HISTORY OF ENGLAND [Chap. X. taining such aid as they could render him, would his insincerity be less flagrant?* These suspicions were much aggi-avated by a second discovery that took Discovery"! , ^ i c Glamorgan's place soon attei-ward, ol a secret treaty. treaty between the Earl of Gla- morgan and the confederate Irish Catholics, not merely promising the repeal of t'ue pe- nal laws, but the establishment of their re- ligion in far the gi'eater part of Ireland.! The Marquis of Ormond, as well as Lord Digby, who happened to be at Dublin, loud- ly exclaimed against Glamorgan's presump- tion in concluding such a treaty, and com- mitted him to prison on a charge of ti'eason. He produced two commissions from the king, secretly granted without any seal or the knowledge of any minister, containing the fullest powers to treat with the Irish, and promising to fulfill any conditions into which he should enter. The king, informed of this, disavowed Glamorgan, and asserted in a letter to the Parliament that he had mere- ly a commission to raise men for his service, but no power to treat of any thing else, without the privity of the lord-lieutenant, much less to capitulate any thing concerning religion, or any property belonging either to church or laity. t Glamorgan, however, was * The queen evidently suspected t)iat he might be brought to abandon the Catholics. — King's Cab- inet Opened, p. 30, 31. And, if fear of her did not prevent him, I make no question that he would have done so, could he but have carried his other points. t Pari. Hist., 428. Somers Tracts, v., 542. It ap- pears by several letters of the king, publislied among those taken at Naseby, that Ormond had power to promise the Irish a repeal of the penal laws, and tbe use of private chapels, as well as a suspension of Pojuings' law. — King's Cabinet Opened, p. 16, 19 ; Rushw. Abr., v., 539. Glamor- gan's treaty granted them all the churches, with the revenues thereof, of which they had at any time since October, 1641, been in possession; that is, the re-establishment of their religion: they, on the other hand, were to famish a very large army to the king in England. t Rushw. Abr., v., 582, 594. This, as well as some letters taken on Lord Digby's rout at Sherborne about the same time, made a prodigious impression. ■' Many good men were sorry that the king's actions agi'eed no better with his words ; that he openly protested before God, with horrid imprecations, that he endeavored nothing so much a.^ the preser- vation of the Protestant religion, and rooting out of poperj- ; yet in the mean time, underhand, he prom- ised to the Irish rebels an abrogation of the laws against them, which was contrary to his late ex- pressed promises in these words, ' I will never soon released, and lost no portion of the king's or his family's favor. This transaction has been the subject of much historical controversy. The ene- mies of Charles, both in his own and later ages, have considered it as a proof of his in- difference at least to the Protestant religion, and of his readiness to accept the assistance of Irish rebels on any conditions. His ad- vocates for a long time denied the authen- ticity of Glamorgan's commissions ; but Dr. Birch demonstrated that they were genu- ine ; and, if his dissertation could have left any doubt, later evidence might be adduced in confirmation.* Hume, in a veiy artful abrogate the laws against the papists.' And agaia he said, ' I abhor to think of bringing foreign sold- iers into the kingdom,' and yet he solicited the Duke of Lorrain, the French, the Danes, and die very Irish, for assistance." — May's Breviate of Hist, of Parliament in Maseres's Tracts, i., 61. Charles had certainly never scrapled (I do not say that he ought to have done so) to make application in every quar- ter for assistance ; and began in 1642 witi) sending a Col. Cochran on a secret mission to Denmark, in the hope of obtaining a subsidiary force from that kingdom. There was, at least, no danger to the na- tional independence from such allies. "We fear this shall undo the king forever, that no repentance shall ever obtasn a pardon of this act, if it be true, from his Parliaments." — BaiUie, ji., 1S5, Jan. 20, 1646. The king's disavowal had some effect; it seems as if even those who were prejudiced against him could hardly believe bim guilty of such aa apostasy, as it appeared in their eyes. — P. 175. And, in fact, though the Catholics had demanded nothing unreasonable either in its own nature or ac- cording to the circumstances wherein they stood, it threw a great suspicion on the king's attachment to his ovrn faith, when he was seen to abandon al- together, as it seemed, the Protestant cause in Ire- land, while he was struggling so tenaciously for a particular form of it in Britain. Nor was his nego- tiation less impolitic than dishonorable. Without depreciating a very brave and injured people, it may be said with certainty that an Irish army could not have had the remotest chance of success against Fairfax and Cromwell ; the courage being equal on our side, the skill and discipline incomparably su- perior; and it was evident that Charles could never reign in England but on a Protestant interest. * Birch's Inquiry into the Share which King Charles I. had in the Transactions of the Earl of Glamorgan, 1747. Four letters of Charles to Gla- morgan, now in the British Museum (Sloaue MSS., 4161), in Birch's hand-writing, but of which he was not aware at the time of that publication, decisively show the king's dupUcitj". In the iirst, which was meant to be seen by Digby, dated Feb. 3, 1646. he blames him for having been drawn to consent to conditions much beyond his instructions. " If you had advised with my lord-lieutenant, as yon prom- ised me, all this had been helped;" and tells him Cha. I.— 1642-49.] FROM HENRY VII. TO GEORGE II. 345 niid very unfair statement, admitting the authenticity of these insti'uments, endeavors to show that they were never intended to give Glamorgan any power to treat without Ormond's approbation. B ut they are woi-d- ed in the most unconditional manner, with- out any reference to Ormond. No common he had commanded as much favor to be shown him as might possibly stand with his service and safety. On Feb. 28, he writes, by a private hand. Sir John Winter, that lie is every day more and more con- firmed in the trast that he had of him. In a third letter, dated April 5, he says, in a cipher, to which the key is given, " you can not be but confident of my making good all iiisti-uctions and promises to you and nuncio." The fourth letter is dated April 6, and is in these words : " Herbert, as I doubt not but you have too much courage to be dismayed or discouraged at the usage like yon have had, so I assure you that my estimation of you is nothing di- miuished by it, but rather begets in me a desire of revenge, and reparation to us both (for in this I hold myself equally interested with you), whereupon, not doubting of your accustomed care and industry in my service, I assure you of the continuance of my favor and protection to you, and that iu deeds more than iu words I shall show myself to be your most assured constant friend. C. R." These letters have latelj' been republished by Dr. Lingai-d, Hist, of Eng., x., note B., from War- ner's Hist, of the Civil War in Ireland. The cipher may be found in the Biogiaphia Britannica, under the article "Bales." Dr. L. endeavors to prove that Glamorgan acted all along with Ormond's priv- ity ; and it must be owned that the expression in the king's last letter about revenge and reparation, which Dr. L. does not advert to, has a very odd ap- pearance. The controversy is, I suppose, completely at an end, so that it is hardly necessary to mention a let- ter from Glamorgan, then Marquis of Worcester, to Clarendon, after the Restoration, which has every internal mark of credibi'ity, and displays the king's unfairness. — Clar. State Pap., ii., 201, and Lingard, ubi supra. It is remarkable that the transaction is never mentioned in the Histoi-y of the Rebellion. The noble author was, however, convinced of the genuineness of Glamorgan's commission, as appeai-s by a letter to Secretary Nicholas. " I must tell you, I care not how little I say in that business of Ireland, since those strange powers and iustiuc- tions given to your favorite Glamorgan, which ap- pear to be so inexcusable to justice, piety, and pnidence ; and I fear there is veiy much in that transaction of Ireland, both before and since, that you and I were never thought wise enough to be advised with in. Oh ! Mr. Secretaiy, those strata- gems have given me more sad hours than all the misfortunes in war which have befallen the king, and look like the effects of God's anger toward us." — Id., p. 237. See, also, a note of Mr. Laing, Hist, of Scotland, iii., 557, for another letter of the king to Glamorgan, from Newcastle, in July, 1646, not less explicit than the foregobig. reader can think them consistent with the king's story. I do not, however, impute to him any intention of ratifying the terms of Glamorgan's treaty. His want of faith was not to the Protestant, but to the Catholic. Upon weighing the whole of the evidence, it appears to me that he purposely gave Glamorgan, a sanguine and injudicious man, whom he could easily disown, so ample a commission as might remove the distrust that the Irish were likely to entertain of a negotiation wherein Ormond should be con- cerned ; while by a certain latitude in the style of the instrument, and by his own let- ters to the lord-lieutonant about Glamor- gan's errand, ho left it open to assert, in case of necessity, that it was never intended to exclude the former's privity and sanction. Charles had, unhappily, long been in tke habit of perverting his natural acuteness to the mean subterfuges of equivocal language. By these discoveries of the king's insin- cei'ity, and by what seemed his infatuated obstinacy in refusing terms of accommoda- tion, both nations became more and more alienated from him ; the one hardly re- strained from casting him oft", the other ready to leave him to his fate.*' „, , . mi !■ 1 [• The king de- This ill opinion of the king forms liveiedupby one apology for that action which ""^ has exposed the Scots nation to so much reproach — their delivei-y of his person to the English Parliament. Perhaps, if wo place ourselves in their situation, it will not ap- Buniet's Mem. of Dukes of Hamilton, 284. Bail- lie's letters, throughout 164C, indicate his appre- hension of the prevalent spirit, which he dreaded as implacable, not only to monarchy, but to Presby- tery and the Scots nation. " The leaders of the people seem inclined to have no shadow of a king, to have libeity for all rehgions, a lame Erastian Presbytei-y, to be so injurious to us as to chase us hence with the sword," 148. March 31, 1G46. " The common word is, that they will have the king prisoner. Possibly they may grant to the prince to be a duke of Venice. Tlie militia must be abso- lutely, for all time to romc, in the power of the Parliament alone," &c., 200. On the king's re- fusal of the propositions sent to Newcastle, the Scots took great pains to prevent a vote against him, 226. There was still, however, danger of this, 236, Oct. 13, and p. 243. His intrigues with both parties, the Presbyterians and Independents, were now known, and all sides seem to have been ripe for deposing him, 245. These letters are a curious contrast to the idle fancies of a speedy and triumph- ant restoration, which Clai-eudon himself as well as others of less judgment, seem to have cutei'- tained. 346 CONSTITUTIONAL HISTORY OF ENGLAND [Chap. X. pear desei'ving of quite such indignant cen- sure. It would have shown more gener- osity to have offered the king an alternative of retiring to Holland ; and from what we now know, he probably would not have neg- lected the opportunity. But the conse- quence might have been his solemn depo- sition from the English throne ; and, how- ever we may think such banishment more honorable than the acceptance of degrading conditions, the Scots, wo should remember, saw nothing in the king's taking the Cove- nant, and sweeping away prelatic super- stitions, but the bounden duty of a Christian sovereign, which only the most perverse self-will induced him to set at naught.* They had a right, also, to consider the in- terests of his family, which the threatened establishment of a republic in England would defeat. To cany him back with their army into Scotland, besides being equally ruinous to the English monarchy, would have ex- posed their nation to the most serious dan- gers. To undertake his defense by arms against England, as the ardent Royalists de- sired, and, doubtless, the determined Re- publicans no less, would have been, as was proved afterward, a mad and culpable re- newal of the miseries of both kingdoms. f * " Though he should swear it," says Baillie, " no mail vfHI believe tliat he sticks upon Episco- pacy for any conscience," ii., 205. And again : " It is pity that base liypocrisy, when it is pellucid, shall still bo entertained. No oaths did ever per- enade me that Episcopacy was ever adliered to on any conscience," 224. This looks at first like mere bigotry ; but when we remember that Charles had abolished Episcopacy in Scotland, and was ready to abolish Protestantism in Ireland, BaiUie's preju- dices will appear less unreasonable. The king's private letters in the Clarendon Papers have con- vinced me of his conscientiousness about church- government ; but of this his cotcmporaries could not be aware. t Hollis maintains that the violent party were very desirous that the Scots should carry the king with them, and that nothing could have been more injurious to his interests. If we may believe Berk- ley, who is much confirmed by Baillie, the Presby- terians had secretly engaged to the Scots that the anny should be disbanded, and the king brought up to London with honor and safety. — Memoirs of Sir J. Berkley, in Maseres's Tracts, i., 358. Baillie, ii., 257. This affords no bad justification of the Scots for delivering him up. " It is veiy like," says Baillie, " if he had done any duty, though he had never taken the Covenant, but permitted it to have been put in an act of Par- liament in both kingdoms, and given so satisfactoi-y an answer to the rest of the propositions as easily Ho had voluntarily come to their camp ; no faith was pledged to him; their very right to retain liis person, though they had argued for it with tlie English Parliament, seemed open to much doubt. The circumstance, unquestionably, which has always given a character of apparent baseness to this trans- action, is the payment of cf 400,000 made to them so nearly at the same time that it has passed for the price of the king's person. This sum was part of a larger demand on the score of aiTears of pay, and had been agreed upon long before we have any proof or reasonable suspicion of a stipulation to deliver up the king.* That the Parliament would never have actually paid it in case of a refusal to comply with this requisition, there can be, I presume, no kind of doubt ; and of this the Scots must have been fully aware ; but whether there were any such secret bargain as had been supposed, or whether they would have delivei-ed him up if there had been no pecuniaiy expectation in the case, is what I can not perceive suf- ficient grounds to pronounce with confi- dence, though I am much inclined to believe the affirmative of the latter question. And it is deserving of particular observation, that the party in the House of Commons which he might, and sometimes I know he was wilUng, certainly Scotland had been for him as one man ; and the body of England, upon many grounds, was upon a disposition to have so cordially embraced him, that no man, for his life, durst have muttered against his present restitution ; but remaining what he was in all his maxims, a full Canterburian both in matters of religion and state, he still inclined to a new war, and for that end resolved to go to Scot- land. Some great men there pressed the equity of Scotland's protecting of him on any terms. This untimeous excess of friendship has ruined that un- happy prince ; for the better party finding the con- clusion of the king's coming to Scotland, and thereby their own present ruin, and the ruin of the whole cause, the making the malignants masters of Church and State, the drawing the whole force of England upon Scotland for their perjurious Wolation of their covenant, they resolved by all means to cross that design."— P. 253. * The votes for payment of the sum of £400,000 to the Scots are on Aug. 21, 27, and Sept. 1, though it was not fully agreed between the two nations till Dec. 8.— Whitelock, 220, 229. But Wbitelock dates the commencement of the understanding as to the delivery of the king about Dec. 24, p. 231. — See Conmions' Journals. BaiUie, ii., 246, 253. Bur- net's Memoirs of Hamilton, 293, <5cc. Laing, iii.. 362; and Mr. Godwin's History of the Common- wealth, ii., 258 ; a work in which great attention has been paid to the order of time. Cha. I.— 1642-49.] FROM HENRY \TI. TO GEORGE II. 347 sought most earnestly to obtain possession of the king's person, and carried all the votes for payment of money to the Scots, was that which had no further aim than an ac- commodation with him, and a settlement of the government on the basis of its funda- mental laws, though doubtless on terms very derogatory to his prerogative; while those who opposed each part of the negotiation were the zealous enemies of the king, and, in some instances, at least, of the monarchy. The Journals bear witness to this.* Whatever might have been the conse- Growthofthe quence of the king's accepting '^dTeptbu- ^he propositions of Newcastle, cans. his chance of restoration upon any terms was now, in all appearance, veiy slender. He had to encounter enemies more dangerous and implacable than the Presbyterians. That faction, which from small and insensible beginnings had acquired continued strength, through ambition in a few, through fanaticism in manj-, through a despair in some of i-econciling the preten- sions of royalty with those of the people, was now rapidly ascending to superiority. Though still weak in the House of Com- mons, it had spread prodigiously in the ar- ray, especially since its new-modeling at the time of the Self-denying Ordinance.} The Presbyterians saw with dismay the growth of their own and the Constitution's enemies. But the Royalists, who had less to fear from confusion than from any settle- ment that the Commons would be brought to make, rejoiced in the increasing disunion, and fondly believed, like their master, that * Joamals, Aug. and Sept. Godwin, ubi supra. Baillie, ii., passim. t Baillie, who in Jan., 1644, speaks of the Inde- pendents as rather troablesome than formidable, and even says, "Xoman, I know, in either of the Houses, of any note, is for them," 437 ; and that " Lord Say's power and reputation is none at all; ' admits, in a few months, the alarming increase of Independency and sectarianism in the Earl of Man- chester's armj- ; more than two parts in three of die officers and soldiers being with them, and those the most resolute and confident, though they had no considerable force either in Essex's or Waller's army, nor in the Assembly of Divines or the Parlia- ment, ii., 5, 19, 20. This was owing, in a great de- gree, to the influence, at that period, of Cromwell over Manchester. " The man," he says, " is a very wise and active head, universally well beloved, as religious and stout ; being a known Independent, and most of the soldiers who love new ways put themselves under his command," CO. one or other party must seek assistance at their hands.* The Independent paity comprehended, besides the members of that re- opposition to ligious denomination,! a count- P^^byte- ^ ^ ' ' nan govem- less brood of fanatical sectaries, nient. nursed in the lap of Presbyterianism, and fed with the stimulating aliment she fur- nished, till their intoxicated fancies could neither be restrained within the limits of her creed nor those of her discipline. J The Presbyterian zealots were systemat- ically intolerant. A common cause made toleration the doctrine of the sectaries. About the beginning of the war, it had * The Independent party, or, at least, some of its most eminent members, as Lord Say and Mr. St. John, were in a secret correspondence with Oxford, through the medium of Lord Saville, in the spring of 1645, if we believe Hollis, who asserts that he had seen their letters, asking offices for themselves. — Mem. of Hollis, sect. 43. Baillie refers this to an earlier period, the beginning of 1644, i., 427 ; and I conceive that Hollis has been incorrect as to the date. The king, however, was certainly playing a game with them in the beginning of 1C46, as well as with the Presbyterians, so as to give both parties an opinion of his insincerity. — Clarendon State Papers, 214; and see two remarkable letters writ- ten by his order to Sir Henry Vane, 226, urging a union, in order to overthrow the Presbyterian gov- ernment. t The principles of the Independents are set forth candidly, and even favorably, by Collier, 829, as well as by Neal, ii., 98. For those who are not much acquainted with ecclesiastical distinctions, it may be useful to mention the two essential charac- teristics of this sect, by which they differed from the Presbyterians. The first was, that all churches or separate congregations were absolutely inde- pendent of each other as to jurisdiction or disci- pline, whence they rejected all synods and repre- sentative assemblies as possessing authority, though they generally admitted, to a very limited degree, the alliance of churches for mutual counsel and sup- port. Their second characteristic was the denial of spiritual powers communicated Lq ordination by apostolical succession, deeming the call of a con- gregation a sufficient warrant for the exercise of the ministi-y. — See Orme's Life of Owen for a clear view and able defense of the principles main- tained by this party. I must add, that Neal seems to have proved that the Independents, as a body, were not systematically adverse to monarchy. t Edwards's Gangrseua, a noted book in that age, enumerates one hundred and seventy -six heresies, which, however, are reduced by him to sixteen heads; and these seem capable of further consolida- tion.— Neal, 249. The House ordered a general fast, Feb., 1647, to beseech God to stop the giowth of heresy and blasphemy. — Whitelock, 236 : a Presbyterian artifice to alann the nation. 348 C0X3TITUTI0NAL HISTORY OF ENGLAND [Chap. X. been deemed expedient to call to- Toletation. , , , r ■ gether an assembly oi divmes, nominated by the Parliament, and consist- ing not only of clergymen, but, according to the Presbyterian usage, of lay members, peers as well as commoners, by whose ad- vice a general reformation of the Chu7xh was to be planned.* These were chiefly Presbyterian ; though a small minority of Independents, and a few moderate Episco- palians, headed by Selden,f gave them much trouble. The general imposition of the Cov- enant, and the substitution of the Directory for the Common Prayer (which was for- bidden to be used even in any private fam- ily by an ordinance of August, 1645), seem- ed to assure the triumph of Presbyterian- ism, which became complete, in point of law, by an ordinance of February, 1G46, establishing for three years the Scots model of classes, synods, and general assemblies throughout England. t But in this veiy ordinance there was a reservation which wounded the spiritual arrogance of that party. Their favorite tenet had always been the independency of the Church. * Pari. Hist., ii., 1479. They did not meet till July 1, 1643. Rush. Abr., v., 123. Neal, 42. Col- lier, 823. Though this assemblj- showed abundance of bigotry and naiTOwness, they were by no means so contemptible as Clarendon represents them, ii., 423; and perhaps equal in learning, good sense, and other merits, to any lower hoase of convocation that ever made a figure in England. t Whitelock, 71. Neal, 103. Selden, who owed no gratitude to the Episcopal Church, was from the beginning of its dangers a steady and active friend, displaying, whatever may have been said of his timidity, full as much courage as could reasonably be expected from a studious man advanced in years. Baillie, iu 1641, calls him "the avowed proctor of the bishops," i., 245 ; and when provoked by his Erastian opposition in 1646, presumes to talk of his " insolent absurdity," ii., 96. Selden sat in the Assembly of Divines ; and by his great knowl- edge of the ancient languages and of ecclesiastical antiquities, as well as by his sound logic and calm, clear judgment, obtained au undeniable superioritj', which he took no pains to conceaL t Scobell. Rush. Abr., v., 576. Pari. Hist., iii., 444. Neal, 199. The latter says this did not pass the Lords till June C. But this is not so. White- lock very rightly opposed the prohibition of the use of the Common Prayei-, and of the silencing Epis- copal ministers, as contraiy to the principle of lib- erty of conscience avowed by the Parliament, and like what had been complained of in the bishops, 226. 239. 281. But in Sept., 1647, it was voted that the indulgence in favor of tender consciences should not extend to tolerate the Common Prayer. — Id., 274. They had rejected, with as ranch abhor- rence as the Catholics themselves, the roy- al supremacy, so far as it controlled the exercise of spiritual discipline. But the House of Commons were inclined to part with no portion of that prerogative which they had wrested from the crown. Be- sides the Independents, who were still weak, a party called Erastians,* and chief- ly composed of the common lawyers, under the guidance of Selden, the sworn foe of every ecclesiastical usurpation, withstood the assembly's pretensions with success. They negatived a declaration of the divine right of Presbyterian government. They * The Erastians were named from Erastus, a German physician in the sixteenth century. The denomination is often used in the present age igno- rantly, and therefore indefinitely; but I apprehend that the fundamental principle of his followers was this : That in a commonwealth where the magistrate professes Christianity, it is not convenient that of- fenses against religion and morality should be pun- ished by the censures of the Church, especially by excommunication. Probably he may have gone further, as .Selden seems to have done (Neal, 194J, and denied the right of exclusion from church com- munion, even without reference to the temporal power ; but the limited proposition was of course sufficient to raise the practical controversy. The Helvetic divines, Gualter and BuUinger, strongly concurred in this with Erastus : " Contendimus dis- ciplinam esse debere iu ecclesii, sed satis esse, si ea administretur a magistratu." — Erastus, de Ex- communicatione, p. 350 ; and a still stronger passage iu p. 379. And it is said that Archbishop Whitgiflt caused Erastus's book to be printed at his own ex- pense.— See one of Warburton's notes on Neal. Calvin, and the whole of his school, held, as is well known, a veiy opposite tenet. — See Erasti Theses de Excommunicatione, 4to, 1379. The ecclesiastical constitution of England is nearly Erastian in theorj-, and almost wholly so in jjractice. Every sentence of the spiritual judge is I liable to be reversed by a ci\-il tribunal, the Court ! of Delegates by virtue of the king's supremacj' over all causes. And, practically, what is called church ! discipline, or the censures of ecclesiastical govern- ors for offenses, has gone so much into disuse, and what remains is so contemptible, that I believe no one, except those who derive a little profit from it, would regret its abolition. " The most part of the House of Commons," says Baillie, ii., 149, "especially the lavryers, whereof there are many, aud divers of them verj- able men, are either half or whole Erastians, believing no church-goverament to be of divine right, but all to be a human constitution, depending on the will of the magistrate." '■ The pope and king," he says in another place, 196, "were never more earnest for the headship of the Church than the pluralit>' of this Parliament." — See, also, p. 183; and Whitelock, 1 169. Cha. I.— 1642-49.] FROM HENRY VII. TO GEORGE II. • 349 voted a petition from the assemblj^ com- plaining of a recent ordinance as an en- croachment on spiritual jurisdiction, to be a breach of privilege. The Presbyterian tri- bunals were made subject to the appellant control of Parliament, as those of the An- glican Church had been to that of the crown. The cases wherein spiritual ceu- sui'es could be pronounced, or the sacra- ment denied, instead of being left to the clergy, were defined by law.* Whether fi'om dissatisfaction on this account, or some other reason, the Presbyterian discipline was never cairied into eflect, except to a certain extent in London and in Lanca- shire ; but the beneficed clergy throughout England, till the return of Charles IL, were chiefly, though not entirely, of that denom- ination.f This pai-ty was still so far predominant, having the strong support of the city of London and its corporation,t with almost * Pari. Hist., 459, et alibi. Rushw. Abr., v., 578, et alibi. Whitelock, 165, 169, 173, 176, et post. Baillie'sLetters, passim. Neal, 23, &c., 194, et post. Collier, 841. The Assembly attempted to sustain their own cause by counter votes ; and, the minor- ity of Independents and Erastiaus having with- drawn, it was carried with the single dissent of Lightfoot, that Christ had established a government in his Church independent of the civil magisti'ate. —Neal, 223. t Neal, 228. Warburton saj s, in his note on this passage, that "the Presbyterian was to all inlcnts and purposes the established religion during the time of the Commonwealth;" but, as coercive dis- cipline and synodical government are no small in- tents and purposes of that religion, this assertion requires to be modified, as it has been in my text. Besides which, there were many ministers of the Independent sect in benefices, some of whom, prob- ably, had never received ordination. " Both Bap- tists and Independents," says a very well infoniied writer of the latter denomuiation, "were in the practice of accepting the livings, that is, the tem- poralities of the Church. They did not, however, view themselves as parish ministers, and bound to administer all the ordinances of religion to the par- ish population. They occupied the pai-ochial edi- fices, and received a portion of the tithes for their maintenance, but in all other respects acted accord- ing to their own principles." — Omie's Life of Owen, 136. This he thinks would have produced vei-y serious evils, if not happily checked by the Res- toration. "During the Commonwealth," he ob- serves afterward, 245, " no system of church-gov- ernment can be considered as having been properly or fully established. The Presbyterians, if any, en- joyed this distinction." X The city began to petition for the establishment of Presbytei-y, and against toleration of sectaries. all the peers who remained in their House, that the Independents and other sectaries neither opposed this ordinance for its tem- porary establishment, nor sought any thing further than a toleration for their own wor- ship. The question, as Neal well observes, was not between Presbytery and Independ- ency, but between Presbytery with a tol- eration and without one.* Not me)ely early in 1646 ; and not long after came to assume what seemed to the Commons too dictatorial a tone. This gave much oifense, and contributed to drive some members into the opposite faction. — Neal, 193, 221, 241. Whitelock, 207, 240. * Vol. ii., 268. See, also, 207, and other places. This is a remark that requires attention ; many are apt to misunderstand the question. " For this point (toleration) both they and we contend," saj s Baillie, "tanquam pro aris et focis," ii., 175. "Not only they praise your magisti-ate" (writing to a Mr. Spang in Holland), " who for policy gives some se- cret tolerance to divers religions, wherein, as I con- ceive, your divines preach against them as great sinners, but avow that by God's command the mag- isti'ate is discharged to put the least discourtesy on any man, Jew, Turk, Papist, Socinian, or whatever, for his religion," 18. See, also, 61, and many other passages. " The anny" (says Hugh Peters, in a tract entitled A Word for the Anny, and Two Words to the People, 1647) "never hindered the state from a state religion, having only wished to enjoy now what the Puritans begged under the prelates ; when we desire more, blame us, and shame us." In another, entitled Vox Militaris, the author says, "Wo did never engage against this platform, nor for that platform, nor ever will, except better in- formed ; and, therefore, if the state establisheth Presbytery we shall never oppose it." The question of toleration, in its most important shape, was brought at this time before Parliament, on occasion of one Paul Best, who had written against the doctrine of the Trinity. According to the common law, heretics, on being adjudged by the spiritual court, were delivered over to be burned under the writ de hceretico comburendo. This pun- ishment had been inflicted five times under Eliza- beth ; on Wielmacker and Ter Wort, two Dutch Anabaptists, who, like many of that sect, enter- tained Arian tenets, and were burned in Smithfield in 1575 ; on Matthew Hammond in 1579, Tliomas Lewis in 1583, and Francis Ket in 1588 ; all bunied by Scambler, bishop of Norwich. It was also in- flicted onBartholomew Legat and Edward Wight- man, under James, in 1614 ; the first burned b}' King, bishop of London, the second by Neyle of Litchfield. A third, by birth a Spaniard, incurred the same penalty ; but the compassion of the people sliowed itself so strongly at Legat's execution, that James thought it expedient not to carry the sentence into efi'ect. Such is the venomous and demoralizing spirit of bigotry, that Fuller, a writer remarkable for good nature and gentleness, expresses his in- dignation at the pity which was manifested by the spectators of Legat's sufTurings. — Church Hist., 350 CONSTITUTIONAL HISTORY OF ENGLAND tCHAP. X. from their own exclusive bigotry, but from a political alarm by no means ungi'ounded, the Presbyterians stood firmly against all liberty of conscience. But in this, again, they could not influence the House of Com- mons to suppress the sectaries, though no open declaration in favor of indulgence was as yet made. It is still the boast of the In- dependents that they first brought forward the great principles of religious toleration (I mean as distinguished from maxims of political expediency), which had been con- fined to a few philosophical minds ; to Sir Thomas More, in those days of his better judgment when he planned his republic of Utopia, to Thuanus, or L'Hospital. Such principles are indeed naturally congenial to the persecuted, and it is by the alternate oppression of so many diffei'ent sects that they have now obtained their universal re- ception. But the Independents also assert that they first maintained them while in power ; a far higher praise, which, howev- er, can only be allowed them by compari- son. Without invidiously glancing at their early conduct in New England,* it must be part ii., p. 62. In the present case of Paul Best, the old sentence of fire was not suggested by any one ; but an ordinance was brought in, Jan., 1646, to punish him with death, Whitelock, 190. Best made, at length, such an explanation as was ac- cepted, Neal, 214 ; but an ordinance to suppress blasphemies and heresies as capital offenses was brought in. — Commons' Journals, April, 1646. The Independents gaining strength, this was long de- layed ; but the ordinance passed both Houses May 2, 1648.— Id., 303. Neal, 338, justly observes, that it shows the governing Presbyterians would have made a terrible nse of their power, had they been supported by the sword of the civil magistrate. The denial of the Trinity, incarnation, atonement, or inspiration of any book of the Old or New Testa- ment, was made felony. Lesser offenses, such as Anabaptism, or denying the lawfulness of Presby- terian government, were panisbable by imprison- ment till the party should recant. It was much op- posed, especially by Whitelock. The writ de hseretico comburendo, as is well known, was taken away by act of Parliament in 1677. * " In all New England, no liberty of living for a Presbyterian. Whoever there, were they angels for life and doctrine, will essay to set up a different way from them [the Independents], shall be sure of present banishment." — Baillie, ii., 4, also 17. I am surprised to find a late writer of that countrj- (Dwight's Travels in New England) attempt to ex- tenuate at least the intolerance of the Independents towai'd the Q,uakers, who came to settle there, and which, we see, extended also to the Presbyterians. But M •. Orme, with more judgment, observes that the New England congregations did not sufficiently ! admitted that the continuance of the penal j laws against Catholics, the prohibition of the Episcopalian worship, and the punish- ment of one or two anti-Trinitarians under Cromwell, are proofs that the tolerant prin- ciple had not yet acquired perfect vigor. If the Independent sectaries were its earli- est advocates, it was the Anglican writers, the school of Chillingwoith, Hales, Taylor, Locke, and Hoadley, that rendered it victo- rious.* The king, as I have said, and his party cherished too sanguine hopes from the dis- union of their opponents, f Though warn- ed of it by the Parliamentary commission- ers at Uxbridge, though, in fact, it was quite notorious and undisguised, they seem never to have comprehended that many active spirits looked to the entire subversion of the monarchy. The king in particular was haunted by a prejudice, natural to his obsti- nate and undiscerning mind, that he was necessaiy to the settlement of the nation ; adhere to the principle of Independency, and acted too much as a body, to which he ascribes their per- secution of the Quakers and others. — Life of Owen, p. 335. It is certain that the Congregational scheme leads to tolerarion, as the National Church scheme is adverse to it, for manifold reasons which the reader will discover. * Though the wi-itings of Chillingworth and Hales are not directly in behalf of toleration, no one could relish them without imbibing its spirit in the fullest measure. The great work of Jeremy Taylor, on the Liberty of Prophesying, was published in 1647, and, if we except a few concessions to the temper of the times, which are not reconcilable to its gen- eral principles, has left little for those who followed him. Mr. OiTne admits that the Remonstrants of Holland maintained the principles of toleration very early, p. 50, but refers to a tract by Leonard Busher, an Independent, in 1614, as "containing the most enlightened and scriptural \-iews of religious liber- ty," p. 99. He quotes other writings of the same sect under Charles I. t Several proofs of this occur in the Clarendon State Papers. A letter, in particular, from Cole- pepper to Digby, in Sept., 1643, is so extravagantly sanguine, considering the posture of the king's af- fairs at that time, that, if it was perfectly sincere, Colepepper must have been a man of less ability than has generally been supposed. — Vol. ii., p. 188. Neal has some sensible remarks on the king's mis- take in supposing that any party which he did not join must in the end be ruined, p. 268. He had not lost this strange confidence after his very life had become desperate ; and told Sir Jolm Bowring, when he advised him not to spin out the time at the treaty of Newport, that " any interests would be glad to come in with him." — See Bowring's Me- moirs in Halifax's Miscellanies, 132. Cha. L— 1042-49.] FROM HENRY VII. TO GEORGE II. 351 so that, if he remained firm, the whole Par- liament and army mu.st be at his feet. Yet during the negotiations at Newcastle there was daily an imminent danger that the ma- jority of Parliament, iiTitated by his delays, would come to some vote excluding him from the throne. The Scots Presbyteri- ans, whatever we may think of thoir be- havior, were sincerely attached, if not by loyal affection, yet by national pride, to the blood of their ancient kings. They thought and spoke of Charles as of a headstrong child, to be restrained and chastised, but never cast off.* But in England he had absolutely no friends among the prevailing pai'ty ; many there were who thought mon- archy best for the nation, but none who cared for the king. This schism, nevertheless, between the Parliament and the army was, at least in appearance, very desirable for Charles, and seemed to afford him an opportunity which a discreet prince might improve to great advantage, though it unfortunately deluded him with chimerical expectations.! At the * Baillie's letters are full of this feeling, and must be reckoned fair evidence, since no man could be more bigoted to Presbyter}', or more bitter against the Royalist party. I have somewhere seen Bail- lie praised for his mildness. His letters give no proof of it. Take the following specimens : " Mr. Maxwell, of Ross, has printed at Oxford so despe- rately malicious an invective against our assemblies and presbyteries, that, liowever I could hardly con- Bent to the hanging of Canterbury or of any Jesuit, yet I could give my sentence freely against that un- happy man's life," ii., 99. " God has struck Cole- man with death ; he fell in an ague, and after three or four days expired. It is not good to stand in Christ's way."— P. 199. Baillie's judgment of men was not more conspicu- ous than his moderation. " Vane and Cromwell are of horrible hot fancies to put all in confusion, but not of any deep reach. St. John and Pierpoint ai'e more stayed, but not great heads." — P. 258. The drift of all his letters is, that every man wlio resisted the jus divinum of Presbytery was knave or fool, if not both. They are, however, eminently service- able as historical documents. t "Now formyowuparticularresolntion,"he says in a letter to Digby, March 26, 1646, " it is this. I am endeavoring to get to London, so tliat the condi- tions may be such as a gentleman may own, and that tlie rebels may acknowledge me king; being not without hope that I shall be able so to draw either the Presbyterians or Independents to side with me for extirpating the one or the other, that I shall be really king again." — Carte-'s Ormond, iii., 452, quoted by Mr. Brodie, to whom I am indebted for the passage. I have mentioned akeady his conclusion of the war, which the useless obstinacy of tlie Royalists had protracted till the beginning of 1G47,* the Commons began to take measui'es for breaking the force of their remaining enemy. They re- solved to disband a part of the army, and to send the rest into Ireland. f They formed schemes for getting rid of Cromwell, and even made some demur about continuing Fairfax in command. t But in all measures overture about this time to Sir Henry Vane through Ashburuham. ' Clarendon, followed by Hume and several oth- ers, appears to say that Raglan Castle in Monmouth- shire, defended by the Marquis of Worcester, was the last that suiTendered, namely, in August, 164C. I use the expression appears to say, because the last edition, which exhibits his real text, shows that he paid this compliment to Peudennis Castle in Cornwall, and that his original editors (I sup- pose to do honor to a noble family) foisted in the name of Raglan. It is true, however, of neither. The Nortli Welsh castles held out considerably longer ; that of Harlech was not taken till April, 1G47, which put an end to the war. — Whitelock. Clarendon, still more unyielding than his master, extols the long resistance of his party, and says that those who sun-endered at the first summons ob- tained no better tcnns than they who made the stoutest defense ; as if that were a sufficient justifi- cation for prolonging a civil war. In fact, however, they did the king some harm, inasmucli as they im- peded the eiforts made in Parliament to disband the amiy. Several votes of the Commons show this : see the Journals of 12th May and 31st July, 1646. t Tlie resolution to disband Fairfax's regiment next Tuesday at Chelmsford passed 16th May, 1647, by 136 to 11.5, Algernon .Sidney being a teller of the noes. — Commons' Journals. In these votes the House, that is, the Presbyterian majority, acted with extreme impradeuee, not having provided for the payment of the army's aiTears at the time they were thus disbanding them. Whitelock advised HoUis and his party not to press the disbanding; and on finding them obstinate, drew off, as he tells us, from that connection, and came nearer to Crom- well, p. 248. This, however, ho had begun to do rather earlier. Independently of the danger of dis- gusting the army, it is probaljle that, as soon as it was disbanded, the Royalists would have been up in arms. For the growth of this discontent, day by day, perase Whitelock's Journals for March and the three following months, as well as the Parliament- ary Histoiy. t It was only carried by 159 to 147, March 5, 1647, that the forces should be commanded by Fairfax. But on the 8th, tlie House voted without a division that no officer under him should be above the rank of a colonel, and that no member of the House should have any command in the army. It is easy to see at whom this was leveled. — Commons' Jour- nals. They voted at the same time that the officers should all take the Covenant, which had been re- 352 CONSTITUTIOXAL HISTOEY OF ENGLAND [Chap. X. that exact promptitude and energy, treacli- eiy and timidity are apt to enfeeble the resolutions of a popular assembly. Their r demonstrations of enmity were, liitngtips ot . the army with liowover, SO alarming to the ar- the kin^. ^-^^ knew themselves dislik- ed by the people, and dependent for their pay on the Parliament, that as early as April, 1G47, an overture was secretly made to the king, that they would replace him in his power and dignity. He cautiously answered that he would not involve the kingdom in a fresh war, but should ever feel the sti-ongest sense of this offer from the army.* Whether they were discontented at the coldness of this reply, or, as is more probable, the offer had only proceeded from a minority of the officers, no further over- ture was made, till not long aftemard the His person manceuver of Joj-ce had placed seized. jjjg king's person in their power. The first effect of this military violence The Pariia- ^^^^ ^'^ display the Parliament's ment yield deficiency in political courage. to the armv. » ■ j ii i ' It contamed, we well know, a store of energetic spirits, not apt to swerve from their attachments ; but where two parties are almost equally balanced, the de- fection which external circumstances must produce among those timid and feeble men fi'om whom no assembly can be free, even though they should form but a small minor- ity, wUl of course give a character of cow- ai'dice and vacillation to counsels, which is imputed to the whole. They immediately expunged, by a rhajority of 96 to 79, a vote of reprehension passed some weeks before, upon a remonstrance from the anny which the Presbyterians had liighly resented, and gave other proofs of retracing their steps. But the army was not inclined to accept their submission in full discharge of the provocation. It had schemes of its own for the reformation and settlement of the king- dom more extensive than those of the Pres- jected two years before ; and, by a majority of 136 to 108, that they should all coufoi-m to the grovem- ment of the Church established by both houses of Parliament. * Clar. State Papers, ii., 36.5. The anny, in a dec- laration not long after the kine fell into their power, June 24, use these expressions ; " We clearly pro- fess that we do not see how there can be any peace to this kingdom firm or lasting, without a due pro- vision for the rights, quiet, and immuuitj' of his majesty, his royal family, and his late partakers." —Pari. Hist., 647. byterian faction. It had its own wrongs also to revenge. Advancing toward Lou- don, the general and council of war sent up charges of treason against eleven principal members of that party, who obtained leave to retire bej-ond sea. Here may be said to have fallen the legislative power and civil government of England, which from this hour till that of the Restoration had never more than a momentaiy and precarious gleam of existence, perpetually interrupted by the sword. Those who have once bowed their knee to force, must expect that force will be for- ever their master. In a few weeks after this submission of the Commons to the ar- my, they were insulted by an unruly, tu- multuous mob of apprentices, engaged in the Presbyterian politics of the city, who compelled them by actual violence to re- scind several of their late votes.* Tram- pled upon by either side, the two speakers, several peers, and a great number of the Lower House, deemed it somewhat less ignominious, and certainly more politic, to tlii'ow themselves on the protection of the army. They were, accordingly, soon re- stored to their places, at the price of a more complete and in-etrievable subjection to the militarj' power than they had already un- dergone. Though the Presbyterians main- tained a pertinacious resistance within the walls of the House, it was evident that the real power of command was gone from them, and that Cromwell, with the army, must either become arbiter between the king and Pai-liament, or crush the remaining authority of both. f * Hollis censures the speakers of the two Houses and others who fled to the army from this mob ; the riot being " a sudden tamnltuous thing of young idle people without design." Possibly this might be the case ; but the tumult at the door of the House, 26th July, was such that it could not be diWded. Their votes were plainly null, as being made under du- ress. Yet the Presbyterians were so strong in the Commons, that a resolution to annul all proceedings during the speakers absence was lost by 97 to 93, after his return ; and it was only voted to repeal them. A motion to declare that the Houses, from 26th July to 6th August, had been under a force, was also lost by 73 to 75. — Journals, 9th and 17th Au- gust. The Lords, however, passed an ordinance to this effect ; and after once more rejecting it, the Commons agreed on August 20, with a proviso that no one should- be called in question for what had been done. t These transactions are best read in the Com- Cha. I.— 1642-49.] FROM HENRY VII. TO GEORGE II. 353 There are few circumstances in our his- toi-y which have caused more per- Mysterious 'J . . conduct of plexity to inquu-ers than the con- Cromwell, j^^j. Cromwell and his friends toward the king iu the year 1647. Those who look only at the ambitious and dissem- bhng character of that leader, or at the fierce Republicanism imputed to Iretou, will hard- ly believe that either of them could harbor any thing like sincere designs of restoring him even to that remnant of sovereignty which the Parhament would have spared ; yet when we consider attentively the pub- lic documents and private memoirs of that period, it does appear probable that their first intentions toward the king were not unfavonible, and so far sincere that it was their project to make use of his name rath- er than totally to set him aside ; but wheth- er by gratifying Cromwell and his associ- ates with honors, and throwing the whole administration into their hands, Charles would have long contrived to keep a tarnish- ed crown on his head, must be very prob- lematical. raons' Jom-nals and the Parliamentary History, and next to tliose in Wliitelock. Hollis relates them with great passion; and Clarendon, as he does every thing else that passed in London, very im- perfectly. He accounts for the Earl of Manches- ter and the speaker Lcnthal's retiring to the army by their persuasion that the chief officers had nearly concluded a treaty with the king, and resolved to have their shares in it. This is a very unnecessary sarraise. Lcnthal was a poor-spirited man, alwaj s influenced by those whom he thought the strongest, and in this instance, according to Ludlow, p. 206, persuaded against his will by Hazlerig to go to the army. Manchester, indeed, had more courage and honor ; but he was not of much capacity, and his Parliamentary conduct was not systematic. But, npon the whole, it is obvious, on reading the list of names (Pari. Hist.. 757), that the king's friends were rather among those who stayed behind, espe- cially in the Lords, than among those who went to the army. Seven of eight peers who continued to sit fix)m 2Gth July to Cth of August, 1647, were im- peached for it afterward (Pari. Hist., 764), and they were all of the most moderate partj'. If the king had any previous connection with the city, he acted very disingenuously iu his letter to Fairfax, Aug. 3, while the contest was still pending, wherein he condemns the tumult, and declares his unwilling- ness that his friends should join with the city against the army, whose proposals he had rejected the day before with an imprudence of which he was now sensible. This letter, as actually sent to Fairfax, is in the Parliamentary Historv', 734, and may be compared with a rough draught of the same, pre- served in Clarendon Papers, 373, from which it ma- terially differs, being much shai"per against the city. z The new jailers of this unforturxite prince began by treating him with unus- , , . ^ _ Imprudent ual indulgence, especially in per- hopes of mitting his Episcopal chaplains to "'^ """S- attend him. This was deemed a pledge of what he thought an invaluable advantage in dealing with the army, that they would not insist upon the Covenant, which, in fact, was nearly as odious to them as to the Royalists, though for very different reasons. Charles, naturally sanguine, and utterly incapable in every part of his life of taking a just view of affairs, was extravagantly elated by these equivocal testimonials of good-will. He blindly listened to private insinuations from rash or treacherous friends, that the soldiers were with him, just after his seizure by Joyce. " I would have you to know, sh," he said to Fairfax, " that I have as good an interest in the army as yourself;" an opin- ion as injudiciously uttered as it was absurd- ly conceived.* These sti-ange expectations * Fairfax's Memoirs in Maseres's Collection of Tracts, vol. i., p. 447. " By this," says Fairfax, who had for once found a man less discerning of the times than himself, " I plainly saw the broken reed he leaned on. The agitators had brought the king into an opinion that the army was fur him." Ireton said plainly to the king, " Sir, you liave an intention to be the arbitrator between the Parlia- ment and us ; and we mean to be so between your majesty and the Parliament." — Berkley's Memoirs. Ibid., p. 360. This folly of the king, if Mrs. Hutchinson is well iufonned, alienated Ireton, who had been more in- clined to ti-ust him than is commonly believed. ''Cromwell," she says, "was at that time so incor- ruptibly faithful to his trust and the people's in- terest, that ho could not be drawn iu to practice even his own usual and natui-al dissimulation on this occasion. His .son-in-law Ireton, that was as faithful as he, was not so fully of the opinion till he had tried it, and found to the contrary, but that the king might have been managed to comply with the public good of his people, after he could no longer uphold his own violent will; bnt, upon some dis- com-ses with him, the king uttering these words to him, ' I shall play my game as well as I can,' Ireton replied, ' If your majesty have a game, you must give us also the liberty to play ours.' Colonel Hutchinson privately discoursing with liis cousin about the communications he had had with the king, Ireton's expressions were these : ' He gave us words, and we paid him in his own coin, when we found he had no real intention to the people's good, but to prevail, by our factions, to regain by art what he had lost in fight.' ' — P. 274. It must be said for the king that he was by no means more sanguine or more blind than his dis- tinguished historian and minister. Clarendon's private letters are full of strange and absurd ex- 3.54 COXSTITUTIONAL HISTORY OF ENSLAXD [Chap. X. account for the ill reception which, in the hasty irritation of disappointment, he gave to the proposals of the army, when they were actuallj' tendered to him at Hampton Court, and which seems to have eventually He rejects These propo- the proposals sals appear to have been drawn of the army. Ireton, a lawyer by educa- tion, and a man of much courage and capac- ity. He had been supposed, like a large proportion of the officers, to aim at a settle- ment of the nation under a democratical pol- ity ; but the army, even if their wishes in general went so far, which is hardly evident, were not yet so decidedly masters as to dic- tate a form of government uncongenial to the ancient laws and fixed prejudices of the people. Something of this tendency is dis- coverable in the propositions made to the king, which had never appeared in those of the Parliament. It was proposed that Par- liaments should be biennial ; that they should never sit less than a hundred and twenty days, nor more than two hundred and forty ; that the representation of the Commons should be reformed, by abolishing small boroughs and increasing the number of members for counties, so as to render the House of Commons, as near as might pectations. Even so late as October, 1647, he writes to Berkley in high hopes from the anuy, and presses him to make no concessions except as to persons. "If they see you veill not yieki, they must ; for sure they have as much or more need of the king than he of them."— P. 379. The whole tenor, indeed, of Clarendon's correspondence dem- onstrates that, notwithstanding the fine remarks occasionally scattered through liis history, he was no practical statesman, nor had any just concep- tion, at the time, of the course of affairs. He never flinched from one principle, not very practicable or rational in the circumstances of the king — that nothing was to be receded from which had ever been demanded. This may be called magnanimity ; but no foreign or domestic dissension could be set- tled if all men were to act upon it, or if all men, like Charles and Clarendon, were to expect that Providence would interfere to support what seems to them the best, that is, their own cause. The following passage is a specimen: "Truly I am so unfit to bear a part in carrying on this new conten- tion [by negotiation and concession], that I would not, to presei-ve myself, wife, and children from the lingering death of want by famine (for a sadden death would require no courage), consent to the lessening any part which I take to be in the func- tion of a bishop, or the taking away the smallest prebendary in the Church, or to be bound not to en- deavor to alter any such alteration.'' — Id., vol. iii., p. 2, Feb. 4, 1648. be, an equal representation of the whole. In respect of the militia and some other points, they either followed the Parliament- ary propositions of Newcastle, or modified them favorably for the king. They except- ed a very small number of the king's adhe- rents from the privilege of paying a compo- sition for their estates, and set that of the rest considerably lower than had been fixed by the Parliament. They stipulated that the Royalists should not sit in the next Par- liament. As to religion, they provided for liberty of conscience, declared against the imposition of the Covenant, and by insisting on the reti'enchment of the coercive juiis- diction of bishops and the abrogation of pen- alties for not reading the Common Prayer, left it to be implied that both might contin- ue established.* The whole tenor of these propositions was in a style far more re- spectful to the king, and lenient toward hia adherents, than had ever been adopted since the beginning of the war. The sincerity, indeed, of these overtures might be very questionable, if Cromwell had been concern- ed in them ; but they proceeded from those elective tribunes called Agitators, who had been established in every regiment to su- perintend the interests of the army ;f and the terms were surely as good as Charles had any reason to hope. The severities against his party were mitigated. The gi-and obstacles to all accommodation, the Covenant and Pre.sbyterian establishment, * Pari. Hist., 738. Clarendon talks of these pro- posals as worse than any the king had ever received from the Parliament ; and Hollis says they " dis- solved the whole frame of the monarchy." It is hard to see, however, that they did so in a greater degree than those which he had himself endeavored to obtain as a commissioner at Uxbridge. As to the Church, they were manifestly the best that Charles had ever seen. As to his prerogative and the power of the monarchy, he was so thoroughly beaten, that no treaty could do him any essential service ; and he had, in ti"uth, only to make his election, whether to be the nominal chief of an aris- tocratical or a democratical republic. In a well- written tract, called Vox Militaris, containing a de- fense of the aimy's proceedings and intentions, and published apparently in July, 1647, their desire to preserve the king's rights, according to their notion of them, and the general laws of the realm, is sti"ongly asserted. t The precise meaning of this word seems ob- scure. Some have supposed it to be a corruption of adjutators, as if the modem term adjutant meant the same thing. But I find agitator always so spelled in the pamphlets of the time. Cha. I. -1642-49.] FROM HENRY VII. TO GEORGE IT. 355 were at once removed ; or, if some difficul- ty might occur as to the latter, in conse- quence of the actual possession of benefices by the Presbyterian clergy, it seemed not absolutely insuperable. For the changes projected in the constitution of Parliament, they were not necessarily injurious to the monarchy. That Parliament should not be dissolved until it had sat a certain time, was so salutaiy a provision, that the triennial act was hardly complete without it. It is, however, probable, from the king's exti'eme tenaciousness of his prerogative, that these were the conditions that he found it most difficult to endure. Having obtain- ed, through Sir John Berkley, a sight of the propositions before they were openly made, he expressed much displeasure, and said that if the army were inclined to close with him, tliey would never have demand- ed such hard terms. He seems to have principally objected, at least in words, to the exception of seven unnamed persons from pardon, to the exclusion of his party from the next Parliament, and to the want of any articles in favor of the Church. Berkley endeavored to show him that it was not likely that the ai-my, if meaning sincerely, should ask less than this. But the king, still tampering with the Scots, and keeping his eyes fixed on the city and Parliament, at that moment came to an open breach with the army, disdainfully refused the propositions when publicly tendered to him, with such expressions of misplaced resent- ment and preposterous confidence as con- vinced the officers that they could neither conciliate nor ti-ust him.* This unexpect- ed haughtiness lost him all chance with those proud and Republican spirits ; and as they succeeded about the same time in bridling the Presbyterian party in Parlia- ment, there seemed no necessity for an agreement witli the king, and their former determinations of altering the frame of gov- eiTiment returned with more revengeful fury against his person. f * Berkley's Memoirs, 3G6. He told Lord Capel about this time that he expected a war between Scotland and England ; that the Scots hoped for the assistance of the Presbyterians ; and that he wished his own party to rise in arms on a proper conjuncture, without which he could not hope for much benefit from the others. — Clarendon, v., 476. t Berkley, 363, &c. Compare the letter of Ash- bamham, published in 1648, and reprinted in 1764; Charles's continuance at Hampton Court, also the memoirs of HoUis, Huntingdon, and Fair- fax, which are all in Maseres's Collection ; also Lvidlow, Hutchinson, Clarendon, Buniet's Memoirs of Hamilton, and some dispatches in 1647 and 1648, from a Royalist in London, printed in the append- ix to the second volume of the Clarendon Papers. This correspondent of Secretary Nicholas believes Cromwell and Ireton to have all along planned the king's destraction, and set the Levelers on, till they proceeded so violently that they were forced to restrain them. This, also, is the conclusion of Major Huntingdon, in his Reasons for laying down his Commission. But the contrary appears to me more probable. Two anecdotes, well known to those conversant in English histoiy, are too remarkable to be omit- ted. It is said by the editor of Lord On-ery's Me- moirs, as a relation which he had licard from that noble person, that in a conversation with Cromwell concerning the king's death, the latter told him, he and his friends had once a mind to have closed witli the king, fearing that the Scots and Presby- terians might do .so ; when one of their spies, who was of the king's bedchamber, gave them informa- tion of aletter from his majesty to the queen, sewed up in the skirt of a saddle, and directing them to an irm where it might be found. They obtained the letter accordingly, in which the king said that he was courted by both factions, the Scots Presby- terians and the army ; that those which bade fair- est for him should have him ; but he thought he should rather close with the Scots than the other. Upon this, finding themselves unlikely to get good terms from the king, they from that time vowed Ids destruction. — Carte's Ormond, ii., 12. A second anecdote is alluded to by some earlier writers, but is particularly told in the following words by Richardson, the painter, author of some anecdotes of Pope, edited by Spenco. " Lord Bo- linghroke told as, June 12, 1742 (Mr. Pope, Lord Marchmont, and myself), that the second Earl of Oxford had often told him that he had seen, and had in his hands, an original letter that Charles the First wrote to his queen, in answer to one of hers that had been intercepted, and then forward- ed to him, wherein she had reproached him for having made those villains too great concessions, viz., that Cromwell should be lord-lieuteuaut of Ire- land for life without account ; that that kingdom should be in the hands of the party, with an army there kept which should know no bead but the lieutenant ; that Cromwell should have a garter, &c. ; that in this letter of the king's it was said that she should leave him to manage, who was better informed of all circumstances than she could be ; but she might be entirely easy as to whatever con- cessions ho should make them, for that he should know in due time how to deal with the rogues, who, instead of a silken garter, should be fitted with a hempen cord. So the letter ended ; which answer as they waited for, so they intercepted ac- cordingly ; and it determined his fate. This letter Lord Oxford said he had offered £500 for." The authenticity of this latter story has been 356 CONSTITUTIONAL HISTORY OF ENGLAND [Chap. X, u „. , . there can be little doubt, would His flight ' from Hamp- have exposed him to such inimi- ton Court. ^^^^ ^.j^j^^ j^j^^j.^ escaping from thence, he acted on a reasonable principle of self-preservation. He might probably, with due precautions, have reached France or Jersey ; but the hastiness of his retreat from Hampton Court giving no time, he fell again into the toils, through the helplessness of his situation, and the unfortunate counsels of one whom he ti'usted.* The fortitude of his own mind sustained him in this state of captivity and entire seclusion from his friends. No one, however sensible to the infirmities of Charles's disposition, and the defects of his understanding, can refuse ad- miration to that patient firmness and unaid- ed acuteness which he displayed through- out the last and most melancholy year of his life. He had now abandoned all exj)ec- tation of obtaining any present terms for the Church or crown. He proposed, therefore, what he had privately empowered Murray to offer the year before, to confirm the constantly rejected by Hume and the advocates of Charles in general ; and, for one reason among oth- ers, that it looks like a misrepresentation of that told hy Lord On-ery, which both stands on good authority, and is ijerfectly conformable to all the memoirs of the time. I have, liovrever, been in- formed, that a memorandum nearly conformable to Richardson's anecdote is extant, in the hand-writ- ing of Lord Oxford. It is possible that this letter is the same with that mentioned by Lord Orrery, and in that case was written in the month of October. Cromwell seems to have been in treaty with the king as late as September, and advised him, according to Berk- ley, to i-eject the proposals of the Parliament in that month. Herbert mentions an intercepted let- ter of the queen (Memoirs, 60) ; and even his story proves that Cromwell and his party broke off with Charles from a conviction of his dissimulation. — See Laing's note, iii.,, 562, and the note by Strype, therein referred to, on Kennet's Complete Hist, of England, iii., 170, which speaks of a " constant tra- dition" about this story, and is more worthy of no- tice because it was written before the publication of Lord On-ery's Memoirs, or of the Richardsoniana. * Ashburnham gives us to understand that the king had made choice of the Isle of Wight previ- ously to his leaving Hampton Court, but probably at his own suggestion. This seems confirmed by the king's letter in Burnet's Mem. of Dukes of Hamilton, 326. Clarendon's account is a romance, with a little mixture, probably, of trutli. But Ash- bumham's Narrative, published in 1830, proves that he suggested the Isle of Wight, in consequence of the king's being forced to abandon a design he had formed of going to London, the Scots commission- ers retracting their engagement to support him. Presbyterian government for three years, and to give up the militia during his whole life, with other concessions of importance.* To presei-ve the Church lands from sale, to shield his friends from proscription, to obtain a legal security for the restoration of the monarchy in his son, were from hence- forth the main objects of all his efforts. It was, however, far too late even for these moderate conditions of peace. Upon his declining to pass four bills, tendered to him as preliminaries of a treaty, which on that very account, besides his objections to part of their contents, he justly considered as unfair, the Parliament voted that Alarming no more addresses should be votes agaiast made to him, and that they would receive no more messages. f He was placed in close and solitary confinement ; and at a meeting of the principal officers at Windsor, it was concluded to bring him to trial, and avenge the blood shed in the war by an awful example of punishment; Crom- well and Ireton, if either of them had been ever favorable to the king, acceded at this time to the severity of the rest. Yet in the midst of this peril and seem- ing abandonment, his affairs were really less desperate than they had been, and a few rays of light broke for a time through the clouds that enveloped him. From the * Pari. Hist., 799. t Jan. 1.5. This vote was carried by 141 to 92. — Id., 831 ; and see Append, to 2d vol. of Clar. State Papers. Cromwell was now vehement against the king, though he had voted in his favor on Sept. 22. — Journals, and Berkley, 372. A proof that the king was meant to be wholly rejected is, that at this time, in the list of the navy, the ex- pression " his majesty's ship" was changed to "the Parliament's ship." — Whitelock. 291. The four bills were founded on four propositions (for which I refer to Hume or the Parliamentarj- Histoi-y, not to Clarendon, who has misstated them) sent down from the Lords. The Lower House voted to agree with them by 115 to 106 : Sidney and Evelyn tellers for the ayes, Martin and Morley for the noes. The increase of the minorityis remarkable, and shows how much the king's refu- sal of the terms offered him in September, and his escape from Hampton Court, had swollen the Com- monwealth's party, to which, by-the-way, Colonel Sidney at this time seems not to have belonged. Ludlow says that party hoped the king would not grant the four bills, i., 224. The Commons publish- ed a declaration of their reasons for making no fur- ther addresses to the king, wherein they more than insinuate his participation in the murder of his fa- ther by Buckingham.— Pari. Hist., 847. Cha. 1.-1642-49.] TROM HENRY VII. TO GEORGE II. 357 hour that the Scots delivered him up at Newcastle, they seem to have felt the dis- credit of such an action, and longed for the opportunity of redeeming their public name. They perceived more and more that a well- disciplined army, under a subtle chief invet- erately hostile to them, were rapidly he- coming masters of England. Instead of that covenanted alliance, that unity in (Jhurch and State they had expected, they were to look for all the jealousy and dissen- sion that a complete discordance in civil and spiritual polity could inspire. Their com- missionei-s, therefore, in England, the Earl of Lanark, always a moderate Royalist, and the Earl of Lauderdale, a warm Presbyte- rian, had kept up a secret intercourse with Scots inva- the king at Hampton Court. Af- ter his detention at Carisbrook, tliey openly declared themselves against the four bills proposed by the English Parlia- ment, and at length concluded a private treaty with him, by which, on certain terms quite as favorable as he could justly expect, they bound themselves to enter England witli an army, in order to restore him to his freedom and dignity.* This invasion was to be combined with risings in various parts of the counti-y ; the Presbyterian and Royalist, though still retaining much of ani- mosity toward each other, concurring at least in abhorrence of military usurpation ; and the common people having very gener- ally returned to that affectionate respect for the king's person which sympathy for his sufferings, and a sense how little they had been gainers by the change of government, must naturally have excited. f The unfor- * Clarendon, whose aversion to the Scots vrarps )iis jud^ent, says that this treaty contained many things dishonorable to the English nation. — Hist., v., 532. The king; lost a good deal in the eyes of this uncompromising statesman by the concessions ho made in the Isle of Wight. — State Papers, 387. I can not, for my own part, see any thing deroga- tory to England in the treaty, for the temporary occupation of a few fortified towns in the North can hardly be called so. Charles, there is some reas- on to think, had on a former occasion made offei-s to the Scots far more inconsistent with his duty to this kingdom. t Clarendon. May, Breviate of the Hist, of the Parliament, in Maseres's Tracts, i., 113. White- lock, 307, 317, &.C. In a conference between the two Houses, July 25, 1648, the Commons gave as a reason for insisting on the king's surrender of the militia as a preliminary to a treaty, that such was the disafl'ection to the Parliament on all sides, that tunate issue of the Scots expedition imder the Duke of Hamilton, and of the various insurrections throughout England, quelled by the vigilance and good con- The Presby- duct of Fairfax and Cromwell, gX"he"as- is well known. But these form- cendant. idable manifestations of the public sentiment in favor of peace with the king on honora- ble conditions, wherein the city of London, ruled by the Pre.sbyterian ministers, took a share, compelled the House of Commons to retract its measures. They came to a vote, by 165 to 99, that they would not al- ter the fundamental government by king, Lords, and Commons ;* they abandoned their impeachment against seven peers, the most moderate of the Upper House, and the most obnoxious to the army ;f they re- stored the eleven members to their seats ;t they revoked their resolution against a per- sonal treaty with the king, and even that which required his assent by certain pre- liminary articles. § In a word, the party, for distinction's sake called Presbyterian, but now rather to be denominated Constitution- al, regained its ascendency. This change in the counsels of Parliament brought on the treaty of Newport. The treaty of Newport was set on foot and managed by those politicians of Treaty of the House of Lords who, having Newport, long suspected no danger to themselves but from the power of the king, had discovered, without the militia they could never be secure. — Rush. Abr., vi., 444. " The chief citizens of Lon- don," says May, 122, " and others called Presbyte- rians, though the Presbyterian Scots abominated this army, wished good success to these Scots no less than the Malignants did. Whence let the reader judge of the times." The fugitive sheets of this year, such as the Mercurius Aulicus, bear wit- ness to the exulting and insolent tone of the Roy- alists. They chuckle over Fairfax and Cromwell as if they had caught a couple of rats in a trap. * April 28, 1648. ?arl. Hist., 883. t June 6. These peers were the Earls of Suf- folk, Middlesex, and Lincoln, Lords Willoughby of Parham, Berkley, Hunsdon, and Maynard. They were impeached for sitting in the House during the tumults from 26tli of July to 6th of August, 1647. The Earl of Pembroke, who had also continued to sit merely because he was too stupid to discover which party was likely to prevail, escaped by truckling to the new powers. t June 8. $ See Pari. Hist., 823, 892, 904, 921, 924, 959, 996, for the different votes on this subject, where- in the Presbyterians gradually beat the Independ- ent or Republican party, but with very small and 1 precarious majorities. 358 CONSTITUTIONAL HISTORY OF ENGLAND [Chap. X. somewhat of the latest, that the crown it- self was at stake, and that theu" own privi- leges were set on the same cast. Nothing was more remote from the intentions of the Earl of Northumberland or Lord Say than to see themselves pushed from their seats by such upstarts as Ireton and Hanison, and their present mortification afforded a proof how men reckoned wise in their gen- eration become the dupes of their own self- ish, crafty, and pusillanimous policy. They now gi'ow anxious to see a treaty concluded with the king. Sensible that it was neces- sary to anticipate, if possible, the return of Cromwell from the North, they implored him to comply at once with all the propo- sitions of Parliament, or at least to yield in the first instance as far as he meant to go.* * Clarendon, vi., 155. He is very absurd in im- agining that any of the Parliamentary commission- ers would have been satisfied with " an act of in- demnity and oblivion." That the Parliament had some reason to expect the king's firmness of purpose to give way, in spite of all his Iiaggling, will appear from the following short review of what had been done. 1. At New- market, in June, 1642, he absolutely refused the nineteen propositions tendered to him by the Lords and Commons. 2. In the treaty of Oxford, March, 1643, he seems to have made no concessions, not even promising an amnesty to those he had already excluded from pardon. 3. In the treaty of Ux- bridge, no mention was made on his side of ex- clusion from pardon ; he oflfered to vest the militia for seven years in commissioners jointly appointed by himself and ParUameut, so that it should after- ward return to him, and to limit the jurisdiction of the bishops. 4. In the winter of 1645, he not only offered to disband his forces, but to let the militia be vested for seven years in commissioners to be appointed by the two Houses, and afterward to be settled by bill ; also to give the nomination of offi- cers of state and judges pro hac vice to the Houses. 5. He went no further in substance till May, 1647, when he offered the militia for ten years, as well as great limitations of Episcopacy, and the contin- uance of Presbyterian government for three years ; the whole matter to be afterward settled bj' bill on the advice of the Assembly of Divines, and twenty more of his own nomination. 6. In his let- ter from Carisbrook, Nov., 1647, he gave up the militia for his hfe. This was, in effect, to sacri- fice almost every thing as to immediate power; but he struggled to save the Church lands from confiscation, which would have rendered it hardly practicable to restore Episcopacy in future. His further concessions in the treaty of Newport, though very slowly extorted, were comparatively ti-ifliiig. What Clarendon thoughtof theti'eatyofNewport may be imagined. "You may easily conclude,'' lie writes to Digby, " how fit a counselor I am like to be, when the best that is proposed is that which They had not, liowever, mitigated in any degree the rigorous conditions so often pro- posed ; nor did the king, during this treaty, obtain any reciprocal concession worth men- tioning in return for his sun-ender of almost all that could be demanded. Did the posi- tive adherence of the Parliament to all these propositions, in circumstances so per- ilous to themselves, display less unreasona- ble pertinacity than that so often imputed to Charles ] Or if, as was the fact, the majority which the Presbyterians had ob- tained was so precarious that they dared not hazard it by suggesting any more mod- erate counsels, what rational security would I would not consent unto to preserve the kingdom from ashes. 1 can tell you worse of myself than this, which is. that there may be some reasonable expedients which possibly might in truth restore and preser\-e all, in which I conld bear no part.'' — P. 459. See, also, p. 351 and 416. I do not di- vine what he means by this, miless it were the king's abdication. But what he could not have approved was, that the king had no thoughts of dealing sincerely with the Parliament in this treaty, and gave Ormond directions to obey all his wife's commands, but not to obey any further orders he might send, nor to be startled at his great conces- sions respecting Ireland, for they would come to nothing. — Carte's Papers, i., 185. See Mr. Brodie's remarks on this, iv., 143-146. He had agreed to give up the government of Ireland for twenty }■ ears to the Parliament. In his lettersent fromHolmby in May, 1647, he had declared that he would give full satisfaction with respect to Ireland. But he thus explains himself to the queen : " I have so coach- ed that article, that, if the Irish give me cause, I may interpret it enough to their advantage ; for I only say that I will give them (the two Houses) full satisfaction as to the management of the war, nor do I promise to continue the war; so that, if I find reason to make a good peace there, my en- gagement is at an end ; wherefore make this my interpretation known to the Irish.'' "'What reli- ance," says Mr. Laing, from whom I transcribe this passage (which I can not find in the Clarendon State Papers, quoted by him), 'could ParUament place at the beginning of the dispute, or at any subse- quent period, on the word or moderation of a prince, whose solemn and written declarations were so full of equivocation ?" — Hist, of Scotland, iii., 409. It may here be added, that, though Charles had given his parole to Colonel Hammond, and bad the sentinels removed in consequence, he was engag- ed during most part of his stay at Carisbrook in j schemes for an escape. — See Col. Cooke's Narrative, printed with Herbert's Memoirs ; and in Hushw. I Abr., vi., 534. But his enemies were apprised of 1 this intention, and even of an attempt to escape ' by removing a bar of his wuidow, as appears by j the letters from the committee of Derby House, Cromwell, and others, to Colonel Hammond, pub- I lished in 1764. Cha. I.— 1642-49.] FROM HENRY VU. TO GEORGE 11. 359 the treaty have aflbided him, had he even come at once into all their requisitions ? His real error was to have entered upon any ti-eaty, and still more to have drawn it out by tardy and ineffectual capitulations. There had long been only one course either for safety or for honor, the abdication of his royal office ; now probably too late to pre- serve liis life, but still more honorable than the treaty of Newport. Yet, though he was desirous to make his escape to France, I have not observed any hint that he had thoughts of resigning the crown, whether from any mistaken sense of obligation, or from an apprehension that it might affect the succession of his son. There can be no more eiToneous opinion than that of such as believe that the desire of overturning the monarchy produced tlie civil war, rather than that the civil war brought on the former. In a peaceful and ancient kingdom like England, the thought of change could not spontaneously arise. A very few speculative men, by the study of antiquity, or by observation of the prosperi- ty of Venice and Holland, might be led to an absti-act preference of Republican poli- tics ; some fanatics might aspire to a Jew- ish theocracy ; but at the meeting of the Long Parliament, we have not the slightest cau.se to suppose that any party, or any number of persons among its members, had formed what must then have appeared so extravagant a conception.* The insupera- ble distrust of the king's designs, the irrita- tion excited by the sufferings of the war, the impracticability, which every attempt * Clarendon mentious an expression that dropped from Henry Martin iu conversation not long after the meeting of the Parliament : " I do not think one man wise enough to govern ns all." This may doubtless be taken in a sense perfectly compatible with our limited monarchy. But Mar- tin's Bcpublicanism was soon apparent: he was sent to the Tower ,in August, 1643, for language reflecting on the king. — Pari. Hist., 161. A Mr. Chillingworth had before incurred the game pun- ishment for a like offense, December 1, 1641. — Nalson, ii., 714. Sir Henr>' Ludlow, father of the regicide, was also censured on the same account. As the opposite faction grew stronger, Martin was not only restored to his seat, but the vote against him was expunged. Vane, I presume, took up Republican principles pretty early j perhaps, also, Hazlerig. With these exceptions, I know not that we can fix on any individual member of Par- liament the charge of an intention to subvert the Constitutbn till 1646 or 1647. at negotiation displayed, of obtaining his ac- quiescence to tenns deemed indispensable, gradually created a powerful faction, whose chief bond of union was a determination to set him aside.* What further scheme they had planned is uncertain ; none, prob- ably, iu which any number were agreed : some looked to the Prince of Wales, oth- ers perhaps, at one time, to the elector pal- atine ;f but necessity itself must have sug- gested to many the idea of a Republican ' Pamphlets maybe found as early as 1643 which breathe this spirit, but they are certainly rare till 1645 and 1646. Such are "Plain English," 1643; "The Characterof an Anti-mahgnant," 1645; "Last Warning to all the Inhabitants of London," 1647. t Charles Louis, elector palatine, elder brother of the Princes Rupert and Maurice, gave cause to suspect that he was looking toward the throne. He left the king's quarters, where he had been at the commencement of the war, and retired to Holland; whence he wrote, as well as his mother, the Q,ueen of Bohemia, to the Parliament, disclaiming and re- nouncing Prince Rupert, and begging their own pensions might be paid. He came over to London in August, 1644, took the Covenant, and courted the Parliament. They showed, however, at first, a good deal of jealousy of him, and intimated that his affairs would prosper better by his leaving the kingdom.— Whitelock, 101. Rush. Abr., iv., 359. He did not take this hint, and obtained next year an allowance of £8000 per annum. — Id., 145. Lady Rauelagh, in a letter to Hyde, March, 1644, con- juring him, by his regard for Lord Falkland's mem- ory, to use all his influence to procure a message from the king for a treatj', adds, " Methinks what I have informed my sister, and what she will inform you, of the posture the prince elector's affairs aro in here, should be a motive to hasten away this message." — Clar. State Papers, ii., 167. Clai-endon himself, in a letter to Nicholas, Dec. 12, 1646 (where he gives his opinion that the Independents look more to a change of the king and his line than of the monarchy itself, and would restore the full pre- rogative of the crown to one of their own choice), proceeds iu these remarkable words : " And I pray Cfod they have not such a nose of wax ready for their impression. This it is makes me tremble more than all their discourses of destroying mon- archy ; and that toward this end, they find assist- ance from those who from their hearts abhor their confusions."— P. 308. These expressionsseemmore applicable by far to the elector than to Cromwell. But the former was not dangerous to the Parlia- ment, though it was deemed fit to treat him with respect. In March, 1647, we find a committee of both Houses appointed to receive some intelligence which the prince elector desired to communicate to the Parliament of great importance to the Protes- tant religion. —Whitelock, 241. Nothing further ap- 1 pears about this intelligence, which looks as if he were merely afraid of being forgotten. He left 1 England in 1649, and died in 1680. 360 CONSTITUTIONAL HISTORY OF ENGLAND [Chap. X. settlement. In the new-modeled army of 1645, composed of Independents and enthu- siasts of eveiy denomination, a fervid eager- ness for changes in the civil polity, as weU as in religion, was soon found to pi-edomi- nate. Not checked, like the two Houses, by attachment to forms and by the influence of lawyers, they lanched forth into varied projects of reform, sometimes judicious, or at least plausible, sometimes wildly fanat- ical. They reckoned the king a tyrant, whom, as they might fight against, they might also put to death, and whom it were folly to provoke if he were again to become their master. Elated with their victories, they began already, in imagination, to carve out the kingdom for themselves, and re- membered that saying so congenial to a revolutionary army, that the first of mon- firchs was a successful leader, the first of nobles were his followers.* The knowledge of this innovating spirit Gradual in the army gave confidence to the a Tpubi,- violent party in Parliament, and can party, increased its numbers by the ac- cession of some of those to whom nature has given a fine sense for discerning their own advantage. It was doubtless swollen through the publication of the king's letters, and his pertinacity in clinging to his prerog- ative ; and the complexion of the House of Commons was materially altered by the in- troduction at once of a large body of fresh members. They had, at the beginning, ab- stained from issuing writs to replace those whose death or expulsion had left their seats vacant. These vacancies, by the disabling votes against all the king's party,f became so numerous, that it seemed a glaring viola- tion of the popular principles to which they aj)pealed, to carry on the public business with so maimed a representation of the j)eople. It was, however, plainly impossi- ble to have elections in many parts of the " Baxter's Life, 50. He ascribes the increase of enthusiasm in tlie araiy to the loss of its Presby- terian chaplains, who left it for their benefices, on the reduction of the king's party and the new- modeling of the troops. The officers then took on them to act as preachers. — Id., 54 ; and Neal, 183. I conceive that the year 1645 is that to which we must refer the appearance of a Republican party in considerable numbers, though not yet among the House of Commons. t These passed again.st the Royalist members separately, and for the most part in the first months of the war. kingdom while the royal army was in strength; and the change, by filling up nearly two hundred vacancies at once, was likely to become so important, that some feared that the Cavaliers, others that the Independents and Republicans, might find their advantage in it.* The latter party were generally earnest for new elections, and earned their point against the Presby- terians in September, 1645, when new writs were ordered for all the places which were left deficient of one or both repre- sentatives.f The result of these elections, though a few persons rather friendly to the king came into the House, was, on the whole, very favorable to the army. The Self-denying Ordinance no longer being in operation, the principal officers were elect- ed on eveiy side, and, with not many ex- ceptions, recruited the ranks of that small body which had ah-eady been marked by implacable dislike of the king, and by zeal for a total new-modeling of the govera- ment.t In the summer of 1646, this party had so far obtained the upper hand, that, according to one of our best authorities, the Scots commissioners had all imaginable dif- ficulty to prevent his deposition. In the course of the year 1647, more overt proofs of a design to change the established Con- stitution were given by a party out of doors. A petition was addressed " to the supreme * " The best Mends of the Parliament were not without fears what the issue of the new elections might be ; for though the people durst not choose such as were open enemies to them, yet probably they would such as were most likely to be for 3 peace on any tenus, corruptly preferring the frui- tion of their estates and sensual enjoyments before the public interest," &c. — Ludlow, i., 168. This is a fair confession how little the CommonwealA party had the support of the nation. t C. Journals. Whitelock, 168. Theboronghof Soathwark had just before petitioned for a new writ, its member being dead or disabled. i That the House of Commons, inDecember, 1645, entertained no views of altering the fundamental Constitution, appears from some of their resolutions as to conditions of peace : "That Fairfax should have an earldom, with £5000 a year; Cromwell and Waller baronies, with half that estate ; Essex, Northumberland, and two more be made dukes ; Manchester and Salisbuiy, marquises, and other peers of their party be elevated to higher ranks; Hazlerig. Stapylton, and Skipton to have pensions." —Pari. Hist., 403. Whitelock, 182. These votes do not speak much for the magnanimity and disin- terestedness of that assemhly, though it may suit ]iolitical romancers to declaim about it. CHA. I.— 1642-19.] FROM HENEY VII. TO GEORGE IT. 361 authority of this nation, the Commons as- sembled in Parliament." It was voted upon a division that the House dislikes this petition, and can not approve of its being delivered ; and afterward, by a majority of only 94 to 8G, that it was seditious and in- solent, and should be burned by the hang- man.* Yet the first decisive proof, per- haps, which the Journals of Parliament af- ford of the existence of a Republican par- ty, was the vote of 22d September, 1647, that they would once again make applica- tion to the king for those things which they judged necessary for the welfare and safe- ty of the kingdom. This was can'ied by 70 to 23. t Their subsequent resolution of January 4, 1648, against any further ad- dresses to the king, which passed by a ma- jority of 141 to 91, was a virtual renuncia- tion of allegiance. The Lords, after a warm debate, concuiTed in this vote ; and the army had, in November, 1647, before the king's escape from Hampton Court, published a declaration of their design for the settlement of the nation under a sover- eign representative assembly, which should • Commons' Journals, May 4 and 18, 1C47. This minority were not, in general, Republican, but were auwiUing to increase the irritation of the army by so sti-ong a vote. t Commons' Journals. Whitelock, 271. Pari. Hist., 781. They had just been exasperated by his evasion of their propositions. — Id., 778. By the smaJlness of the numbers, and the names of the tellers, it seems as if the Presbyterian party had been almost entirely absent; which may be also inferred from other parts of the Journals. — See Oc- tober 9 for a long list of absentees. Hazlerig and Evelyn, both of the army faction, told the ayes, Martin and Sir Peter Wentworth the noes. The House had divided the day before on the question for going into a committee to take this matter into consideration, 84 to 34, Cromwell and Evelyn tell- ing the majorit}', Wentworth and Rainsborough the minority. I suppose it is from some of these divi- sions that Baron Maseres has reckoned the Repub- lican party in the House not to exceed thirty. It was resolved on Nov. 6, 1647, that the King of England, for the time being, was bound in jus- tice, and by the duty of his office, to give his assent to all such laws as by the Lords and Commons in Parliament shall be adjudged to be for the good of the kingdom, and by them tendered unto him for his assent. But the previous question was earned on the following addition : " And in case the laws so oflFered unto him shall not thereupon be assented nnto by him, that nevertheless they are as valid to aU intents and purposes as if his assent had been thereunto had and obtained, which they do insist opon as an undoubted right."— Com. Jour. possess authority to make or repeal laws, and to call magistrates to account. We are not certainly to conclude that all who, in 1648, had made up their minds against the king's restoration, were equally averse to all regal government. The Prince of Wales had taken so active, and, for a mo- ment, so successful a share in the war of that year, that his father's enemies were become his own. Meetings, however, were held, whore the military and Parliamenta- ry chiefs discussed the schemes of raising the Duke of York, or his younger brother the Duke of Gloucester, to the throne. Cromwell especially wavered, or pretended to waver, as to the settlement of the na- tion ; nor is there any evidence, so far as I know, that he had ever professed himself averse to monarchy, till, dextrously mount- ing on the wave which he could not stem, he led on those zealots who had resolved to celebrate the inauguration of their new Commonwealth with the blood of a victim king.* It was about the end of 1647, as I have said, that the principal ofificers took the determination, which had been amoug^the already menaced by some of the "f . . . bringing agitators, of bi'inging the king, as diaries to the first and gi'eatest delinquent, to public justice. f Too stern and haughty, * Ludlow says that Cromwell, "finding the king's friends grow strong in 1648, began to court the Com- monwealth's party. The latter told him he knew how to cajole and give them good words when he had occasion to make tise of them ; whereat, break- ing out into a rage, he said they were a proud sort of people, and only considerable in their own con- ceits."— P. 240. Does this look as if he had been reckoned one of them ? t Clarendon says that there were many consulta- tions among the officers about the best mode of dis- posing of the king ; some were for deposing him, others for poison or assassination, which, he fancies, would have been put in practice if they could have prevailed on Hammond. But this is not warranted by our better authorities. It is hard to say at what time the first bold man dared to talk of bringing the king to justice. But in a letter of Baillie to Alexander Henderson, May 19, 1646, he says, " If God have hardened him. so far as I can perceive, this people will strive to have him in tlieir power, and make an example of him ; I abhor to think what tlir.y speak of execution .'" ii., 20 ; published, also, in Dalrymple's Memorials of Charles I., p. 166. Proofs may also be brought from pamphlets by Lilburne and others inlfi47, especially toward the end of that year ; and the remonstrance of the Scots Parliament, dated Aug. 13, alludes to 362 CONSTITUTIONAL HISTOHY OF ENGLAND [Chap. X. too confident of the righteousness of their actions, to think of private assassination, they sought to gi'atify their pride by the solemnity and notoriousness, by the very infamy and eventual danger of an act un- precedented in the history of nations. _ . . , , Throughout the year 1G48, this This IS final- * ' ly Jetermin- design, though Suspended, be- came faraifiar to the people's ex- pectation.* The Comraonwealtirs men and the Levelers, the various sectaries (admitting a few exceptions), gi-e\v clamor- ous for the king's death. Petitions were pi'esented to the Commons, praying for jus- tice on all delinquents, from the highest to the lowest ;t and not long afterwai-d, the general officers of the army came forward with a long remonstrance against any treaty, and insisting that the capital and grand au- thor of their troubles be speedily brought to justice, for the treason, blood, and mischief whereof he had been guilty, t This was Buch language. — Rush. Abr., vi., 245. Berkley, in- deed, positively assures us, tliat the resolution was taken at Windsor, in a council of officers, soon af- ter the king's confinement at Carisbrook ; and this with so much particularit}" of circumstance, that, if we reject his account, we must set aside the whole of his memoirs at the same time. — Maseres's Tracts, i., 383. But it is fully confirmed by an independent testimony, William Allen, himself one of the coun- cil of officers and adjutant-general of the army, who, in a letter addressed to Fleetwood, and published in 1659, declai'es, that after much consultation and prayer at Windsor Castle, in the beginning of 1648, they had " come to a verj' clear and joint resolution that it was their duty to call Charles Stuait, that man of blood, to an account for the blood he had shed, and mischiefhe had done to hisutmost, against the Lord's cause and people in these poor nations." This is to be found in Somers Tracts, vi., 499. The only discrepancy, if it is one, between him and Berkley, is as to the precise time, which the other seems to place in the end of 1647. But this might be lapse of memory in either party ; nor is it clear, on looking attentively at Berkley's nan-ation, that lie determines the time. Ashbumham says, " For some days before the king's remove from Hampton Court, there was scarcely a day in which several alarms were not brought him by and from several considerable persons, both well afTected to him and likely to know much of what was then in agitation, of the resolution which a violent party in the army had to take away his life. And that such a design there was, there were strong insinuations to per- suade."— See, also, his Narrative, published in 1830. * Somers Tracts, v., 160, 162. t Sept. 11. Pari. Hist, 1077. May's Breviate in Maseres's Tracts, vol. i., p. 127. Wbitelock, 335. i Nov. 17. Pari. Hist., 1077. Whitelock, p. 355. A motion, Nov. 30, that the House do now proceed soon followed by the vote of the Presbyte- rian party, that the answers of the king to the propositions of both Houses are a ground for the House to proceed upon for the set- tlement of the peace of the kingdom,* by the violent expulsion, or, as it ^ i ^ ' _ Secmsion of was called, seclusion of all the Presbyterian Presbyterian members from the ™^°'''*"- House, and the ordinance of a minority, constituting the high court of justice for the trial of the kiug.f A very small number among those who sat in this sti-ange ti-ibunal upon Charles the First were undoubtedly capable of taking statesman-like views of the interests of their party, and might consider his death a poU- tic expedient for consolidating the new set- tlement. It seemed to involve the army, which had openly abetted the act, and even the nation by its passive consent, in such inexpiable guilt toward the royal famDy, that neither common prudence nor a sense of shame would permit them to suffer ite restoration. But by the far greater pail; of the regicides such considerations were either overlooked or kept in the back-gi'ound. Their more powerful motive was that fierce fanatical hatred of the king, the natural fruit of long civil dissension, inflamed by preach- ers more dark and sanguinary than those they addressed, and by a peneited study of the Jewish Scriptures. They had been wrought to believe, not that his execution would be justified by state-necessity or any such feeble gi'ounds of human reasoning, but that it was a bounden duty, which with a safe conscience they could not neglect. Such was the persuasion of Ludlow and Hutchinson, the most respectable names among the regicides ; both of them free from all suspicion of interestedness or hy- pocrisy, and less intoxicated than Motives of the rest by fanaticism. " I was t™g's1od|- fully persuaded," saj'S the for- es. on the remonstrance of the army, was lost by 125 to 58 (printed 53 in Pari. Hist.). — Commons' Jour- nals. So weak was still the Republican party. It is, indeed, remarkable that this remonstrance it- self is rather against the king than absolutely asainst all monarchy ; for one of the proposals con- tained in it is that kings should be chosen by the people, and have no negative voice. * The division was on the previous question, which was lost by 129 to 83. t No di^-ision took place on any of the votes re- specting the king's tiial. Cha. I.— 1642-49.] FEOM HENRY VII. TO GEORGE U. 363 mer, " that an accommodatiou with the king was unsafe to the people of England, and unjust and wiclved in the nature of it. The former, besides that it was obvious to nil men, the king himself had proved, by the duplicity of his dealing with the Parliament, which manifestly appeared in his own pa- pers, taken at the battle of Naseby and elsewhere. Of the latter I was convinced by the express words of God's law ; ' that blood defileth the land, and the land can not be cleansed of the blood that is shed there- in but by the blood of him that shed it.' — (Numbers, xxxv., 33.) And therefore I could not consent to leave the guilt of so much blood on the nation, and thereby to draw down the just vengeance of God upon us all, when it was most evident that the war had been occasioned by the invasion of our rights and open breach of om" laws and Constitution on the king's part."* " As for Mr. Hutchinson,'" says his high-souled con- sort, " although he was veiy much confirm- ed in his judgment concerning the cause, yet being here called to an extraordinary action, whereof many were of several minds, he addressed himself to God by prayer, de- sunug the Lord that, if through any human frailty he were led into any eiTor or false opinion in those great transactions, he would open his eyes, and not suffer him to pro- ceed, but that he would confirm his spiiit in the ti'uth, and lead him by a right-en- lightened conscience ; and finding no check, but a confirmation in his conscience, that it was his duty to act as he did, he, upon se- rious debate, both privately and in his ad- dresses to God, and in conferences with conscientious, upright, unbiased persons, proceeded to sign the sentence against the king. Although he did not then believe but it might one day come to be again dis- puted among men, yet both he and others thought they could not refuse it without giving up the people of God, whom they had led forth and engaged themselves unto by the oath of God, into the hands of God's and their enemies ; and therefore he cast himself upon God's protection, acting ac- cording to the dictates of a conscience which he had sought the Lord to guide ; and accordingly the Lord did signalize his favor afterward to him."f The execution of Charles the First has * Ludlow-, i., 267. t Hutchinson, p. 303. been mentioned in later ages by „ ,. , ° *' Question oi a few with unlimited praise, by his execution some with faint and ambiguous censure, by most with vehement reproba- tion. My own judgiuent will possibly be anticipated by the reader of the preceding pages. I shall certainly not rest it on the imaginary sacredness and divine origin of royaltjs nor even on tlie irresponsibility with which the law of almost eveiy coun- try invests the person of its sovereign. Far be it from me to contend that no cases may be conceived, that no instances may be found in history, wherein the sympathy of man- kind and the sound principles of political justice would approve a public judicial sen- tence as the due reward of tyi-auny and perfidiousness. But we may confidently deny tliat Charles the First was thus to be singled out as a warning to tyrants. His offenses were not, in the worst interpreta- tion, of that atrocious character which calls down the vengeance of insulted humanity, regardless of positive law. His govei-nment had been very arbitrary ; but it may well be doubted whether any, even of his min- isters, could have suffered death for their share in it, without introducing a principle of bai'barous vindictiveness. Far from the sanguinary misanthropy of some monarchs, or the revengeful fuiy of others, he had in no instance displayed, nor does the minut- est scrutiny since made into his character entitle us to suppose, any malevolent dispo- sitions beyond some proneness to anger, and a considerable degree of harshness in his demeanor.* As for the charge of having * The king's manners veere not good. He spoke and behaved to ladies with indelicacy in public. — See Warburton's Notes on Clarendon, vii., 629, and a passage in Milton's Defeusio pro Populo Angli- cano, quoted by Harris and Brodie. He once for- got himself so far as to cane the younger Sir Henry Vane for coming into a room of the palace resei-ved for persons of higher rank. — Carte's Ormond, i., 356, where other instances are mentioned by that friend- ly writer. He had, in truth, none who loved him, till his misfortunes softened his temper and excited sympathy. An anecdote, strongly intimating the violence of Charles's temper, has been rejected by his advo- cates. It is said that Burnet, in searcliing the Hamilton papers, found that the king, on discover- ing the celebrated letter of the Scots covenanting lords to the King of France, was so incensed that he sent an order to Sir William Balfour, heutenaut- governor of the Tower, to cut oft' the head of his 1 prisoner. Lord Loudon ; but that the Marquis of I Hamilton, to whom Balfour immediatel}' communi- 364 CONSTITUTIONAL HISTORY OP ENGLAND [Chap. X. caused the bloodshed of the "war, upon which, and not on any former misgovern- ment, his condemnation was grounded, it was as il! established as it would have been insufficient. Well might the Earl of North- umberland say, when the ordinance for the king's trial was before the Lords, that the gi'eatest part of the people of England were not yet satisfied whether the king levied war first against the Houses, or the Houses against him.* The fact, in my opinion, was entirely othei-wise. It is quite anoth- er question whether the Paa-liament were justified in their resistance to the king's legal authority. But we may contend that, when Hotham, by their command, shut the gates of Hull against his sovereign, when the militia was called out in different coun- ties by an ordinance of the two Houses, both of which preceded by several weeks any levying of forces for the king, the bonds of our constitutional law were by them and their servants snapped asunder ; and it would be the mere pedanhy and chicane of pohtical casuistiy to inquire, even if the fact could be better ascertained, whether at EdgehiU, or in the minor skirmishes that preceded, the first carbine was dischai-ged by a Cavalier or a Roundhead. The ag- gi-essor in a war is not the first who uses force, but the first who renders force nec- essaiy. But, whether we may think this war to have originated in the king's or the Parlia- third of the Commons, by the principal body of the gentry, and a large proportion of other classes. If his adherents did not form, as I think they did not, the majority of the people, they were at least more numerous, beyond comparison, than those who de- manded or approved of his death. The steady, deliberate perseverance of so con- siderable a bod}' in any cause takes away the right of punishment from the conquer- ors, beyond what their own safety or reas- onable indemnification may require. The vanquished are to be judged by the rules of national, not of municipal law. Hence, if Charles, after having by a course of victo- ries or the defection of the people prostra- ted all opposition, had abused his triumph by the execution of Essex or Hampden, Fairfax or Cromwell, I think that later ages would have disapproved of their deaths as positive- ly, though not quite as vehemently, as they have of his own. The line is not easily drawn, in absU'act reasoning, between the ti'eason which is justly punished, and the social schism which is beyond the proper boundaries of law ; but the civil war of Eng- land seems plainly to fall within the latter description. These objections strike me as unanswerable, even if the trial of Charles had been sanctioned by the voice of the na- tion through its legitimate representatives, or at least such a fair and full convention as might, in gi-eat necessity, supply the place of lawful authority. But it was, as we all ment's aggi-ession, it is still evident that the | know, the act of a bold but very small nii- noritj-, who, having forcibly expelled their colleagues fi'om Parliament, had usurped, under tire protection of a military force, that power which all England reckoned illegal. I c£in not perceive what there was in the imagined solemnity of this proceeding, in that insolent mockery of the forms of jus- tice, accompanied by all iinfairness and in- humanity in its circumstances, which can alleviate the guilt of the transaction ; and if it be alleged that many of the regicides were firmly persuaded in their consciences of the right and duty of condemning the king, we may surely remember that private murder- ers have often had the same apology. In discussing each particular ti-ansaction in the life of Charles, as of any oth- jjis char- er sovereign, it is required by the truth of history to spare no just animadver- sion upon his faults, especially where much former had a fair case with the nation, a cause which it was no plain violation of justice to defend. He was supported by the greater part of the Peers, by full one cated this, urged so strons'ly on the king that the city would be up iu anus ou this violence, that with reluctance he withdrew the wan-ant. This story is told by Oldmixon, Hist, of the Stuarts, p. 140. It was brought forward on Burnet's authority, and also on that of the Dake of Hamilton, killed in 1712, by Dr. Birch, no incompetent judge of histori- cal evidence : it seems confirmed by an intimation given by Burnet himself in his Memoirs of the Duke of Hamilton, p. 161. It is also mentioned by Scott of Scotstar\-et, a cotemporary writer. Har- ris, p. 3.30, quotes other authorities, earlier than the anecdote told of Bumet; and. upon the whole, I think the story deserving credit, and by no means 80 much to be slighted as the Oxford editor of Bur- net has thought fit to do. * Clement Walker, Hist, of Independency, Part II., p. 53. Cha. I— 164a-49.] FROM HENRY VU. TO GEORGE II. 365 art has been employed by the writers most in repute to cariy the sti-eam of public prej- udice in an opposite direction. But when we come to a general estimate of his char- acter, we should act unfairly not to give their full weight to those peculiar circum- stances of his condition in this worldly scene, which tend to account for and extenuate his failings. The station of kings is, in a moral sense, so unfavorable, that those who are least prone to seiTile admu'ation should be on their guard against the opposite error of an uncandid severity. There seems no fiiirer method of estuuating the inti-insic worth of a sovereign than to ti-eat him as a subject, and to judge, so far as the history of his life enables us, what he would have been in that more private and happier con- dition from which the chance of bii-th has excluded him. Tried by this test, we can not doubt that Charles the First would have been not altogether an amiable man, but one deserving of general esteem ; his firm and conscientious virtues the same, his devia- tions from right far less fi-equent than upon the throne. It is to be pleaded for this prince that his youth had breathed but the contaminated air of a profligate and servile court, that he had imbibed the lessons of arbitraiy power fi'om all who surrounded him, that he had been beh'ayed by a father's culpable blindness into the dangerous soci- ety of an ambitious, unprincipled favorite. To have maintained so much coiTectness of morality as his enemies confess, was a proof of Charles's vii-tuous dispositions ; but his advocates are compelled, also, to own that he did not escape as Httle injured by the pois- onous adulation to which he had listened. Of a temper by nature, and by want of re- straint, too passionate, though not vindic- tive ; and, though not cruel, certainly defi- cient in gentleness and humanitj', he was en- tirely unfit for the very difl^cult station of royalty, and especially for that of a Constitu- tional king. It is impossible to excuse his vi- olations of liberty on the score of ignorance, especially after the Petition of Right, be- cause his impatience of opposition from his council made it unsafe to give him any ad- vice that thwarted his determination. His other gi-eat fault was want of sincerity : a fault that appeared in all parts of his life, and from which no one who has paid the subject any attention will pretend to excul- pate him. Those, indeed, who know noth- ing but what they find in Hume, may be- lieve, on Hume's authority, that the king's cotemporaries never dreamed of imputing to him any deviation from good faith ; as if the whole conduct of the Parliament had not been evidently founded upon a distrust, which on many occasions they very explic- itly declared. But, so far as this insinceri- ty was shown in the course of his troubles, it was a failing which untoward circumstan- ces are apt to produce, and which the ex- treme hypocrisy of many among his adver- saries might sometimes palliate. Few per- sonages in histoiy, we should recollect, have had -so much of their actions revealed and commented upon as Charles ; it is, perhaps, a mortifying truth, that those who have stood highest with posterity have sel- dom been those who have been most accu- rately known. The turn of his mind was rather pecu- liar, and laid him open with some justice to very opposite censures — for an extreme ob- stinacy in retaining his opinion, and for an excessive facility in adopting that of others. But the apparent incongruity ceases when we observe that he was tenacious of ends and u-resolute as to means ; better fitted to reason than to act ; never swerving from a few main principles, but diffident of his own judgment in its application to the course of aflairs. His chief talent was an acuteness in dispute ; a talent not usually' much exer- cised by kings, but which the strange events of his life called into action. He had, un- fortunately for himself, gone into the study most fashionable in that age, of polemical theology ; and, though not at all learned, had read enough of the English divines to maintain their side of the current conti-o- versies with much dexterity. But this un- kingly talent was a poor compensation for the continual mistakes of his judgment in the art of government and the conduct of his affairs.* * Clarendon, Collier, and the Higli-Churcli writers in general, are veiy proud of the saperioiity they fancy the king to have obtained in a long argu- mentation held at Newcastle with Henderson, a Scots minister, on church authority and government. This was conducted in writing, and the papers af- terward published. They may be read in the king's Works, and in Collier, p. 8-42. It is more than in- sinuated that Henderson died of mortification at Iiia defeat. He certainly had not the excuse of the 366 CONSTITUTIONAL HISTORY OF ENGLAND [Chap. X. It s«ems natural not to leave untouched 1 B 1 kf ^'"^ place the famous prob- lem of the Icon Basilike, which has been deemed an u-refragable evidence both of the virtues and the talents of Charles. But the authenticity of this work can hard- ly be any longer a question among judicious men. We have letters from Gauden and his family, asserting it as his own in the most express terms, and making it the ground of a claim for reward. We know that the king's sons were both convinced that it was not their father's composition, and that Clarendon was satisfied of the same. If Gauden not only set up a false claim to so famous a work, but persuaded those nearest to the king to surrender that precious record, as it had been reckoned, of his dying sentiments, it was an instance of successful impudence which has hardly a parallel. But I should be content to rest the case on that intenial evidence, Avhich has been so often alleged for its authenticj- ty. The Icon has to my judgment all the air of a fictitious composition. Cold, stiff, elaborate, without a single allusion that be- speaks the superior knowledge of facts which the king must have possessed, it contains little but those rhetorical common- places which would suggest themselves to any forger. The prejudices of party, which exercise a strange influence in matters of taste, have caused this book to be extrava- gantly praised. It has, doubtless, a certain air of grave dignity, and the periods are more artificially constructed than was usual in that age (a circumstance not in favor of its authenticity) ; but the style is encum- bered with frigid metaphors, as is said to be the case in Gauden's acknowledged writ- ings ; and the thoughts are neither beauti- ful, nor always exempt from affectation. The king's letters during his imprisonment, preserved in the Clarendon State Papers, and especially one to his son, from which an extract is given in the History of the pliilosophei-, who said he had no shame in yielding to the master of fifty legions. Bat those who take the ti'onble to read these papers will probably not think one party so much the sti-ouger as to shorten the other's days. They show that Charles held those exti-avagant tenets about the authority of the Church and of the fathers which are irreconcilable with Protestantism in any country where it is not established, and are likely to drive it out where it is so. Rebellion, are more satisfactory proofs of his integrity than the labored self-panegj-r- ics of the Icon Basilike.* PART II. Abolition of the Monarcliy, and of the House of Lords. — Commonwealth. — Schemes of Crom- well.— His Conversations with Whitelock. — Unpopularity of the Parliament. — Their Fall. — Little Parliament. — Instrument of Government. — Parliament called by CromweU. — Dissolved by him. — Intrigues of the King and his Party. — Insurrectionary Movements m 1665. — Rigor- ous Measures of Cromwell. — His arbitrary Gov- ernment.— He summons another Parliament. — Designs to take the Crown ; the Project fails, but his Authority as Protector is augmented. — He aims at forming a new House of Lords. — His Death, and Character. — Richard his Son succeeds him. — Is supported by some prudent Men, but opposed by a Coalition. — Calls a Par- liament. — The Army overtlirow both. — Long Parliament restored. — Expelled again, and again restored. — Impossibility of establishing a Re- public.— Intrigues of the Royalists. — Tliey unite with the Presbyterians. — Conspiracy of 1659. — Interference of Mouk. — His Dissimulation. — Secluded Members return to their Seats. — Diffi- culties about the Restoration. — New ParUa- ment. — King restored. — ^Whether previous Con- ditions required. — Plan of reviving the Treaty of Newport inexpedient. — ^Difficulty of framing Conditions. — Conduct of the Convention about this not blamable, except in respect of the Mi- litia.— Conduct of Monk. The death of Charles the First was pressed foi-ward rather through , ' ,11 Abolition of personal hatred and superstition the monar- than out of any notion of its ne- cessity to secure a Republican administra- tion. That party was still so weak, that the Commons came more slowly, and with more diflference of judgment than might be expected, to an absolute renunciation of monarchy. They voted, indeed, that the people are, under God, the original of all just power ; and that whatever is enacted by the Commons in Parliament liath the force of law. although the consent and con- cun-ence of the king or House of Peers be not had thereto : terms manifestly not ex- * The note on this passage, which, on account of its length, was placed at the end of the volume in the first two editions, is withdrawn in this, as relating to amatter of literarj- controversy little con- nected with the general objects of this work. It is needless to add, that the author entertains not the smallest doubt about the justness of the arguments he had employed. — Xole to the Third Edition. Cha. I.— 1642-49.] FROM HENRY VII. TO GEORGE II. 367 elusive of the nominal continuance of the two latter. They altered the public style from the king's name to that of the Pai'lia- ment, and gave other indications of their intentions ; but the vote for the abolition of monarchy did not pass till the 7th of Febru- ary, after a debate, according to Whitelock, but without a division. None of that clam- orous fanaticism showed itself, Avhich, with- in the memory of many,* produced, from a far more numerous assembly, an instanta- neous decision against monarchy. Wise men might easily perceive that the regal power was only suspended through the force of circumstances, not abrogated by any real change in public opinion. The House of Lords, still less able than , , the crown to withstand the inroads and of the House of of democracy, fell by a vote of the Lords. Commons at the same time. It had contituied, during the whole progress of the war, to keep up ?is much dignity as the state of affairs would pennit; tenacious of small privileges, and offering much tem- pgrary opposition in higher matters, though always receding in the end from a conten- tion wherein it could not be successful. The Commons, in return, gave them re- spectful language, and discountenanced the rude innovators who talked against the rights of the peerage. They voted, on oc- casion of some mmors, that they held them- selves obliged, by the fundamental laws of the kingdom and their covenant, to pre- serve the peerage, with the rights and priv- ileges belonging to the House of Peers, equally with their own.f Yet this was with a secret resei-ve that the Lords should be of the same mind as themselves ; for the Upper House having resented some words dropped from Sir John Evelyn at a confer- ence concerning the removal of the king to Warwick Castle, importing that the Com- mons might be compelled to act without them, the Commons vindicating their mem- ber as if his words did not bear that inter- pretation, yet added, in the same breath, a plain liint that it was not beyond their own views of what might be done ; " hoping that their lordships did not intend by their infer- * 1827. t Pari. Hist., 349. The council of war more than once, in the year 1647, declared their intention of presei-ving the rights of the peerage. — Whitelock, 288, and Sir William Waller's Vindication, 192. ence upon the words, even in the sense they took the same, so to bind up this House to one way of proceeding as that in no case whatsoever, though never so ex- traordinary, though never so much import- ing the honor and interest of the kingdom, the Commons of England might not do their duty, for the good and safety of the king- dom, in such a way as they may, if they can not do it in such a way as they would and most desire."* After the violent seclusion of the Consti- tutional party from the House of Commons, on the 6th of December, 1648, very few, not generally more than five, peers contin- ued to meet. Their number was suddenly increased to twelve on the second of Janua- ry, when the vote of the Commons, that it is high treason in the King of England for the time being to levy war against Parlia- ment, and the ordinance constituting the high court of justice, were sent up for their concurrence. These were unanimously rejected with more spirit than some, at least, of their number might be expected to display ; yet, as if apprehensive of giving too much umbrage, they voted at their next meeting to prepare an ordinance, making it treasonable for any future King of England to levy war against the Parliament : a meas- ure quite as unconstitutional as that they had rejected. They continued to linger on the verge of annihilation during the month, making petty orders about writs of eiTor, from four to six being present : they even met on the 30th of January. On the 1st of February, six peers forming the House, it was moved " that they would take into consideration the settlement of the govern- ment of England and Ireland, in this pres- ent conjuncture of things upon the death of the king," and ordered that these lords fol- lowing (naming those present and three more) be appointed to join with a propor- tionable number of the House of Commons for that purpose. Soon after, their speak- er acquainted the House that he had that morning received a letter from the Earl of Northumberland, "with a paper inclosed, of veiy great concernment;" and for the present the House ordered that it should be sealed up with the speaker's seal. This probably related to the impending dissolu- tion of their House; for they found next * Commons' Journal, 13th and 19th of May, 1646. 3G3 CONSTITUTIONAL HISTORY OF ENGLAND [Chap. X. daj' that theii" messengers sent to the Com- mons had not been admitted. They per- sisted, however, in meeting till the 6th, when they made a trifling order, and ad- journed '"till ten o'clock to-morrow."* That mon-ow was the 25th of April, IGGO. For the Commons, having the same day re- jected, by a majority of forty-fom- to twen- tj^-nine, a motion that they would take the advice of the House of Lords in the exer- cise of the legislative power, resolved that the House of Peers was useless and danger- ous, and ought to be abolished. f It should be noticed that there was no intention of taking away the dignity of peerage ; the Lords, throughout the whole duration of the Commonwealth, retained their titles, not only in common usage, but in all legal and Parliamentaiy documents. The Earl of Pembroke, basest among the base, con- descended to sit in the House of Commons as knight for the county of Berks ; and was received, notwithstanding his proverbial meanness and stupidity, with such excess- ive honor as displayed the character of those low-minded upstarts, who formed a suffi- ciently numerous portion of the House to give their tone to its proceedings. t Thus by militarj' force, with the appro- Common- bation of an inconceivably small pro- wealth, portion of the people, the king was put to death, the ancient fundamental laws were overthrown, and a mutilated House of Commons, wherein very seldom more than seventy or eighty sat, was invested with the supreme authority. So little countenance * Lords' Journals. t Commons' Joanjals. It had been proposed to continue the Honse of Lords as a court of judica- ture, or as a court of consultation, or in some way or other to keep it up. The majority-, it wiU be ob- served, was not verj' great ; so far was the demo- cratic scheme from being universal even within the House. — Whitelock, 377. Two di\nsions had al- ready taken place; one on Jan. 9, when it was car- ried by thii-ty-one to eighteen, that " a message from the Lords should be received:" Cromwell strongly supporting the motion, and being a teller for it; and again on Jan. IS, when, the opposite party prevailing, it was negatived by twenty -five to eighteen, to ask their assent to the vote of the 4th instant, that the sovereignty resides in the Commons ; which, doubtless, if true, could not re- quire the Lords' concurrence. \ Whitelock, 396. They voted that Pembroke, as well as Salisbury and Howard of Escrick, who followed the ignominious example, should be added to all committees. had these late proceedings even from those who seemed the ruling faction, that, when the executive council of state, consisting of foity-one, had been nominated, and a test was proposed to them, declaring their ap- probation of all that had been done about the king and the kingly office, and about the House of Lords, only nineteen would sub- scribe it, though there were fourteen regi- cides on the list.* It was agreed, at length, that they should subscribe it only as to the future proceedings of the Commons. With such dissatisfaction at headquarters, there was little hoi^e from the body of the nation. f Hence, when an engagement was tendered to all civil officers and beneficed clergy, con- taining only a promise to live faithful to the Commonwealth, as it was established with- out a king or House of Lords (though the slightest test of allegiance that any govern- ment could require), it was taken with infi- nite reluctemce, and, in fact, refused by vei-y many ; the Presbyterian ministers espe- cially showing a determined averseness to the new Republican organization. J This, however, was established (such is the dominion of the sword) far beyond the conti'ol of any national sentiment. Thirty thousand veteran soldiers guarantied the mock Parliament they had permitted to reign. The sectaries, a numerous bodj', and still more active than numerous, pos- sessed, under the name of committees for various purposes appointed by the House of Commons, the principal local authorities, and restrained by a vigilant scratiny the * Commons' Journals. Whitelock. It had been referred to a committee of five members, Lisle, Holland, Robinson, Scott, and Ludlow, to recom- mend thirty -five for a council of state ; to whose nominations the Honse agreed, and added their own. — Ludlow, i., 288. They were appointed for a year; but in 1650 the House only left out two of the former Ust, besides those who were dead. — Whitelock, 441. In 1651 the change was more considerable. — Id., 48S. t Six judges agreed to hold on their commissions, six refused. Whitelock, who makes a poor figure at this time on his own showing, consented to act still as commissioner of the great seal. Those who remained in office afi'ected to stipulate that the fundamental laws should not be abolished ; and the House passed a vote to this efiect. — Whitelock, 378. t Whitelock, 444, et alibi. Baxter's Life, 64. A committee was appointed, April, 1649, to inquire about ministers who asperse the proceedings of Parliament in their pulpits. — A^Tiitelock, 395. Commonwealth.] FROM HEXRY VII. TO GEORGE II. 369 muruiiii-s of a disaffected majority. Love, an einineot Presbyterian minister, lost his head for a conspiracy, by the sentence of a high court of justice, a ti'ibuual that super- seded trial by jury.* His death struck hoiTor and consternation into that arrogant priesthood, who had begun to fancy them- selves almost beyond the scope of criminal law. The Cavaliers were prostrate in the dust ; and, anxious to retrieve something from the wreck of their long sequestered estates, had generally httle appetite to em- bark afresh in a hopeless cause ; besides that the mutual animosities between their party and the Presbyterians were still too irreconcilable to admit of any sincere co-op- eration. Hence neither made any consid- erable effort in behalf of Charles on his march, or rather flight, into England : a measure, indeed, too palpably desperate for prudent men who had learned the strength of theii' adversaries ; and the great victoiy of Worcester consummated the ti'iumph of the infant Commonwealth, or, rather, of its future master. A ti'.iiu of favoring events, more than any Schemes of deep-laid policy, had now brought Cromwell, sovereignty within the reach of Cromwell. His first schemes of ambition may probably have extended no further than a title and estate, with a great civil and niil- itaiy command in the king's name. Power had fallen into his hands because they alone were fit to wield it : he was taught by ev- ery succeeding event his own undeniable superiority over his cotemporaries in mar- tial renown, in civil prudence, in decision of character, and in the public esteem which naturally attached to these qualities. Per- haps it was not till after the battle of Wor- cester that he began to fix his thoughts, if not on the dignity of royalty, yet on an equivalent right of command. Two re- * State Trials, v., 43. Baxter says that Love's death hurt the new Common-n-ealth more than would be easily believed, and made it odious to all the religious partj' in the land except the sectaries. — Life of Baxter, 67. But "oderiut dummetuant" is the device of those who rule in revolutions. Clarendon speaks, on the coutraiy, of Love's exe- cution triumphantly. He had been distinguished by a violent sermon during the treaty of Uxbridge, for which the Parliament, on the complaiut of the king's commissioners, put him in confinement ; Thurloe, i., 65 ; State Trials, 201 : though the noble historian, as usual, represents this otherwise. He also misstates Love's dying speech. A A markable conversations, m which „ iiri -,11 conver- \\ hitelock bore a part, seem to sanons with place beyond contr-oversy the na- tiu'e of his designs. About the end of 1651, Whitelock himself, St. John, Widdriugton, Lenthall, Harrison, Desborough. Fleet- wood, and AMialley, met Cromwell, at his own request, to consider the settlement of the nation. The four former were in fa- vor of monarchy, Whitelock inclining to Charles, Widdriugton and others to the Duke of Gloucester; Desborough and Whalley were against a single person's government, and Fleetwood uncertain. Ci'omwell, who had evidently procured this conference in order to sift the inclina- tions of so many leading men, and to give some intimation of his own, broke it up with remarking, that, if it might be done with safety and preservation of their rights as Englishmen and Christians, a settlement of somewhat with monarchical power in it would be very effectual.* The obsenation he here made of a disposition among the lawyers to elect the Duke of Gloucester, as being exempt by his youth from the pre- possessions of the t^vo elder brothers, may, perhaps, have put Cromwell on releasing him from confinement, and sending him to join his family beyond sea.f Twelve months after this time, in a more confidential discourse with Whitelock alone, the general took occasion to complain both of the chief officers of the army and of the Parliament : the first, as inclined to factious murmurings, and the second, as engrossing all offices to themselves, divided into par- * Whitelock, 516. t The Parliament had resolved, 24th of July, 1650, that Henry Stuart, son of the late king, and the Lady EUznbeth, daughter of the late king, be re- moved forthwith beyond the seas, out of the hmits of this Commonwealth. Yet this intention seems to have been soon changed ; for it is resolved, Sept. 11, to give the Duke of Gloucester £1500 per an- num for his maintenance so long as he should be- have himself inoffensiveh'. Whether this proceed- ed from liberality, or from a vague idea that they might one day make use of him, is hard to say. Clarendon mentions the scheme of makmg the Duke of Gloucester king in one of his letters (iii., 38, 11th of Nov., 1651) ; but says, " Truly I do beUeve that Cromwell might as easily procure himself to be chosen king as the Duke of Gloucester; for, as none of the king's party would assist the la^t, so I am pei-suaded both Presbyterians and Independents would have much sooner the former than any of the race of him whom they have murthered." 370 CONSTITUTIONAL HISTOKY OF ENGLAND [Chap. X. ties, delaying business, guilty of gross injus- tice and partiality, and designing to perpet- uate their own authority. Whitelock, con- fessing part of this, urged that, having taken commissions fi'om them as the supreme power, it would be difficult to find means to restrain them. "What," said Cromwell, "if a man should take upon him to be king ?" " I think," answered Whitelock, " that rem- edy would be worse than the disease." "Why," rejoined the other, "do you think so 1" He then pointed out that the statute of Henry VH. gave a security to those who acted under a king which no other govera- ment could furnish ; and that the i-everence paid by the people to that title would serve to curb the extravagancies of those now in power. Whitelock replied, that their friends having engaged in a persuasion, though eiToneous, that their rights and lib- erties would be better preserved under a commonwealth than a monarchy, this state of the question would be wholly changed by Cromwell's assumption of the title, and it would become a private conti'oversy be- tween his family and that of the Stuarts. Finally, on the other's encouragement to speak fully his thoughts, he told him " that no expedient seemed so desirable as a pri- vate treaty with the king, in which he might not only provide for the security of his friends and the gi-eatness of his family, but set limits to monarchical power, keeping the command of the militia in his own hands." Cromwell merely said "that such a step would require great consideration ;" but broke off with marks of displeasm-e, and consulted Whitelock much less for some years afterward.* These projects of usurpation could not deceive the watchfulness of those whom Cromwell pretended to sei-ve. He had, on several occasions, thrown off enough of his habitual dissimulation to show the Com- monwealth's men that he was theirs only iby accident, with none of their fondness for * Id., p. 548. Lord Orreiy told Burnet tbat he ttai once mentioned to Cromwell a report that he ■was to bring in the kine, who should marry his daughter, and obsei'ved that he saw no better ex- pedient. Cromwell, vrithout expressing any dis- pleasure, said, "The king can not forgive his fa- ther's blood ;" which the other attempted to an- swer.— Burnet, i., 93. It is certain, however, that such a compromise would have been dishonorable for one party, and infamous for the other. Republican polity. The Parlia- , . ' I •' Unpopnlanty ment, in its present wreck, con- of the Paiiia- tained few leaders of superior ability ; but a natural instinct would dictate to such an assembly the distinist of a popu- lar general, even if there had been less to alaiTQ them in his behavior.* They had no means, however, to withstand him. The creatures themselves of military force, their pretensions to direct or conti-ol the army could only move scora or resentment. Their claim to a legal authority, and to the name of representatives of a people who rejected 1 and abhorred them, was perfectly impudent j When the House was fullest, their num- bers did not much exceed one hundred ; but i the ordinaiy divisions, even on subjects of j the highest moment, show an attendance of i but fifty or sixty members. They had re- 1 tained in their hands, notwitstanding the appointment of a councD of state, most of ' whom were from their own body, a great part of the executive goverament, especially the disposal of offices, f These they largely shared among themselves or their depend- ents ; and in many of their votes gave occa- sion to such charges of injustice and partial- ity as, whether time or false, will attach to a body of men so obviously self-interested. t * Cromwell, in his letter to the ParUament after the battle of Worcester, called it a crowning mercy. This, though a very intelligible expression, was taken in an invidious sense by the Republicans. t Journals, passim. t One of their most scandalous acts was the sale of the Earl of Craven's estate. He had been out of England during the war, and could not, there- fore, be reckoned a delinquent. But evidence was offered that he had seen the king in Holland ; and upon this charge, though he petitioned to be heard, and, as is said, indicted the informer for perjury, whereof he was convicted, they voted by 33 to 31 that his lands should be sold; Hazlerig, the most savage zealot of the whole faction, being a teller for the ayes. Vane for the noes. — Journals, Cth of March, 1651, and 22d of June, 1632. State Trials, v., 323. On the 20th of July in the same year, it was referred to a committee to select thirty delin- quents, whose estates should be sold for the use of the nav}'. Thus, long after the cessation of hos- tiUty, the Royalists continued to stand in jeopardy, not only collectively, but personally, from this ar- bitrary and \-indictive faction. Nor were these quahties displayed against the Royalists alone: one Josiah Primatt, who seems to have been con- nected with Lilbume, Wildm.in, and the Levelera, having presented a petition complaiuuig that Sir Arthur Hazlerig had violently dispossessed him of some colUeries, the House, after voting every part of the petition to be false, adjudged him to pay a COMMOSWEALTH.] FROM HENRY VII. TO GEORGE II. 371 It seems to be a pretty general opinion, that R popular assembly is still more frequently influenced by corrupt and dishonest motives in the disti-ibution of favors, or the decision of private affaii-s, than a ministiy of state ; whether it be that it is more probable that a man of disinterestedness and integi'ity may in the course of events rise to the conduct of government than that such virtues should belong te a majority, or that the clandestine management of court corruption renders it less scandalous and more easily varnished than the shamelessness of Parliamentaiy in- iquity. The Republican interest in the nation was almost wholly composed of two parties, both offshoots deriving sti-ength from the gi-eat stock of the army ; the Levelers, of whom Lilburne and Wildman are the most known, and the Anabaptists, Fifth Monar- chy-men, and other fanatical sectaries, head- ed by Harrison, Hewson, Overton, and a great number of officers. Though the sect- aries seemed to build their revolutionary scliemes more on their own religious views than the Levelere, they coincided in most of their objects and demands.* An equal fine of £3000 to the Commonwealth, £2000 to Hazle- rig, and £2000 more to the commissioners for com- positions.— Journals, 15th of Jan., 1651-2. There had been a project of erecting a university at Dur- ham, in favor of vphich a committee reported (18th of June, 1651), and for which the chapter lands would have made a competent endowment. Hazle- rig, however, got most of them into his own hands, and thus frustrated, perhaps, a design of great im- portance to education and literature in this country; for had a university once been established, it is Just possible, though not very likely, that the estates ■would not have reverted, on the king's restoration, to their former, but much less useful possessors. * Mrs. Hutchinson speaks very favorably of the Levelers, as they appeared about 1647, declaring against the factions of tlie Presbyterians and Inde- pendents, and the ambitious views of tlieir leaders, and especially against the unreasonable privileges claimed by the houses of Parliament collectively and personally. " Indeed, as all virtues are medi- urns and have their extremes, there rose up after in that House a people who endeavored the level- ing of all estates and qualities, which those sober Levelers were never guilty of desiring; but were men of just and sober principles, of honest and re- ligious ends, and were therefore hated by all the designing, self-interested men of both factions. Colonel Hutchinson had a gi'eat intimacy with many of these ; and so far as they acted according to the just, pious, and pubhc spirit which they pro fessed, owned them and protected them as far as he had power. Tliese were they who first began representation of the people in short Par liaments, an extensive alteration of the com- mon law, the abolition of tithes, and, indeed, of all regular stipends to the ministry, a full toleration of religious worship, were refor- mations which they concurred in requiring, as the only substantial fruits of their ardu- ous stnjggle.* Some among the wilder sects dreamed of overthrowing all civil in- stitutions. These factions were not with- out friends in the Commons ; but the great- er part were not inclined to gratify them by taking away the provision of the Church, and much less to divest themselves of their own authority. They voted, indeed, that tithes should cease as soon as a competent maintenance should be otherwise provided for the clergy. f They appointed a com- mission to consider the reformation of the law, in consequence of repeated petitions against many of its inconveniences and abu- ses ; who, though taxed, of course, with dil- atoriness by the ardent innovators, suggest- ed many useful improvements, several of which have been adopted in more regular times, though with too cautious delay. ( They proceeded rather slowly and reluct- antly to frame a scheme for future Parlia- ments, and resolved that they should consist to discover the ambition of Lieut.-general Crom- well and his idolaters, and to suspect and dislike it."— P. 285. * Whitelock, 399, 401. The Levelers rose in arms at Banbury and other places, but were soon put down, chiefly through the energy of CromweU, and their ruigleaders shot. t It was referred to a committee, 29th April, 1052, to consider how a convenient and competent maintenance for a godly and able ministry may be settled, in lieu of tithes. A proposed addition, that tithes be paid as before till such maintenance be settled, was canied by 27 to 17. t Journals, 19th of Jan., 1652. Hale was the first named on this commission, and took an active part; but he was associated with some furious Lev- elers, Desborough, Tomlinson, and Hugh Peters, so that it is liard to know how far he concurred in the alterations suggested. Many of them, howev- er, seem to bear marks of his hand. — Whitelock, 475, 517, 519, 820, et alibi. There had been pre- viously a committee for the same purpose in 1650. — See a list of the acts prepared by them in Somers Tracts, vi., 177 ; several of them are worthy of at- tention. Ludlow, indeed, blames the commission for slowness ; but their delay seems to have been very justifiable, and their suggestions highly valu- able. It even appears that they drew up a book containing a regular digest or code, which was or- dered to be printed.— Journals, 20th of January, 1653. 372 CONSTITUTIONAL HISTORY OF ENGLAND [Chat. X. of 400, to be chosen in due proportion by the several counties, nearly upon the model sug- gested by Lilburne, and afterward carried , „ into effect by Cromwell.* It was Their fall. . , i i i , With much delay and difficulty, amid the loud murmurs of their adherents, that they could be brought to any vote in regard to their own dissolution. It passed on November 17, 1651, after some very close divisions, that they should cease to exist as a Parliament on November 3, 1654. f The Republicans out of doors, who deemed annual, or at least biennial. Parliaments es- sential to theh definition of liberty, were indignant at so unreasonable a prolongation. Thus they forfeited the good-will of the only paity on whom they could have relied. Cromwell dexti-ously aggravated their faults : he complained of their delaying the settle- ment of the nation ; he persuaded the fanat- ics of his concuiTence in their own schemes ; the Parliament, in tui'n, conspired against his power, and, as the conspiracies of so many can never be secret, let it be seen that one or other must be destroyed ; thus giving his forcible expulsion of them the pretext of self-defense. They fell with no regi-et, or, ratJier, with much joy of the nation, except a few who dreaded more from the alterna- tive of militaiy usm'pation or anarchy than from an assembly which still retained the names and forms so precious in the eyes * A committee was named, 15th of May, 1649, to take into cousideratiou the settling of the succes- sion of future Parliaments and regulating theii- elections. Nothing more appears to have been done till Oct. 11th, when the committee was or- dered to meet next day, and so de die in diem, and to give an account thereof to the House on Tues- day come fortnight ; all that came to have voices, but the special care thereof commended to Sir Hem-y Vane, Colonel Ludlow, mid Mr. Robinson. We lind nothing further till Jan. 3d, 1650, when the committee is ordered to make its report the next Wednesday. This is done accordingly, Jan. 9, when Sir H. Vane reports the resolutions of the committee, one of which was, that the number in future ParUaments should be 400. This was car- ried, after negativing the previous questioji in a committee of the whole House. They proceeded several days aftei^ward on the same basiness. — See, also, Ludlow, p. 313, 435. t Two divisions had taken place, Nov. 14 (the first on tlie previous question), on a motion that it is convenient to declare a certain time for the con- tinuance of this Parliament, 50 to 46, and 49 to 47. On the last division, Cromwell and St. John were tellers for the ayes. of tliose who adhere to the ancient institu- tions of their counti-y.* It was now the deep policy of Cromwell to render himself the sole refuge Lime par- of those who valued the laws, or ''anient, the regular ecclesiastical ministi'y, or their own estates, all in peril from the mad en- thusiasts who were in hopes to prevail.^ These he had admitted into that motley convention of one hundred and twenty per- sons, sometimes called Barebone's Parlia- ment, but more commonly the Little Pai- liament, on whom his council of officers pretended to devolve the govern- , * <5 Instrument inent, mingling them with a suffi- of Guvem- cient proportion of a superior class whom he could direct.* This assembly * Whitelock was one of these ; and being at that time out of Cromwell's favor, inveighs much against this destruction of the power fi-om which he had taken his commission, p. 552, 554. St. John appears to have concuiTed in the measure. In fact, there had so long been an end of law, that one usur- pation might seem as rightful as another. But, while any House of Commons remained, there was a stock left from wliich the ancient Constitution might possibly germinate. Mrs. Macaulay, whose lamentations over the Rump did not certainly pro- ceed from this cause, thus vents her wrath on the English nation : " An acquiescence thus universal in the insult committed on the guardians of the In- fant RepubUc, and the first step toward the usur- pation of Cromwell, fixes an indelible stain on the character of the English, as a people basely and incorrigibly attached to the sovereignty of individ- uals, and of natures too ignoble to endure an em- pu'e of equal laws," vol. v., p. 112. t Hanison, when Ludlow asked him why he had joined Cromwell to turn out the Parliament, said, he thought Cromwell would own and favor a set of men who acted on higher principles than those of civil liberty ; and quoted fi'om Daniel, " that the saints shall take the kingdom and possess it.'' Ludlow argued against him ; but what was argu- ment to such a head ?— Mem. of Ludlow, p. 565. Not man}- months after, Cromwell sent his coadju- tor to Carisbrook Castle. t Hume speaks of this assembly as chiefl}' com- posed of the lowest mechanics. But this was not the case. Some persons of inferior rank there were, but a large proportion of the members were men of good family, or, at least, military distinc- tion, as the list of the names in the Parliamentary Histoiy is sufficient to prove ; and Whitelock re- marks, " It was much wondered at by some that these gentlemen, many of them being persons of fortune and knowledge, would at tliis summons, and from those hands, take upon them the supreme authority of this nation," p. 559. With respect to this, it may be obsen'ed, that tliose who have lived in revolutions find it almost necessary, whether their own interests or those of their country are Commonwealth.] FROM HENRY VII. TO GEORGE II. 373 took cnre to avoid the censure which their predecessors had incurred, by passing a good many bills, and applying themselves with a vigorous hand to the reformation of what tlieir party deemed the most essen- tial grievances, those of the law and of the Church. They voted the abolition of the Comt of Chancery, a measure provoked by its insufferable delay, its engi-ossing of al- most nil suits, and the uncertainty of its de- cisions. They appointed a committee to consider of a new body of the law, without naming any lawyer upon it.* They nom- inated a set of commissioners to preside in courts of justice, among whom they with difficulty admitted two of that profession :| they irritated the clergy by enacting that marriages should be solemnized befoi'e jus- tices of the peace ;t they alarmed them still more by manifesting a determination to take awaj' their tithes, without security for an equivalent maintenance. § Thus having united against itself these two powerful bodies, whom neither kings nor Parliaments in England have in general offended with impunity, this little synod of legislators was ripe for destruction. Their last vote was to negative a report of their own commit- tee, recommending that such as should be approved as preachers of the Gospel .should enjoy the maintenance already settled by law; and that the payment of tithes, as a just property, should be enforced by the tbeir aim, to comply with all changes, and take a greater part in stappoi-ting them, than men of in- flexible consciences can approve. No one felt this more than Wliitclock ; and his remark in this place is a satire upon all his conduct. He was at the moment dissatisfied, and out of Cromwell's favor, but lost no time in regaining it. * Journals, August 19. This was carried by 46 to 38 against Cromwell's party ; yet Cromwell, two years afterward, published an ordinance for regu- lating and limiting the jurisdiction of chancery, which offended Whitelock so much that he resign- ed the great seal, not liaving been consulted in framing the regulations. This is a rare instance in his life ; and he vaunts much of his conscience accordingly, but thankfoUy accepted the office of commissioner of the treasui-y instead, p. 631, 625. He does not seem, by his own account, to have given much satisfaction to suitors in equity (p. 548) ; yet the fault may have been theirs, cr the system's. t 4th of October. t This had been proposed by the coimnission for amendment of the law appointed in the Long Par- liament. The great number of dissenters from the established religion rendered it a very reasonable measure. $ Thurloe, i., 369 ; iii., 132. magistrates. The House having, by the majority of two, disagreed with this re- port,* the speaker, two days after, having secured a majority of those present, pro- posed the sun-ender of their power into the hands of Cromwell, who put an end to the opposition of the rest by turning them out of doors. It can admit of no doubt that the despot- ism of a wise man is more tolerable than that of political or religious fanatics ; and it rarely happens that there is any better remedy in revolutions which have given the latter an ascendant. Cromwell's assump- tion, therefore, of the title of Protector was a necessary and wholesome usurpation, however he may have caused the necessity ; it secured the nation from the mischievous lunacy of the Anabaptists, and from the more cool-blooded tyranny of that little ol- igarchy which arrogjited to itself the name of Commonwealth's men. Though a gi-oss and glaring evidence of the omnipotence of the army, the instrument under which he took his title accorded to him no unneces- saiy executive authority. The sovereign- ty still resided in the Parliament ; he had no negative voice on their laws. Until the meeting of the next Parliament, a power was given him of making temporary ordi- nances ; but this was not, as Hume, on the authority of Clarendon and Warwick, has supposed, and as his conduct, if that were any proof of the law, might lead us to in- fer, designed to exist in future inteiTals of the Legislature. f It would be scarcely * Journals, 2d and 10th of Dec, 1653. White- lock. See the sixth volume of the Somers Tracts., p. 266, for a long and rather able vindication of this Parliament by one of its members. Ludlow also speaks pretty well of it, p. 471 ; and says, ti'uly enough, that Cromwell frightened the lawj'ers and clergy, by showing what the Parliament meant to do with them, which made them in a hun-y to have it destroyed. — See, also, Pari. Hist., 1412, 1414. t Sec the Instrument of Government in White- lock, p. 571 ; or Somers Tracts, vi., 257. Ludlow says that some of the officers opposed this ; but Lambert forced it down their throats, p. 276. Crom- well made good use of this temporary power. The union of Scotland with England was by one of these i ordinances, April 12 (Whitelock, 586) ; and he im- posed an assessment of .£120,000 monthly, for three months, and £90,000 for the next three, instead of £70,000, which had been paid before (Id., 591), be- sides many other ordinances of a legislative nature. "I am very glad," says Fleetwood (Feb., 1655. Thurloe, iii., 183), " to hear his liiglmess has declin- 374 CONSTITUTIONAL HISTORY OF ENGLAND [Chap. X. worth while, however, to pay much atten- i tion to a form of government which was so : httle regarded, except as it marks the jeal- ! ousy of royal power, which those most at- tached to Cromwell, and least capable of any proper notions of liberty, continued to ( entertain. | In the ascent of this bold usurper to great- | ness, he had successively employed and thrown away several of the powerful fac- ! lions who distracted the nation. He had , encouraged the Levelers and persecuted j them ; he had flattered the Long Parlia- 1 ment and betrayed it ; he had made use of the sectaries to crush the Commonwealth ; he had spurned the sectaries in his last ad- vance to power. These, with the Royal- , ists and the Presbyterians, forming, in ef- 1 feet, the whole people, though too disunited for such a coalition as must have overthrown him, were the perpetual, irreconcilable en- i amies of his administration. Master of his I army, which he well knew how to manage, | surrounded by a few deep and experienced ^ counselors, furnished by liis spies with the completest intelligence of all designs against him, he had no gi-eat cause of alarm from j open resistance. But he was bound by the », ,. ^ Instrument of Government to call Parliament called by a Parliament; and in any Parlia- , Cromwell, j^g^^ jjjg adversaries must be form- j idable. He adopted in both those which ^ he summoned the reformed model already | determined, limiting the number of repre- ■ sentatives to 400, to be chosen partly in the j counties, according to then- wealth or sup- j posed population, by electors possessing ei- | ther freeholds, or any real or movable prop- , erty to the value of d£200 ; paitlj- by the ! more considerable boroughs, in whose vaii- | ous rights of election no change appeeirs to j have been made.* This alteration, con- ' formable to the equalizing principles of the j age, did not produce so considerable a dif- j ference in the persons returned as it per- | haps might at present.f The couit-party, | ed the legislative power, which by the Instrument of Government, in my opinion, he could not exer- cise after this last Parliament's meeting." And the Parliament of 16.56, at the Protector's desire, confirmed all ordinances made since the dissolution of the Long Parliament. — Thnrloe, vi., 243. * I infer this from the report of a committee of privileges on the election for Lj-nn, Oct. 20, 1665. — See, also. Journals. Nov. 26, 1654. t It is remarkable that Clarendon seems to ap- as those subservient to him were called, were powerful through the subjection of the electors to the army. But they were not able to exclude the Presbyterian and Republican interests ; the latter, headed by Bradshaw, Hazlerig, and Scott, eager to thwart the power which they were com- pelled to obey.* Hence they began by taking into consideration the whole Instru- ment of Government, and even resolved themselves into a committee to debate its leading article, the Protector's authority. Cromwell, his supporters having lost this question on a division of 141 to 136, thought it time to interfere. He gave them to un- derstand that the government by a single person and a Parliament was a fundament- al principle, not subject to their discussion, and obliged every member to a recognition of it, solemnly promising neither to attempt nor to concur in any alteration of that arti- cle, f The Commons voted, how- Dissolved ever, that this recognition should not extend to the entire Instrument, con- sisting of foity-two articles : and went on to discuss them with such heat and prolix- ity, that after five months, the limited term of theu' session, the Protector, having ob- tained the ratification of his new scheme neither so fully nor so willingly as he de- sired, particularly having been disappointed by the great majority of 200 to 60, which voted the Protectorate to be elective, not hereditaiy, dissolved the Parliament with no small marks of dissatisfaction. J prove this model of a Parliament, sajing, " it was then generally looked upon as an alteration fit to be more warrantably made, and in a better time." * Bourdeaux, the French ambassador, says, "Some were for Bradshaw as speaker, but the Protestant party carried it for LenthaU. By this beginning one may judge what the authority of the Lord Protector will be in this Parliament. How- ever, it was observed that as often as he spoke in his speech of liberty or religion, the members did seem to rejoice with acclamations of joy." — Thnr- loe, v., 588. But the election of LenthaU appears by Guibbon Goddard's Journal, lately published in the Introduction to Burton's Diary, to have been unanimous. t Journals, 14th and 18th of Sept. Pari. Hist., 1445, 1459. Whitelock, 605, &c. Ludlow, 499. Goddard's Journal, 32. i This di\"ision is not recorded in the Journals, in consequence, I suppose, of its having been re- solved in a committee of the whole House. Bat it is impossible to doubt the fact, which is referred to Oct. 19, by a letter of Bourdeaux, the French am- bassador (Thurloe, ii., 681), who obser^•es, " Here- CoMMoswEALTH.] FEOM HENRY VII. TO GEORGE II. 375 The banished king, meanwhile, began to , . , recover a little of that political Intrigues of ' the king and importance which the battle of his party. Worcester had seemed almost to extinguish. So ill supported by his Eng- lish adherents on that occasion, so incapa- ble with a better anny than he had any prospect of ever raising again, to make a stand against the genius and fortune of the usurper, it was vain to expect that he could be restored by any domestic insuiTection until the disunion of the prevailing factions should offer some more favorable opportu- nity. But this was too distant a prospect for his court of staiving followers. He had, from the beginning, looked around for foi-- eign assistance ; but France was distracted by her own U'oubles ; Spain deemed it bet- ter policy to cultivate the new Common- wealth; and even Holland, though engaged in a dangerous war with England, did not think it worth while to accept his offer of joining her fleet, in order to try his influ- ence with the English seamen.* Totally unscrupulous as to the means by which he might reign, even at the moment that he by it is easily discerned that the nation is nowise affected to his family, nor moch to himself. With- out doabt he will strengthen his army, and keep that in a good posture." It is also alluded to by Whitelock, 609. They resolved to keep the mili- tia in the power of the Parliament, and that the Protector's negative should extend only to such bills as might alter the Instrument ; and in other cases, if he did not pass bills within twenty days, they were to become laws without his consent. — Journals, Nov. 10, 16.54. Whitelock, 608. This was carried against the court by 109 to 85. Lud- low insinuates that this Parliament did not sit out its legal term of five months, Cromwell having in- terpreted the months to be lunar instead of calen- dar. Hume has adopted this notion; but it is groundless, the month in law being always of twenty-eight days, unless the contrary be express- ed. Whitelock says that Cromwell's dissolution of the Parliament, because he found them not so pliable to his pnrposes as he expected, caused much discontent iu them and others ; but that he valued it not, esteeming himself above those things, p. 618. He gave out that the Parliament were concerned in the conspiracy to bring in the king. * Exiles are seldom scrupulous : we find that Charles was willing to propos^(U) the States, in re- lam for their acknowledging his title, " such pres- ent and lasting advantages to them by this aUiauce as may appear most considerable to that narion and to their posterity, and a valuable compensation for whatever present advantages the king can re- ceive by it." — Clarendon State Papers, iii., 90. These intrigues would have justly made him odious in England. was ti'eating to become the covenanted king of Scotland, with every solemn renuncia- tion of popery, Chai-les had recourse to a very delicate negotiation, which deserves remark, as having led, after a long course of time, but by gi-adual steps, to the final downfall of his family. With the advice of Ormond, and with the concuirence of Hyde, he attempted to interest the pope (Innocent X.) on his side, as the most pow- erful intercessor Viith. the Catholic princes of Europe.* For this purpose, it was nec- essary to promise toleration, at least, to the Catholics. The king's ambassadors to Spain in 1650, Cottington and Hyde, and other agents dispatched to Rome at the same time, were empowered to offer an entire repeal of the penal laws.f The king him- self, some time afterward, wrote a letter to the pope, wherein he repeated this assu- rance. That court, however, well aware of the hereditary duplicity of the Stuarts, received his overtures with haughty con- tempt. The pope returned no answer to the king's letter ; but one was received af- ter many months fi-om the general of the Jesuits, requiring that Charles should de- clare himself a Catholic, since the goods of ' the Church could not be lavished for the support of an heretical prince. t Even af- ter this insolent refusal, the wretched ex- * Ormond wrote strongly to this effect, after the battle of Worcester, convinced that nothing but foreign assistance could restore the king. " Among Protestants there is none that hath the power, and among the Catholics it is visible." — Carte's Let- ters, i., 461. t Clarendon State Papers, ii., 481, et saspe aK- bi. The Protestant zeal of Hyde had surely de- serted him ; and his veracity in one letter gave way also, see vol. iii., p. 158. But the gi'eat criminali- ty of all these negotiations lay in this, that Charles was by them soliciting such a measure of foreign aid as would make him at once the tjTant of Eng- land and the vassal of Spain ; since no free Parlia- ment, however Royalist, was likely to repeal all the laws against poperj'. " That which the king will be ready and willing to do, is to give his con- sent for the repeal of all the penal laws and stat- utes wliich have been made in the prejudice of Catholics, and to put them into the same condition as his other subjects." — Cottington to Father Bap- thorpe. Id., 541. These negotiations with Rome were soon known ; and a tract was published by the Parliament's authority, containing the docu- ments. Notwithstanding the delirium of the Res- toration, this had made an impression which was not afterward effaced. t Clarendon State Papers, iii , 181. 376 CONSTITUTIONAL HISTOKY OF ENGLAND [Chap. X. iles still clung, at times, to the vain hope of succor, which as Protestants and English- men they could not honorably demand.* But many of them remarked too clearly the conditions on which assistance might be ob- tained ; the court of Charles, openly or in secret, began to pass over to the Catholic Church ; and the contagion soon spread to the highest places. In the year 16.54, the Royalist intrigues in England began to grow more active and formidable through the accession of many discontented Republicans. f Though there could be no coalition, properly speaking, between such irreconcilable factions, they came into a sort of tacit agi-eement, as is not unusual, to act in concert for the only purjjose they entertained alike, the destruc- tion of their common enemy. Major Wild- man, a name not veiy familiar to the gen- eral reader, but which occurs perpetually, for almost half a century, when we look into more secret history, one of those dark , and restless spirits who delight in the deep game of conspiracy against every govern- ment, seems to have been the first mover of this unnatural combination. He had been ■ early engaged in the schemes of the Lev- elers, and was exposed to the jealous ob- | servation of the ruling powers. It appears most probable that his views were to estab- ' lish a Commonwealth, and to make the Royalists his dupes. In his correspond- ence, however, with Brussels, he engaged to restore the king. Both parties were to rise in anns against the new tyranny ; and the nation's temper was tried by clandes- tine intrigues in almost every county. t * " The pope verj- well knows, ' says Hyde to ' Clement, an agent at the court of Rome, 2d April, 1656, " how far the king is from thoughts of sever- ' ity against his Catholic subjects ; nay, that he doth desire to pat them into the same condition with his other subjects, and that no man shaU suffer in any consideration for being a Catholic."' — Id., 291. t Clarendon's History of the Rebellion, b. 14. State Papers, iii., 263, 300, ic. Whitelock ob- serves at this time. " Many sober and faithftl pa- triots did begin to incline to the kind's restoration :" I and hints, that this was his opinion, which excited j Cromwell's jealousy of him, p. 620. j t Clarendon's History, vii., 129. State Papers. I iii., 265, &c. These Levelers were verj- hostile to | the interference of Hyde and Ormond, judgine j them too inflexibly attached to the ancient Consti- ' tution: but this hostilitj- recommended them tooth- i ers of the banished king's court who showed the ! game sentiments. I Greater reliance, however, was placed on the project of assassinating Cromwell. Nei- ther party were by any means scrupulous oti this score: if we have not positive evidence of Charles's concurrence in this scheme, it would be preposterous to suppose that he would have been withheld by any moral hesitation. It is freqently mentioned with- out any disapprobation by Clarendon in his private letters and, as the RoyaUsts cer- tainly justified the murders of Ascham and Dorislaus, they could not, in common sense or consistency, have scrupled one so incom- parably more capable of defense.! A Mr. Gerard suffered death for one of these plots to kill Cromwell : justly sentenced, though by an illegal tribunal.^ In the year 16.5-5. Penmddock, a Wilt- shire gentleman, with a very tri- itsorrec- fling force, entered Sali.«buiT at ZT^Jl.,... e ' J movements the time of the assizes, and, de- 'q daring for the king, seized the judge and the sheriff. § This Uttle rebellion, meeting with no resistance from the people, but a supineness equally fatal, was soon quelled. It roused Cromwell to secure himself by an unprecedented exercise of power. In possession of all the secrets of his enemies, * P. 315. 324, 343. Thm-loe, i., 360, 510. In the same volume, p. 248, we find even a declaratioQ from the king, dated at Paris, 3d of May. 1654, of- fering i500 per annum to any one who sbonld kiH Cromwell, and pardon to any one who should leave that party, except Bradshaw, Lenthall. and Hazle- rig. But this seems unlikely to be authentic : Charles would not have avowed a design of assas- sination so openly ; and it is strange that Lenthall and Hazlerig, especially the former, should be thus exempted from pardon, rather than so many regi- cides. t See what Clarendon says of Ascham's death. State Papers, ii., 542. In another place he observes, " It is a worse and a baser thing that any man should appear in any part beyond sea under the character of an agent from the rebels, and not have his throat cut." — Id., iii.. 144. X State Trials, 518. Thurkje, ii, 416. Some of the malcontent Commonwealth's men were also eager to get rid of Cromwell by assassination ; Wildman, Saxby, Titus. Syndercome's story is well known : he was connected in the conspiracy with those already mentioned. The famous pam- phlet by Titus, Kiffing no Murder, was printed in 16.57.— Clarendon State Papers, 315, 324, 343. 9 A very reprehensible passage occurs in Clar- endon's account of this transaction, vol vii.. p. 140, where he blames and derides the insurgents fat not putting Chief-justice Rolle and others to death, which would have been a detestable and useless murder. Commonwealth.] FROM HENRY VH. TO GEORGE II. 377 he knew that want of concert or courage had alone prevented a general rising, to- ward which, indeed, there had been some movements in the midland counties.* He was aware of his own impopularity, and the national bias toward the exiled king. Juries did not willingly convict the sharers in Pen- ruddock's rebellion.! To govern according to law may sometimes be a usurper's wish, but can seldom be in his power. The Pro- „. tector abandoned all thought of it. Kigorous ^ _ ^ measures of Dividing the kingdom into dis- Cromweii. jj-j^jg^ jjg placed at the head of each a major-general as a sort of military magistrate, responsible for the subjection of his prefectui-e. These were eleven in number, men bitterly hostile to the Royal- ist party, and insolent toward all civil au- thority.J They were employed to secure the payment of a tax of ten per cent., im- posed by Cromwell's arbitraiy will on those who had ever sided with the king during the late wars, where their estates exceed- ed c^lOO per annum. The major-gener- als, in their correspondence printed among Thurloe's papers, display a i-apacity and oppression beyond their master's. They * Whitelock, 6\8, 620. Ludlow, 513. Thurloe, iii., 264, and through more than half the volume, pas- sim, lu the preceding volume we have abuadant proofs how completely Master Cromwell was of the Royalist schemes. The "sealed knot" of the king's friends in London is mentioned as frequently as we find it in the Clai'endon Papers at the same time. t Thurloe, iii., 371, &c. " Pem-uddock and Grove," Ludlow says, "could not have been justly con- demned, if they had as sure a foundation in what tliey declared for as what they declared against. But certainly it can never be esteemed by a wise man to be worth the scratch of a finger to remove a single person acting by an arbitrary power, in order to set up another with the same unhmited authority." — P. 518. This is a just and manly sen- timent. Woe to those who do not recognize it ! But is it fair to say that the Royalists were con- tending to set up an unlimited authority ? i They were originally ten, Lambert, Desbor- oneh, Whalley, Goft'e, Fleetwood, Skippon, Kelsey, Butler, Worseley, and Berry. — Thurloe, iii., 701. Barkstead was afterward added. " The major- generals," says Ludlow, "carried things with un- heard-of insolence in their several precincts, deci- mating to extremity whom they pleased, and in- terrupting the proceedings at law upon petitions of those who pretended themselves aggrieved ; threatening such as would not yield a ready sub- mission to their orders with transportation to Ja- maica, or some other plantation in the West In- dies," &c. — P. 559. complain that the nimiber of those exempt- ed is too great ; they press for harsher measures ; they incline to the unfavorable construction in every doubtful case ; they dwell on the growth of malignancy and the general disaffection.* It was not, indeed, likely to be mitigated by this unparalleled tyranny. All illusion was now gone as to the pretended benefits of the civil war. It had ended in a despotism, compared to which all the illegal practices of former kings, all that had cost Charles his life and crown, appeared as dust in the balance. For what was ship-money, a general burd- en, by the side of the present decimation of a single class, whose offense had long been expiated by a composition and effaced by an act of indemnity ? or were the ex- cessive punishments of the Star Chamber so odious as the capital executions inflicted without ti-ial by peers, whenever it suited the usurper to erect his high court of jus- tice ? A sense of present evils not only excited a burning desire to live again under the ancient monarchy, but obliterated, espe- cially in the new generation, that had no distinct remembrance of them, the appre- hension of its former abuses. f * Thurloe, vol. iv., passim. The unpopularity of Cromwell's government appears strongly in the letters of this collection. Duckinfield, a Cheshire gentleman, writes : " Charles Stuart hath five hun- dred friends in these adjacent counties for every one friend to you among them." — Vol, iii., 29J. t It may be fair toward Cromwell to give his own apology for the decimation of the Rovalists, in adeclaration published 16G5. " It is a trouble to us to be still rubbing upon the old sore, disobliging those whom we hoped time and patience might make friends ; but we can with comfort appeal to God, and dare also to their own consciences, wheth- er this way of proceeding with them hath been the matter of our choice, or that which we have sought an occasion for ; or whether, contrary to our own inclinations and the constant course of our carriage toward them, which hath been to oblis'e thera by kindness to forsake their former principles, which God hath so often and so eminently bore witness against, we have not been constrained and neces- sitated hereunto, and without the doing whereof we should have been wanting to our duty to God and these nations. " That character of difference between them and the rest of the people which is now put uyou them is occasioned by themselves, not by us. There is nothing they have more industriously labored in than this — to keep themselves distinguished from the weU-afi'ected of this nation ; to which end they have kept their conversation apart, as if they would avoid the very beginnings of union ; have bred and 37S COXSTITUTIOXAL HISTORY OF ENGLAND [Chap. X. If this decimation of the Royalists could His arbitrary poss for an act of Severity toward government. ^ proscribed ftictiou, in which the rest of the nation might fancy themselves not interested, Cromwell did not fail to show that he designed to exert an equally despot- ic command over eveiy man's property. "With the advice of his council, he had im- posed, or, as I conceive (for it is not clearly explained), continued, a dutj- on merchan- dise beyond the time limited by law. A Mr. George Cony having refused to pay this tax, it was enforced from him, on which he sued the collector. Cromwell sent his counsel, Maynard, Twisden, and Wyndham, to the Tower, who soon petitioned for liber- ty, and abandoned their client. Rolle, the chief-justice, when the cause came on, dared not give judgment against the Pro- tector; yet, not caring to decide in his favor, postponed the case till the next term, and meanwhile retired from the bench. Glyn, who succeeded him upon it, took care to have this business accommodated with Co- ny, who, at some loss of public reputation, withdrew his suit. Sir Peter Wentworth, having brought a similar action, was sum- moned before the council, and asked if he "would give it up. " If you command me," he replied to Cromwell, " I must submit;" which the Protector did, and the action was withdrawn.* Though it can not be said that such an in- teiference with the privileges of advocates or the integrity of judges was without pre- cedents in the times of the Stuarts, yet it had never been done in so public or shame- educated their children by the sequestered and •ejected clergy, and very much confined their mar- riages and alliances within their own party, as if they meant to entail their quarrel, and prevent the means to reconcile posteritj' ; which, with the great pains they take upon all occasions to lessen ■and suppress the esteem and honor of the English nation in all their actions and undertakings abroad, striving withal to make other nations distinguish their interest from it, gives us ground to judge that they have separated themselves from the body of the nation; and therefore we leave it to all man- kind to judge whether we ought not to be timely jealous of that separation, and to proceed so against them as they may be at the charge of those reme- dies which are required against the dangers they bave bred." * Ludlow, 528, Clarendon, &c. Clarendon re- lates the same story, with additional circumstances of Cromwell's audacious contempt for the courts of Justice, and for the verj- name of Magna Cbarta. less a manner. Several other instances wherein the usurper diverted justice from its com'se, or violated the known securities of E uglishmen, will be found in most gener- al histories ; not to dwell on that most fla- grant of all, the erection of his high court of justice, by which Gerard and Vowel in 1654, Slingsby and Hewit in 16.58, were brought to the scaffold.* I can not, there- fore, agree in the praises which have been showered upon Cromwell for the just ad- ministration of the laws under his dominion. That, between paity and party, the ordina- ry civil rights of men were fairly dealt with, is no extraordinary praise ; and it may be admitted that he filled the benches of just- ice with able lawyers, though not so consid- erable as those of the reign of Charles the Second ; but it is manifest that, so far as his authority was concerned, no hereditaiy des- pot, proud in the crimes of a hundred an- cestors, could more have spumed at every limitation than this soldier of a Common- wealth, f Amid so general a hatred, trusting to the effect of an equally general ter- „ ror, the Protecter ventured to another Par- summon a Pai'liament in 1656. Besides the common necessities for money, he had doubtless in his head that remarka- ble scheme which was developed during its * State Trials, vi. Whitelock advised the Pro- tector to proceed according to law against Hewit and Slingsby ; " but his highness was too much in love with the new way." — P. 673. t The late editor of the State Trials, v., 93.5, has introduced a sort of episodical dissertation on the administration of justice during the Conamonwealth, with the view, as far as appears, of setting Crom- well in a favorable light. For this pnrjjose he quotes several passages of vague commendation from different authors, and among others one from Burke, written in haste, to serve an immediate purpose, and evidently from a very superficial rec- ollection of our historj'. It has been said that Cromwell sought out men of character from the party most opposite to his designs. The proof given is the appointment of Hale to be a puisne judge. But Hale had not been a Loyalist, that is, an adherent of Charles, and had taken the En- gagement as well as the Covenant. It was no great effort of virtue to place an eminent lawyer and worthy man on the bench ; and it is to be re- membered that Hale fell under the usurper's dis- pleasure for administering justice with an impar- tiality that did not suit his govermnent, and ceased to go the circuit because the criminal law was not allowed to have its course. Commonwealth.] FROM HENRY VII. TO GEORGE II. 379 session.* Even the despotic influence of his major-generals, and the political annihi- lation of the most considerable body of the gentry, then laboring under the imputation of delinquency for their attachment to the late king, did not enable him to obtain a se- cure majority in the assembly; and he was driven to the audacious measure of exclud- ing above ninety members, duly returned by their constituents, from taking their seats. Their colleagues wanted courage to resist this violation of all privilege ; and after re- ferring them to the council for approbation, resolved to proceed with public business. The excluded members, consisting partly of the Republican, partly of the Presbyte- rian factions, published a remonstrance in a very high strain, but obtained no redress, f * Thurloe writes to Montague (Carte's Letters, ii., 110) that he can not give him the reasons for calling this Parliament, except in cipher. He says in the same place of the committal of Ludlow, Vane, and others, " There was a necessity, not only for peace' sake, to do this, but to let tlie na- tion see those that govern are in good earnest, and intend not to quit the government wholly into the bands of the Parliament, as some would needs make the world believe." — P. 112. His first direct allusion to the projected change is in writing to Henry Cromwell, 9th of Dec, 165e.— Thurl. Papers, v., 194. The influence exerted by his legates, the major-generals, appears in Thurloe, v., 299, et post. But they complained of the elections. — Id., 302, 311, 371. t Whitelock, C50. Pari. Hist, 1486. On a let- ter to the speaker from the members who had been refused admittance at the door of the lobby, Sept. 18, the House ordered the clerk of the Com- monwealth to attend next day with all the indent- ures. The deputy clerk came accordingl}-, with an excuse for his principal, and brought the indent- ures ; but on being asked why the names of cer- tain members were not returned to the House, an- swered, that he had no certificate of approbation for them. The House, on this, sent to inquire of tlie council why these members had not been ap- proved. They returned for answer, that whereas it is ordained by a clause in the Instrument of Government that the persons who shall be elected to serve in Parliament shall be such and no other than such as are persons of known integrity, fear- ing God, and of good conversation ; that the coun- cil, in pursuance of their duty, and according to the trust reposed in them, have examined the said re- turns, and have not refused to approve any who appeared to them to be persons of integiity, fearing God, and of good conversation ; and those who are not approved, his.highness hath given order to some persons to take care that they do not come into the House. Upon this answer, an adjounament was pro- posed, but lost by 115 to 80 ; and it being moved that the persons whohave been returned from the sever- Cromwell, like so many other usurpers, felt his position too precarious, or . ' Designs to his vanity ungratified, without the take the name wliicli mankind have agreed to worship. He had, as evidently appears from the conversations i-ecorded by White- lock, long since aspired to this titular, as well as to the real pre-eminence ; and the banished king's friends had contemplated the probabihty of his obtaining it with dis- may.* Affectionate toward his family, he wished to assure the stability of his son's succession, and perhaps to please the vanity of his daughters. It was, indeed, a very reasonable object with one who had already advanced so far. His assumption of the crown was desirable to many different class- es ; to the lawyers, who, besides their re- gard for the established Constitution, knew that an ancient statute would protect those who served a de facto king in case of a res- toration of the exiled family ; to the nobility, who perceived that their legislative right must immediately revive ; to the clergy, who judged the regular ministiy more like- ly to be secure under a monarchy ; to the people, who hoped for any settlement that would put an end to perpetual changes ; to all of every rank and profession who dread- ed the continuance of military despotism, and demanded only the just rights and priv- ileges of their country. A king of England could succeed only to a boiuided preroga- tive, and must govern by the known laws ; a protector, as the nation had well felt, with less nominal authority, had all the sword could confer; and, though there might be little chance that Oliver would abate one jot of a despotism for which not the times of the Tudors could furnish a precedent, yet his life was far worn, and under a success- or it was to be expected that future Par- liaments might assert again all those liber- ties for which they had contended against Charles, f A few of the Royalists miglit al counties, cities, and boroughs to serve in this Par- liament, and have not been approved, be refeired to the council for approbation, and that the House do proceed with the great affairs of the nation ; the ques- tion was carried by 125 to 29. — Journals, Sept. 23. t Clar. State Papers, iii., 201, &c. * The whole conference that took place at White- hall, between Cromwell and the committee of Par- liament on this subject, was publislied by authority, and may be read in the Somers Tracts, vi., 349. It is very interesting. The lawyers did not hesitate 380 COXSTITUTIOXAL HISTORY OF EXGLANTD [Chap. X. perhaps fancy that the restoration of the | royal title would lead to that of the lawful heir : but a gi'eater number were content to abandon a nearly desperate cause, if they could but see the more valuable object of their concern, the form itself of polity, re- established.* There can be, as it appears to me, little room for doubt that, if Crom- ' well had overcome the resistance of his gen- [ erals, lie would have transmitted the seep- \ ter to his descendants with the acquiescence j and tacit approbation of the kingdom. Had we been living ever since under the rule of his dynasty, what tone would our historians i have taken as to his character and that of the house of Stuart ? The scheme, however, of founding a new royal line failed of accomplishment, as is to snpport the proposirion, on the ground of the more definite and legal character of a king's au- j thority. The king's prerogative," says Glyn, " is | known by law ; he (King Charles^p did expatiate | be5-ond the duty : that's the evil of the man ; but ' in Westminster Hall the king's prerogative was under the courts of justice, and is bounded as well 1 as any acre of land, or any thing a man hath, as much as any controversy between paity and partj" ; , and therefore the office being lawful in its nature, [ known to the nation, certain in itself, and confined and regulated by the law, and the other office not ' being so, that was a great ground of the reason j ■why the Parliament did so much insist upon this i office and title, not as circumstantial, but as essen- tial."—P. 359. See, also, what Lenthall says, p. 356, against the indefiuiteness of the Protector's authority. Those passages were evidently implied censures on the late com-se of govenimeut. Cromwell's in- distinct and evasive style in his share of this de- bate betrajs the secret inclinations of his heart. He kept his ultimate intentions, however, very se- cret ; for Thurloe professes his ignorance of them, even in writing to Henry Cromwell, vol. vi., p. 219, ' et post. This correspondence shows that the pru- I dent secretary was uneasy at the posture of aflfairs, and the manifest dissatisfaction of Fleetwood and Desborongh, which had a dangerous influence on others less bound to the present familj- ; yet he had j set his heart on this mode of settlement, and was | much disappointed at his master's ultimate refusal. * Clarendon's Hist., vii., 194. It appears by Clarendon's private letters that he had expected to see Cromwell assume the title of king from the year 1654.— Vol. iii., p. 201, 223, 224. If we may trust what is here called an intercepted letter, p. 328, Mazariu had told Cromwell that France would enter into a strict league with him, if he could set- tle himself in the throne, and make it hereditarj- ; to which he answered, that he designed shortly to take the crown, restore the two Houses, and gov- ern by the ancient laws. But this may be apoc- ryphal. well known, through his own can- xh^ project tion, which deterred him fi-om en- countering the decided opposition of his army. Some of his cotemporaries seem to have deemed this abandonment, or, more properly, suspension of so splendid a design, rather derogatory to his finnness.* But few men were better judges than Cromwell of what might be achieved by daring. It is certainly not impossible that, by arresting Lambert, Whalley, and some other gener- als, he might have crushed for the moment any tendency to open resistance ; but the experiment would have been infinitely haz- ardous. He had gone too far in the path of violence to recover the high-road of law by any short cut. King or protector, he miist have intimidated every Parliament, or sunk under its encroachments. A new- modeled army might have served his turn ; but there would have been great difficulties in its formation. It had, from the beginning, been the misfortune of his government that it rested on a basis too narrow for its safety. For two yeai-s he had reigned with no sup- port but the Independent sectaries and the army. The army or its commanders be- coming odious to the people, he had sacri- ficed them to the hope of popularity, by abolishing the civil prefectures of the major- generals, f and permitting a bill for again decimating the Royalists to be thrown out of the House. t Theu* disgust and resent- * Clar., vii., 203. t Ludlow, p. 581. The major-generals, or at least many of them, joined the opposition to Crom- well's royalty. — Id., p. 586. Clar. State Papers, 332. t This appeai-s from the following passage in a curious letter of Mr. "Vincent Gookin to Henry Cromwell, 2Tth Jan., 1657. " To-mon-ow the bill for decimating the Cavaliers comes again into de- bate. It is debated with much heat hy the major- generals, and as hotly, almost, by the anti-decima- tors. I believe the bill will be thrown out of the House. In my opinion, those that speak against the bill have much to say in point of moral justice and prudence ; but that which makes me fear the passing of the bill is, that thereby his highness' government will be more founded in force, and more removed from that natural foimdation which the people in Parliament are desirous to give him ; supposing that he will become more theirs than now he is, and will in time find the safety and peace of the nation to be as well maintained by the laws of the land as by the sword. And truly, sir, if any others have pretensions to succeed him by their interest in the army, the more of force up- holds his highness living, the greater when he is dead will be the hopes and advantages for such a Commonwealth.] FEOM HENRY VII. TO GEORGE II. 381 mont, excited by an artful intriguer, Lam- bert, who aspired at least to the succession of the Protectorship, found scope in the new project of nionarcliy, naturally obnox- ious to the prejudices of true fanatics, and who still fancied themselves to have con- tended for a republican liberty. Wo find that even Fleetwood, allied by marriage to Cromwell, and not involved in the discon- tent of the major-generals, in all the sincer- ity of his clouded understanding revolted from the invidious title, and would have retired from service had it been assumed. There seems, therefore, reason to think that Cromwell's refusal of the crown was an inevitable mortification. But he undoubt- edly did not lose sight of the object for the short remainder of his life.* one to effect his aim, who desires to succeed him. Lambert is much for decimations." — Thurloe, vi., 20. He writes again, " I am coutideiit it is judged by some that the interest of the godly can not be presei-ved but by the dis-sohitiou of tliis, if not all Parliaments, and their endeavors in it have been plainly discovered to the party most concerned to know them ; which will, I believe, suddenly occa- sion a reducing of the governraoiit to kingsliip, to which his highness is not averse. I'ierpoint and St. John have been often, but secretly, at Wliite- hall, I know, to advise thereof." — P. 37. Thurloe again to the same Henry Cromwell, on February 3, that the decimation bill was thrown out by a majority of forty : " Some gentlemen do think themselves much trampled upon by this vote, and are extremely sensible thereof; and the trath is, it bath wrought such a heat in the House, that I fear little will be done for the future." — Id., p. 3S. No such bill appears, eo nomine, in the Journals. But a bill for regulating the militia forces was thrown out Jan. 29, by 124 to 88, Col. Cromwell (Oliver's cousin) being a teller for the majority. Probably there was some clause in this renewing the decimation of the Royalists. * Whitelock, who was consulted by Cromwell on this business, and took an active part as one of the committee of conference appointed by the House of Commons, intimates that the project was not really laid aside. " He was satisfied in his private judgment that it was fit fur him to take upon him the title of king, and matters were ])rcpared in or- der thereunto ; but afterward, by solicitation of the Commonwealth's men, and fearing a mutiny and de- fection of a great part of the army, in case he should assume that title and office, his mind changed, and many of the officers of the army gave out gi-eat tlireatcnings against him in case he should do it ; he therefore thought it best to attend some better season and opportunity in this business, and refused it at this time with great seeming earnestness." — P. 656. The chief advisors with Cromwell on this occasion, besides Whitelock, were Lord Brog- hill, Pierpomt, Thurloe, and Sir Charles Wolsele}-. The fundamental charter of the Englisli Commonwealth under the pro- His iiuthon- tectorship of Cromwell had been t^ctoi.'j™' the Instrument of Covei-nment, augmented, drawn up by the council of officers in De- cember, 1G53, and approved with modifica- tions by the Parliament of the next year. It was now changed to the " Petition and Advice," tendered to him by the present Parliament in May, 1657, which made very essential innovations in the frame of polity. Though he bore, as formerly, the name of Lord Protector, we may say, speaking ac- cording to theoretical classification, and without reference to his actual exercise of power, which was nearly the same, that the English government in the first period should be ranged in the order of republics, though with a chief magistrate at its head ; but that from 1G57 it became substantially a monarchy, and ought to be placed in that class, notwithstanding the dilference in the style of its sovereign. The Petition and Advice had been compiled with a constant respect to that article, which conferred the roj'al dignity on the Protector;* and when this was withdrawn at his request, the rest of the Instrument was preserved with all its implied attributions of sovereignty. The style is that of subjects addressing a mon- arch ; the powers it bestows, the privileges it claims, are sup])osed, according to the ex- Many passages in Thurloo, vol. vii., show that Cromwell preserved to the last his views on roy- alty. * Whitelock, 657. It had been agreed, in dis- cussing the Petition and Advice in Parliament, to postpone the first article requesting the Protector to assume the title of king, till the rest of the char- ier (to use a modern, but not inap]jlicable word) had been gone through. One of the subsequent articles, fixing the revenue at £1,300,000 per an- num, provides that no part thereof should be raised by a land tax, "and this not to he altered without the consent of the three estates in Parliament." A division took place, in consequence, no doubt, of this insidious expression, which was preserved by 97 to 50.— Journals, 13th March. The first article was can-ied, after mudi debate, on Marc^i 24, by 323 to 62. It stood thus: "Resolved, That your highness will be pleased to assume the name, style, dignity, and office of King of England, Scotland, and Ireland, and the respective dominions and ter- ritories thereunto belonging ; and to exercise the same according to the laws of these nations." On Cromwell's first demurring to the proposal, it was resolved to adhere to the Petition and Advice by the small majority of 78 to 65. This was, perhaps, a sufficient warning that he should not proceed. 382 CONSTITUTIONAL HISTORY OF ENGLAND [Chap. i. pressions employed, the one to be already j his own, the other to emanate from his i will. The necessity of his consent to laws, though nowhere mentioned, seems to have been taken for granted. An unlimited pow- er of appointing a successor, unknown even to constitutional kingdoms, was vested in the Protector. He was inaugurated with solemnities applicable to monarchs ; and what of itself is a sufficient test of the mo- nai'chical and republican species of govern- ment, an oath of allegiance was taken by every member of Parliament to the Pro- tector singly, without any mention of the Commonwealth.* It is surely, therefore, no paradox to assert that Oliver Cromwell was de facto sovereign of England dm-ing the intei-val from June, 1G57, to his death in September, 1658. The zealous opponents of royalty could not be insensible that they had seen it re- vive in every thing except a title, which was not likely to remain long behind. f It was too late, however, to oppose the first magistrate's personal authority. But there remained one important point of contention, which the new Constitution had not fully settled. It was therein provided that the Parliament should consist of two Houses ; namely, the Commons, and what they al- ways termed, with an awkward generality, the Other House. This was to consist of not more than seventy, nor less than forty persons, to be nominated by the Protector, and, as it stood at first, to be approved by the Commons. But before the close of the session, the court party prevailed so far as to procure the repeal of this last condition ;% and Cromwell accordingly issued wiits of He aims at summons to persous of various new Hou* e pfn'tios, a few of the ancient peers, of Lords, a few of his adversaries, whom he * Journals, 21st of June. This oath, which ef- fectually declared the Parliament to be the Pro- tector's subjects, was only canned by 63 to 55. Lambert refused it, and was dismissed the army in consequence, with a pension of .£2000 per an- num, instead of his pay, £10 a day. So well did they cater for themselves. — Ludlow, 593. Brode- rick wrote to Hyde, June 30, 1657, that there was a general tranquillity in England, all parties seem- ing satisfied with the compromise; Fleetwood and Desborough more absolutely Cromwell's friends than before, and Lambert very silent. — Clar. State Papers, 349. t Thurloe, vi., 310. t Compare Journals, lltli of March with 2-lth of June. hoped to gain over, or at least to exclude from the Commons, and, of course, a ma- jority of his steady adherents. To all these he gave the title of lords, and in the next session their assembly denominated it- self the Lords' House.* This measure en- countered considerable difficulty. The Re- publican pai-ty, almost as much attached to that vote which had declared the House of Lords useless, as to that w^hich had abolish- ed the monarchy, and well aware of the in- timate connection between the two, resist- ed the assumption of this aristocratic title, instead of that of the Other House, which the Petition and Advice had sanctioned. The real peers feared to compromise their hereditaiy right by sitting in an assembly where the tenure was only duiing life, and disdained some of their colleagues, such as Pride and Hewson, lowborn and inso- lent men, whom Cromwell had rather in- judiciously bribed with this new nobility; though, with these exceptions, his House of Lords was respectably composed. Hence, in the short session of January, 1658, wherein the late excluded members were permitted to take their seats, so many dif- ficulties were made about acknowledging the Lords' House by that denomination, that the Protector hastily and angrily dis- solved the Parliament.! It is a singulai- part of Cromwell's sys- tem of policy, that he would neither reign with Parliaments nor without them ; impa- tient of an opposition which he was sure to experience, he still never seems to have meditated the attainment of a naked and avowed despotism. Tliis was probably due to his observation of the ruinous conse- quences that Charles had brought on him- self by that course, and his knowledge of the temper of the English, never content without the exterior forms of iibertj", as * Whitelock, 665. They were to have a judi- cial power, much like that of the real House of Lords. — Journals, March. t Whitelock. Pari Hist. The former says this was done against his advice. These debates about the Other House are to be traced in the Journals, and are mentioned by Thurloe, vi., 107, &c. ; and Ludlow, 597. Not one of the true peers, except Lord Eure, took his seat in this House ; and Hazle- rig, who had been nominated merely to weaken his influence, chose to retain his place in the Com- mons. The list of these pretended lords in Thur- loe, vi., 668, is not quite the same as that ia White- lock. Commonwealth.] FROM HENRY VII. TO GEORGE II. 383 well as to the suggestions of counselors who were not destitute of concern for the laws. He had also his great design yet to accom- plish, which could only be safely done under the sanction of a Parliament. A veiy short time, accordingly, before his death, we find that he had not only resolved to meet once more the representatives of the nation, but was tampering with several of the leading officers to obtain their consent to an hered- itaiy succession. The majority, however, of a council of nine, to whom he referred this suggestion, would only consent that the Protector for the time being should have the power of nominating his successor ; a vain attempt to escape from that regal form of government which they had been taught to abhor.* But a sudden illness, of a na- ture seldom fatal except to a constitution al- ready shattered by fatigue and anxiety, ren- dered abortive all these projects of Crom- well's ambition. He left a fame behind him proportioned „. , , to his extraordinary fortunes and His death, *' andcharac- to the great qualities which sus- tained them ; still more, perhaps, the admiration of strangers than of his coun- try, because that sentiment was less alloyed by hatred, which seeks to extenuate the glory that iiTitates it. The nation itself for- gave much to one who had brought back the renown of her ancient stoiy, the traditions * This jnnto of nine debated how they might be secure agaiii.st the Cavaliers. One scheme was an oath of abjuration ; but this it was tliought they would all take : another was to lay a heavy tax on them : " a moiety of their estates was spoken of ; but this, I suppose, will not down with all the nine, and least of all will it be swallowed by the Par- liament, who will not be persuaded to punish both nocent and innocent without distinction," 22d of June. — Thurloe, vol. vii., p. 198. And again, p. 269: "I believe we are out of danger of oar junto, and I think, also, of ever having such another. As I take it, the report was made to his highness upon Thursday. After much consideration, the major part voted that succession in the government was indifferent whether it were by election or hered- itary, but afterward some would needs add that it was desirable to have it continued elective ; that is, that the chief magistrate should always name liis successor; and that of hereditary avoided; and I fear the word ' desirable' will be made ' neces- sary,' if ever it come upon the ti-ial. His highness finding he caii have no advice from those he most expected it from, saith he will take his own reso- lutions, and that he can no longer satisfy himself to sit still, and make himself guilty of the loss of all the honest party and of the nation itself." of Elizabeth's age, after the ignominious reigns of her successors. This contrast with James and Charles in their foreign policy gave additional lusti'e to the era of the Protectorate. There could not but be a sense of national pride to see an English- man, but yesterday raised above the many, without one drop of blood in his veins which the princes of the earth could challenge as their own, receive the homage of those who acknowledged no right to power, and hardly any title to respect, except that of prescription. The sluggish pride of the court of Spain, the mean-spirited cunning of Mazarin, the in-egular imagination of Christina, sought with emulous ardor the friendship of our usurper.* He had the advantage of reaping the harvest which he had not sown, by an honorable treaty with Holland, the fruit of victories achieved imder the Parliament. But he still em- ployed the gi-eat energies of Blake in the service for which he was so eminently fit- ted ; and it is just to say that the maritime glory of England may first be ti-aced from the era of the Commonwealth in a track of continuous light. The oppressed Protes- tants in Catholic kingdoms, disgusted at the lukewarmness and half-apostasy of the Stu- arts, looked up to him as their patron and mediator.! Courted by the two rival mon- * Hairis, p. 348, has collected some curious in- stances of the servility of crowned heads to Crom- well. t See Clarendon, vii., 997. He saved Nismefl from military execution on account of a riot, wherein the Huguenots seem to have been much to blame. In the ti-eaty between England and France, 1 6.54, the French, in agreeing to the secret article about the exclusion of the Royalists, en- deavored to make it reciprocal, that the commis- sioners of rebels in France should not be admitted in England. This did not seem very outrageous; but Cromwell objected that the French Protestants would be thus excluded from imploring the assist- ance of England if they were persecuted ; protest- ing, however, that he was very far from having any thought to draw them from their obedience, as had been imputed to him, and that he would arm against them if they should offer frivolously and without a cause to disturb the peace of France. — Thurloe, iii., 6. In fact, the French Protestants were in the habit of writing to Thurloe, as this collection testifies, whenever they thought them- selves injured, which happened frequently enough. Cromwell's noble zeal in behalf of the Vaudois is well known.— See this volume of Thurloe, p. 412, &c. Mazarin and the Catholic powers in general endeavored to lie down that massacre ; but the 384 COXSTITUTIOXAL HISTORY OF ENGLAND [Chap. X. archies of Europe, he seemed to threaten both with his hostility ; and when he de- clared against Spain, and attacked her West India possessions, with little pretense cer- tainly of justice, but not by any means, as I conceive, with the impolicy sometimes charged against him, so auspicious was his 6tar, that the very failure and disappoint- ment of that expedition obtained a more ad- vantageous possession for England than all the triumphs of her former kings. Notwithstanding this external splendor, which has deceived some of our own, and most foreign writers, it is evident that the submission of the people to Cromwell was far from peaceable or voluntaiy. His strong and skillful grasj) kept down a nation of en- emies that must naturally, to judge from their numbers and inveteracy, have over- whelmed him. It required a dextrous management to play with the army, and without the army he could not have existed as sovereign for a day. Yet it seems im- probable that, had Cromwell lived, any in- surrection or cousphacy, setting aside assas- sination, could have overthrown a possession so fenced by systematic vigilance, by expe- rienced caution, by the respect and terror that belonged to his name. The Royalist and Republican intrigues had gone on for several years without intermission ; but ev- ery part of their designs was open to him ; and it appears that there was not courage, or, rather, temerity sufficient to make any open demonsti"ation of so prevalent a disaf- fection.* The most superficial observers can not have overlooked the general resemblances in the fortunes and character of Cromwell, and of him who, more recently and upon an ampler theatre, has stnxck nations with wonder and awe. But the parallel may be traced more closely than, perhaps, has hith- erto been remarked. Both raised to power by the only merit which a revolution leaves tmcontroverted and untarnished, that of mU- itaiy achievements, in that reflux of public sentiment, when the fervid enthusiasm of democracy gives place to disgust at its ex- cesses and a desire of firm government. The means of gi-eatness the same to both ; the extinction of a representative assembly, usurper had too mach Protestant spirit to believe them.— Id., 536. * Ludlovr, 607. Tharloe, i. and ii., passim. ouce national, but already mutilated by vio- lence, and sunk by its submission to that il- legal force into general contempt. In mili- tary science or the renown of their exploits, we can not certainly rank Cromwell by the side of him for whose genius and ambition aU Europe seemed tlie appointed quaiTy ; but it may be said that the former's exploits were as much above the level of his co- temporaries, and more the fruits of an orig- inal uneducated capacity. In civil govern- ment, there can be no adequate parallel be- tween one who had sucked only the dregs of a besotted fanaticism, and one to whom the stores of reason and philosophy were open. But it must here be added that ' Cromwell, fcir unlike his antitype, never ! showed any signs of a legislative mind, or I any desire to fix his renown on that noblest I basis, the amelioration of social institutions. I Both were eminent masters of human na- ture, and played with inferior capacities in all the security of powerful minds. Though both, coming at the conclusion of a struggle for liberty, trampled upon her claims, and sometimes spoke disdainfully of her name, each knew how to associate the interests of those who had contended for her with his own ascendency, and made himself the J representative of a victorious revolution. Those who had too much philosophy or ' zeal for freedom to give way to popular ad- ' miration for these illusti'ious usurper, were yet amused with the adulation that lawful princes showered on them, more gratui- tously in one instance, with servile terror in the other. Both, too, repaid in some measm-e this homage of the pretended great by turning their ambition toward those hon- ors and titles which they knew to be so lit- tle connected with high desert. A fallen race of monarchs, which had made way for the gi-eatuess of each, cherished hopes of restoration by theu- power till each, by an in- expiable act of blood, manifested his determ- ination to make no compromise with that line. Both possessed a certain coarse good- nature and affability that covered the want of conscience, honor, and hi) inanity ; quick in passion, but not vindictive, and averse to unnecessaiy crimes. Their fortunes in the conclusion of life were indeed very differ- ent : one forfeited the affections of his peo- ple, which the other, in the character at least of their master, had never possessed ; Commonwealth.] FROM HENRY VII. TO GEORGE II. 385 one furnished a moral to Eui-ope by the continuance of his success, the other by the pi'odigiousness of his fall. A fresh resem- blance arose afterward, when the restora- tion of those royal families, whom their as- cendant had kept under, revived ancient an- imosities, and excited new ones ; those who from love of democratical liberty had borne the most deadly hati'ed to the apostates who had betrayed it, recovering some af- fection to their memory out of aversion to a common enemy. Our English Repub- licans have, with some exceptions, display- ed a sympathy for the name of Cromwell ; and I need not observe how remarkably this holds good in the case of his mighty parallel.* The death of a great man, even in the , , , . most regular course of affairs, Richard his ^ ' son succeeds seems alwaj^s to create a sort of pause in the movement of socie- ty; it is always a problem to be solved only * Mrs. Macaulay, who had uothing of compro- mise or conciliatioD in her temper, and breathed the entire spirit of Vane and Ludlow, makes some vigorous and just animadversions on the favor shown to Cromwell by some professors of a regard for liberty. The dissenting writers, such as Neal, and in some measure Hams, were particularly open to this reproach. He long continued (perhaps the present tense is more appropriate) to be rever- ed by the Independents. One who well knew the manners he paints, has described the secret idola- try of that sect to their hero-saint. — See Crabbe's Tale of the Frank Courtship. Slingsby Bethel, an exception, perhaps, to the general politics of this sect, published in 1667 a tract, entitled The World's Mistake in Oliver Cromwell, with the purpose of decrying his policy and depreciating his genius. — Harleian Miscellany, i., 280. But he who goes about to prove the world mistaken in its estimate of a public character has always a difficult cause to maintain. Betliel, like Mrs. Macaulay and others, labors to set up the Rump Parliament against the soldier who dispers- ed them ; and asserts that Cromwell, having found £500,000 in ready money, with the value of £700,000 in stores, and the ai-my in advance of their pay (subject, however, to a debt of near JE500,000), the customs and excise bringing in nearly a million annually, left a debt which, in Richard's Parliament, was given in at £ 1,900,000, though he believes this to have been purposely exaggerated in order to procure supplies. I can not say how far these sums are correct; but it is to be kept in mind, that one great resource of the Parliament, confiscation, sequestration, composi- tion, could not be repeated forever. Neither of these governments, it will be found on inquirj', were economical, especially in respect to the emol- uments of those coucenied in them. 6b by experiment, whetlier the mechanism of government may not be disordered by the shock, or have been deprived of some of its moving powers. But what change could be so great as that from Oliver Cromwell to his son ! from one beneath the teiTor of whose name a nation had cowered and for- eign princes grown pale, one trained in twenty eventful years of revolution, the first of his age in the field or in council, to a young man fresh from a country life, uned- ucated, unused to business, as little a states- man as a soldier, and endowed by nature Avith capacities by no means above the com- mon. It seems to have been a mistake in Oliver that with the projects he had long formed in his eldest son's favor, he should have taken so little pains to fashion his mind and manners for the exercise of sovereign power, while he had placed the second in a very eminent and arduous station ; or that, if he despaired of Richard's capacity, he should have trusted him to encounter those perils of disaffection and conspiracy which it had required all his own vigilance to avert. But, whatever might be his plans, the sudden illness which carried him from the world left no time for completing them. The Petition and Advice had simply em- powered him to appoint a successor, with- out prescribing the mode. It appeared con- sonant to law and reason that so important a trust should be executed in a notorious manner, and by a written instrument ; or, if a verbal nomination might seem sufficient, it was at least to be expected that this should be authenticated by solemn and indisputable testimony. No proof, however, was ever given of Richard's appointment by his fa- ther except a I'ecital in the proclamation of the privy council, which, whether well founded or otherwise, did not cany convic- tion to the minds of the people ; and this, even if we call it but an informality, aggi'a- vated the numerous legal and natural defi- ciencies of his title to the government.* " Whitelock, 674. Ludlow, 611, 624, Lord Fau- conberg writes in cipher to Henry Cromwell, on August 30, that " Thurloe has seemed resolved to press him in his intervals to such a nomination (of a successor) ; but whether oat of apprehensions to displease him if recovering, or others hereafter, if it should not succeed, he has not yet done it, nor do I believe will." Thurloe, however, announces on Sept. 4 that " his highness was pleased before his death to declare my Lord Richard successor. 386 CONSTITUTIONAL HISTOEY OF ENGLAND [Chap. X This very difference, however, in the Is supported Personal qualifications of the fa- bjsoniepru- ther and the son, procured the deatmen, jattgj. gome friends whom the former had never been able to gain. Many of the Presbyterian party began to see the finger of God, as they called it, in his peace- able accession, and to think they owed sub- jection to one who came in neither by reg- icide, nor hypocrisy, nor violence.* Some cool-headed and sincere friends of liberty entertained similar opinions. Pierpoint, one of the wisest men in England, who had stood aloof from the Protector's government till the scheme of restoring monarchy came into discussion, had great hopes, as a writer of high authority informs us, of settling the nation in the enjoyment of its liberties un- der the young man ; who was " so flexible," says that writer, " to good counsels, that there was nothing desirable in a prince which might not have been hoped in him but a great spirit and a just title ; the first of which sometimes doth more hurt than good in a sovereign ; the latter would have been supplied by the people's deserved ap- probation." Pierpoint believed that the restoration of the ancient family could not be efl^ected without the ruin of the people's liberty, and of all who had been its cham- pions ; so that no Royalist, he thought, who had any regard to his country, would at- tempt it ; while this establishment of mon- archy in Richard's person might reconcile that party, and compose all differences among men of weight and of zeal for the public good.f He acted, accordingly, on those principles ; and became, as well as his friend St. John, who had been discounte- nanced by Oliver, a steady supporter of the young Protector's administi-ation. These two, with Thurloe, Whitelock, Lord Brog- hill, and a veiy few more, formed a small He did it on Monday; and the Lord hath so order- ed it, that the council and army hath received him ■with all manner of affection. He is this day pro- claimed, and hitherto there seems great face of peace ; the Lord continoe it." — Thurloe State Papers, vii., 365, 372. Lord Faucouberg afterward confirms the fact of Richard's nomination. — P. 375 ; and see p. 415. * "Many sober men, that caUed his father no better than a traitorous hj'pocrite, did begin to tliink that they owed him [R. C] subjection," &c. —Baxter, 100. t Hutchinson, 343. She does not name Pierpoint, bat I have little doubt that he is meant. phalanx of experienced counselors around his unstable throne; and I must confess that their course of policy in sustaining Richard's government appears to me the most judi- cious that, in the actual circumstances, could have been adopted. Pregnant as the res- toration of the exiled family was with in- calculable dangers, the English monarchy would have revived with less lustre in the eyes of the vulgar, but with more security for peace and freedom, in the line of Crom- well. Time would have worn away the stains of ignoble birth and criminal usurpa- tion ; and the young man, whose misfor- tune has subjected him to rather an exag- gerated charge of gross incapacity, would probably have reigned as well as most of those who are bom in the purple.* But this termination was defeated by the combination of some who knew , . , but opposeu not what they wished, and of some by a coaii- who wished what they could nev- er attain. The general officers, who had been well content to make Cromwell the first of themselves, or greater than them- selves by their own creation, had never for- given his manifest design to reign over them as one of a superior order, and owing noth- ing to their pleasure. They had begun to cabal during liis last illness. Though they did not oppose Richard's succession, they continued to hold meetings, not quite pub- lic, but exciting intense alarm in his council. As if disdaining the command of a clownish boy, they proposed that the station of Lord- general should be separated from that of Protector, with the power over all commis- sions in the army, and conferred on Fleet- wood ; who, though his brother-in-law, was a certain instrument in their hands. The vain, ambitious Lambert, aispiring, on the credit of some militaiy reputation, to wield the scepter of Cromwell, influenced this junto ; while the Commonwealth's party, some of whom were, or had been, in the army, drew over several of these ignorant and fanatical soldiers. Thurloe describes the posture of affairs in September and October, while all Europe was admiring the peaceable transmission of Oliver's pow- er, as most alarming ; and it may almost be * Richard's conduct is more than once commend ed in the correspondence of Thurloe, p. 491, 497 and, in fact, he did nothing amiss daring his short administration. Commonwealth.] FROM HENRY VII. TO GEORGE II. 387 said that Richard had abeady fallen when he was proclainaed the Lord Protector of England.* It was necessary to summon a Paaliament Calls a Par- On the Usual score of obtaining liament. money. Lord Broghill had ad- vised this measure immediately on Olivers death, f and perhaps the delay might be rather prejudicial to the new establishment. But some of the council feared a Pai-lia- ment almost as nmch as they did the army. They called one, however, to meet on Jan- uaiy 27, 1659, issuing writs in the ordinary manner to all boroughs which had been ac- customed to send members, and consequent- ly abandoning the reformed model of Crom- well. This Ludlow attributes to their ex- pectation of greater influence among the small boroughs ; but it may possibly be as- cribed still more to a desire of retin-ning by little and little to the ancient Constitution, by eradicating the revolutionaiy innovations. The new Parliament consisted of courtiers, as the Cromwell party were always denom- inated, of Presbyterians, among whom some of Cavalier principles crept in, and of Re- publicans ; the two latter nearly balancing, with their united weight, the ministerial majority. t They began with an oath of * Thurloe, vii., 320, et post, passim, in letters both from himself and Lord Fauconberg. Thu.s, immediately on Richard's accession, tlie former writes to Henrj- Cromwell, " It has pleased God hitherto to give his highness your brother a very easy and peaceable entrance upon his government. There is not a dog that wags his tongue, so great a calm we are in. . . But I must needs acquaint your excellency that there are some secret mur- murings in the army, as if his highness were not general of the army as his father was," &c. — P. 374. Here was the secret: the oiBcei-s did not like to fall back under the civil power, by obeying one who was not a soldier. This soon displayed itself openly ; and Lord Fauconberg thought the game was over as early as Sept. 28. — P. 413. It is to be observed that Fauconberg was seci'etly a Royalist, and might hope to bring over his brother- in-law. t Thurloe, vii., 573. t Lord Fauconberg says, "The Commonwealth's men in the Parliament were very numerous, and beyond measure bold, but more than doubly over- balanced by the sober party ; so that, though this make their results slow, we see no great cause as yet to fear." — P. 612. And Dr. Barwick, a corre- spondent of Lord Clarendon, tells him the Repub- licans were the minority, but all speakers, zealous and diligent : it was likely to end in a titular Pro- tector without militia or negative voice. — P. 615. According to a letter from Allen Broderick to Hyde (Clar. St. Pap., iii., 443), there were 47 Re- allegiance to the Protector, as presented by the late Pai-liament, which, as usual ia such cases, his enemies generally took with- out scruple.* But upon a bill being offered for the recognition of Richard as the un- doubted Lord Protector and chief magis- trate of the Commonwealth, they made a stand against the word recognize, which was carried with difficulty, and caused him the mortification of throwing out the epithet undoubted. f They subsequently discuss- ed his negative voice in passing bills, which had been purposely slurred over in the Pe- tition and Advice ; but now every tiling was disputed. The thorny question as to the powers and privileges of the Other House came next into debate. It was carried by 177 to 113, to ti'ansact business with them. To this resolution an explanation was add- ed, that it was not thereby intended to ex- clude such peers as had been faithful to the Parliament from their privilege of being duly summoned to be members of that House. The court supporting this not impolitic, but logically absurd proviso, which confounded the ancient and modern systems of govei-n- ment, carried it by the small majority of 195 to 188.$ They were stronger in re- jecting an important motion, to make the approbation of the Commons a preliminaiy to their ti'ansacting business with the per- sons now sitting in the Other House as a House of Parliament, by 183 voices to 146; but the opposition succeeded in inserting publicans, from 100 to 140 neuters or moderates (including many Royalists), and 170 court lawyers, or officers. * Ludlow tells us that he contrived to sit in the House without taking the oath, and that some others did the same, p. 619. t Whitelock. Pari. Hist., 1530, 1541. X The numbers are differently, but, I suppose, erroneously stated in Thurloe, vii., 640. It is said, in a pamphlet of the time, that this clause was in- troduced to please the Cavaliers, who acted with the court. — Somers Tracts, vi., 482. Ludlow seems also to think that these parties were united in this Parliament, p. 629 ; but this seems not very prob- able, and is contrary to some things we know. Clarendon had advised that the Royalists should try to get into Pai'liament, and there to oppose all raising of money, and every thing else that might tend to settle the government. — Clar. State Papers, 411. This, of course, was their true game. It is said that Richard pressing the Earl of Northumberland to sit in the Other House, he de- clined, urging that when the government was such as his predecessors had sen'ed under, he would serve him with his life and fortune. — Id., 433. 388 CONSTITUTIONAL HISTORY OF ENGLAND [Chap. X. the words "during the present Parliament," which left the matter still unsettled.* The sitting of the Scots and Irish members was also unsuccessfully opposed. Upon the whole, the court party, notwithstanding this coalition of very heterogeneous interests against them, were sufficiently powerful to disappoint the hopes which the Royalist in- ti'iguers had entertained. A strong body of lawyers, led by Maynard, adhered to the government, which was supported, also, on some occasions, by a part of the Presbyte- rian interest, or, as then called, the moder- ate party ; and Richard would probably The army concluded the session with no overthrow loss of power, if either he or his Parliament could have withstood the more formidable cabal of Wallingford House. This knot of officers, Fleetwood, Desborough, Berry, Sydenham, being the names most known among them, formed a coalition with the Republican faction, who despaired of any success in Parliament. The dissolution of that assembly was the main article of this league. Alariiied at the notorious caballing of the officers, the Com- mons voted that, during the sitting of the Parliament, there should be no general coun- cil, or meeting of the officers of the army, without leave of the Protector and of both Houses. f Such a vote could only acceler- * Pari. Hist. Journals, 27th of Jan. ; 14tli and 18th of Feb. ; 1st, 8th, 21st, 23d, and 28th of March. The names of the tellers in these divisions show the connections of leading individuals : we find in- differently Presbj-terian and Republican names for the miuoritj', as Fairfax, Lambert, Nevil, Hazlerig-, Townshend, Booth. t There seems reason to believe that Richard would have met with more support both in the House and among the nation, if he had not been oppressed by the odium of some of his father's counselors. A general indignation was felt at those who had condemned men to death in illegal tribu- nals, whom the Republicans and Cavaliers were impatient to bring to justice. He was forced, also, to employ and to screen from vengeance his wise and experienced secretary Thurloe, master of all the secret springs that bad moved his father's gov- ernment, but obnoxious from the share he had taken in illegal and arbiti-ary measures. Petitions were presented to the House from several who had been committed to the Tower upon short written orders, without any formal waiTant, or expressed cause of commitment. In the case of one of these, Mr. Portman, the House resolved that his appre- hension, imprisonment, and detention in the Tower was illegal and unjust. — Journals, 26th of Feb. A still more flagi-ant tjTauny was that frequently practiced by Cromwell, of sending persons disaf- ate their own downfall. Three days after- ward, the junto of "Wallingford House in- sisted with Richard that he should dissolve Parliament ; to which, according to the ad- vice of most of his council, and perhaps by an overruling necessity, he gave his con- sent.* This was immediately followed by fected to him as slaves to the West Indies. One Mr. Thomas petitioned the House of Conmions, com- plaining that he had been thus sold as a slave. A member of the court side justified it on the score of his being a Malignant. Major-general Browne, a secret Royalist, replied that he was nevertheless an Englishman and free bom. Thnrloe had the pre- sumption to say that he had not thought to ]ive to see the day when such a thing as this, so justly and legally done by lawful authority, should be brought before Parliament. Vane replied that he did not think to have seen the day when free-bom Englishmen should be sold for slaves by snch an arbitrary government. There were, it seems, not less than fifty gentlemen sold for slaves at Barba- does. — Clarendon State Papers, p. 447. The Royal- ists had planned to attack Thurloe for some of these unjustifiable proceedings, which would have great- ly embarrassed the government. — Ibid., 423, 428. They hoped that Richard would be better dis- posed toward the king if his three advisers, St. John, Thurloe, and Pierpoint, all implacable to their cause, could be removed. But they were not strong enough in the House. If Richard, however, had continued in power, he must probably have sacri- ficed Thurloe to public opinion ; and the conscious- ness of this may have led this minister to advise the dissolution of the Parliament, and perhaps to betray his master, from the suspicion of which he is not free. It ought to be remarked what an oatrageous proof of Cromwell's tyranny is exhibited in this note. Many writers glide favorably over his ad- ministration, or content themselves with treating it as a usurpation, which can furnish no precedent, and consequently does not merit particular notice ; but the effect of this generality is, that the world forms an imperfect notion of the degree of arbitrary power which he exerted ; and I believe there are many who take Charles the Fii-st, and even Charles the Second, for greater violators of the laws than the Protector. Neal and Harris are full of this dis- honest bigotrj'. Since this note was first printed, the publication of Burton's Diary has confirmed its truth, which had rashly been called iu question by apassionate and prejudiced reviewer. — See vol. iv., p. 253, &c. * Richard advised with Broghill, Fiennes, Thur- loe, and others of his council, all of whom, except Whitelock, who infoims us of this, were in favor of the dissolution. This caused, he says, much trouble to lionest men; the Cavaliers and Repub licans rejoiced at it ; many of Richard's council were his enemies.— P. 177. The army at first in- tended to raise money by their own authority; but this was deemed impossible, and it was resolved to recall the Lona- Parliament. Lambert andHazle- Commonwealth.] FROM HENRY VII. TO GEORGE II. 389 a declaration of the council of officers, call- ing back the Long Parliament, such as it had been expelled in 1C53, to those seats which had been filled meanwhile by so many ti'ansient successors.* It is not, in general, difficult for an armed force to destroy a government ; bat some- thing else than the sword is required to cre- ate one. The military conspirators were destitute of any leader whom they would acknowledge, or wdio had capacity to go through the civil labors of sovereignty ; Lambert alone excepted, who was lying in wait for another occasion. They might have gone on with Richard, as a pageant of nominal authority ; but their new allies, the Commonwealth's men, insisted upon restoring the Long Parliament. f It seem- ed now the policy, as much as dutj'^, of the officei-s to obey that civil power they had set up ; for to rule ostensibly was, as I have just observed, an impracticable scheme. But the contempt they felt for their pre- tended masters, and even a sort of necessi- ty ai'ising out of the blindness and passion of that little oligarchy, drove them to a step still more ruinous to their cause than that rig accordingly ruet Lenthal, vcho was persuaded to act again as speaker; though, if Ludlow is right, against his will, being now connected with the court, and in the pretended House of Lords. The Parliament now consisted of 91 members. — Pari. Hist, 1547. Hams quotes a manuscript journal of Montague, afterward Earl of Sandwich, wherein it is said that Richard's great error was to dissolve the Parliament, and that he might have overruled the army if he would have employed himself, In- goldsby. Lord Fauconberg, and others, who were suspected to be for the king. — Life of Charles II., 194. He afterward, p. 203, quotes Calamy's Life of Howe for the assertion that Richard stood out against his council, with Thurloe alone, that the Parliament should not be dissolved. This is very unlikely. * This was carried against the previous question by 163 to 87. — Journals, Abr., 111. Some of the Protector's friends were alarmed at so high a vote against the army, which did, in fact, bring the mat- ter to a crisis. — Thurloe, vii., 659, et post. t The army, according to Ludlow, had not made up their minds how to act after the dissolution of the Parliament, and some were inclined to go on with Richard ; but the Republican party, who had coalesced with that faction of officers who took their denomination from Wallingford House, their place of meeting, insisted on the restoration of the old Parliament, though they agi'eed to make some pro- vision for Richard. — Memoirs, p. 635-646. Accord- ingly, it was voted to give him an income of £10,000 per annum. — Journals, July 16. of deposing Richard, the expulsion Expelled once more of that assembly, now "^^'O' worn out and ridiculous in all men's eyes, yet seeming a sort of frail protection against mere anarchy and the terror of the sword. Lambert, the chief actor in this last act of violence, and, indeed, many of the rest, might plead the right of self-defense. The prevailing faction in the Parliament, led by Hazlerig, a bold and headstrong man, per- ceived that, with very inferior pretensions, Lambert was aiming to tread in the steps of Cromwell ; and, remembering their neg- lect of opportunities, as they thought, in permitting the one to overthrow them, fan- cied that they would anticipate the other. Their intemperate votes cashiering Lam- bert, Desborough, and other officers, brought on, as every man of more prudence than Hazlerig must have foreseen, an immediate revolution, that crushed once more their boasted Commonwealth.* They and again revived again a few months after, restored, not by any exertion of the people, who hat- ed alike both parties, in their behalf, but through the disunion of their real masters, the army, and vented the impotent and in- judicious rage of a desperate faction on all who had not gone every length on their side, till scarce any man of eminence was left to muster under the standard of Hazle- rig and his little knot of associates. f I can by no means agree with those who * Journals, Sept. 23, et post. Whitelock, 683. Pari. Hist, 1562. Thurioe, vii., 703, et post. Lud- low's account of this period is the most interesting part of his Memoirs. The chief officers, it appears from his narrative, were soon disgusted with their Republican allies, and " behaved with all imagin- able perverseness and insolence" in the Council of State whenever they came there, which was but seldom, scrupling the oath to be true to the Com- monwealth against Charles Stuart or any other per- son.— P. 657. He censures, however, the violence of Hazlerig, " a man of a disobliging temper, sour and morose of temper, liable to be transported with passion, and in whom liberality seemed to be a vice. Yet to do him justice, I must acknowledge that I am under no manner of doubt concerning the rectitude and sincerity of his intentions.'' — P. 718. Ludlow gave some offense to the hot headed Re- publicans by his half compliance with the army, and much disapproved the proceedings they adopted after their second restoration in December, 1659, against Vane and others.— P. 800. Yet, though nominated on the committee of safety, on the ex- pulsion of the Parliament in October, he never sat on it, as Vane and Whitelock did. t Jouraals, and other authorities above cited. 390 CONSTITUTIONAL HISTORY OF ENGLAND [Chap. X. Impossibility find in the character of the E ng- of establish- jj^jj nation some absolute incom- ing a repub- lic, patibilitj' with a republican con- stitution of government. Under favoring circumstances, it seems to me not at all in- credible that such a polity might have ex- isted for many ages in gi-eat prosperity, and Avithout violent convulsion ; for the English are, as a people, little subject to those bursts of passion which inflame the more imagina- tive multitude of southern climates, and render them both apt for revolutions, and incapable of conducting them ; nor are they, again, of that sluggish and stationary tem- per, which chokes all desire of improve- ment, and even all zeal for freedom and jus- tice, through which some free governments have degenerated into corrupt oligarchies. The most conspicuously successful experi- ment of republican institutions (and those far more democratical than, according to the general theory of politics, could be rec- onciled with perfect ti-anquillity) has taken place in a people of English original; and though much must here be ascribed to the peculiarly fortunate situation of the nation to which I allude, we can hardly avoid giv- ing some weight to the good sense and well- balanced temperament which have come in their inheritance with om- laws and our lan- guage. But the establishment of free com- monwealths depends much rather on tem- porary causes, the influence of persons and particular events, and all those intricacies in the course of Providence which we term accident, than on any general maxims that can become the basis of prior calculation. In the year 1659, it is manifest that no idea could be more chimerical than that of a re- publican settlement in E ngland. The name, never familiar or venerable in English ears, was grown infinitely odious : it was associ- ated with the tyranny of ten years, the self- ish rapacity of the Rump, the hypocritical despotism of Cromwell, the arbiti'aiy se- questrations of committee-men, the iniqui- tous decimations of militaiy prefects, the sale of British citizens for slavery in the West Indies, the blood of some shed on the scaff'old without legal trial, the tedious im- prisonment of many with denial of the ha- beas corpus, the exclusion of the ancient gently, the persecution of the Anglican Church, the bacchanalian rant of sectaries, the morose preciseness of Puritans, the ex- tinction of the frank and cordial joj^ousness of the national character. Were the peo- ple again to endure the mockery of the good old cause, as the Commonwealth's men af- fected to style the interests of their little faction, and be subject to Lambert's noto- rious want of principle, or to Vane's con- tempt of ordinances (a godly mode of ex- pressing the same thing), or to Hazlerig's fury, or to Harrison's fanaticism, or to the fancies of those lesser schemers, who in this utter confusion and abject state of their party were amusing themselves with plans of perfect commonwealths, and debating whether there should be a senate as well as a representation ; whether a fixed num- ber should go out or not by rotation ; and all those details of political mechanism so important in the eyes of theorists ?* Ev- eiy project of this description must have wanted what alone could give it either the pretext of legitimate existence, or the chance of pennanency, popular consent; the Re- publican party, if we exclude those who would have had a protector, and those fa- natics who expected the appearance of Je- sus Christ, was incalculably small ; not, per- haps, amounting in the whole nation to more than a few hundred persons. The little court of Charles at Bmssels watched with trembling hope intrigues of these convulsive struggles of Royalists, their enemies. During the protectorship of Oliver their best chance appeared to be, that some of the numerous schemes for his assassination might take effect. Their cor- respondence, indeed, especially among the Presbyterian or neutral pai'tj-, became more extensive;! but these men were habitually cautious ; and the Marquis of Ormond, who went over to England in the beginning of 1658, though he reported the disaffection to be still more universal than he had ex- pected, was forced to add, that there was little prospect of a rising until foreign troops should be landed in some part of the coun- tiy ; an aid which Spain had frequently promised, but, with an English fleet at sea, could not veiy easily furnish. t The death * The Rota Club, as it was called, was composed, chiefly at least, of these dealers in new Constitn- tions, which were debated in due form. Harring- ton was one of the most conspicaous. t Thurloe, vi., 579. Clarendon State Papers, 391, 395. t Carte's Letters, ii., 118. In a letter of Ormond Commonwealth.] FEOM HEiniY VII. TO GEORGE 11. 391 of their puissant enemy brightened the vi- : sions of the Roj-alists. Though the appa- rent peaceableness of Richard's government gave them some mortification, they contin- ued to spread their toils through zealous emissaries, and found a veiy general will- ingness to restore the ancient Constitution under its hereditaiy sovereign. Besides They unite the Cavaliers, who, though nu- Presbyteri- "^erous and ardent, wore impov- ans. erished and suspected, the chief Presbyterians, Lords Fairfax and Willough- by, the Earls of Manchester and Denbigh, Sir William Waller, Sir George Booth, Sir Ashley Cooper, Mr. Popham of Somerset, Mr. Howe of Gloucester, Sir Horatio Town- shend of Norfolk, with more or less of zeal and activity, pledged themselves to the roy- al cause.* Lord Fauconberg, a Royalist by family, who had married a daughter of Cromwell, undertook the important office of working on his brothers-in-law, Richard and Heniy, whose position, in respect to the army and Republican party, was so Lazai-dous. It seems, in fact, that Richard, even during his continuance in power, had not refused to hear the king's agents, f and to Hyde about this time, he seems to have seen into the king's character, and speaks of him severe- ly: "I fear his immoderate delight in empty, ef- feminate, and vulgar conversations is become an iiTesistible part of his nature," Slc — Clarendon State Papers, iii., 387. * Clarendon Papers, 391, 418, 4C0, et post. Town- sbend, a young man who seems to have been much looked up to, was not, in fact, a Presbyterian, but is reckoned among them, as not being a Cavalier, having come of age since the war, and his family neutral. t This curious fact appears for the first time, I believe, in the Clarendon State Papers, unless it is any where intimated in Carte's collection of the Ormond letters. In the fonner collection we find several allusions to it ; the first is in a letter from Rumbold, a Hoyalist emissary, to Hyde, dated Dec. 2, 1658, p. 421, from which I collect Lord Fau- conberg's share in this intrigue, which is also con- finned by a letter of Mordauut to the king, in p. 423. " The Lord Falconbridge protests that Cromwell is BO remiss a person that be can not play his own game, much less another man's, and is thereby dis- couraged from acting in business, having also many enemies wl»o oppose his gaining either power or interest in the army or civil government, because they conceive his principles contrary to theirs. He Bays, Thurloe governs CromweU, and St. John and Pierpoint govern Thurloe ; and therefore is not likely he will think himself in danger till these tell him so, nor seek a diversion of it but by their coun- cils,"— Feb, 10, 1659. These ill-grounded hopes of hopes were entertained of him, yet at that time even he could not reasonably be ex- pected to abandon his apparent interests; but soon after his fall, while his influence, or, rather, that of his father's memory, was still supposed considerable with Montagu, iNIonk, and Lockhart, they negotiated with him to pi-ocure the accession of those per- sons, and of his brother Henry, for a pen- sion of c£20,000 a year, and a title.* It soon appeared, however, that those pru- dent veterans of revolution would not em- bark under such a pilot, and that Richard was not worth purchasing on the lowest terms. Even Hemy Cromwell, with whom a separate treaty had been carried on, and who is said to have determined at one time to proclaim the king at Dubhn, from want of courage, or, as is more probable, of seri- ousness in what must have seemed so un- natui'al an undertaking, submitted quietly to the vote of Parliament that deprived him of the command of Ireland. f The conspiracy, if, indeed, so general a concert for the restoration of an- conspiracy cient laws and liberties ought to °^ have so equivocal an appellation, became ripe in the summer of 1659. The Royal- ists were to appear in arms in different quarters ; several principal towns to be seiz- ed : but as the moment grew nigh, the cour- age of most began to fail. Twenty years of depression and continual failure mated the spirits of the Cavaliers. The shade of Cromwell seemed to hover over and pro- tect the wreck of his greatness. Sir George Booth, almost alone, rose in Cheshire ; ev- ery other scheme, intended to be executed simultaneously, failing througii the increas- ed prudence of those concei-ned, or the pre- cautions taken by the government on secret Richard's accession to their cause appear in sev- eral other letters, and even Hyde seems to have given in to them, 434, 454, &.c. Broderick, another active emissai-y of the Royalists, fancied that the three above mentioned would restore the king if they dared, 477 ; but this is quite unlikely. * P. 469. This was earned on through Colonel Henry Cromwell, his cousin. It is said that Rich- ard had not courage to sign the letters to Monk and his other friends, which he afterward repented, 491. The intrigues still went on with him for a little longer. This was in May, 1659. ; t Clarendon State Papers, 434, 500, et post. Thur- I loe, vi., 686. See, also, an enigmatical letter to • Henry Cromwell, 629, which certainly hints at his union with the king ; and Carte's Letters, ii., 293. 392 CONSTITUTIONAL HISTORY OF ENGLAXD [Chap. X. intelligence of the plots; and Booth, thus deserted, made less resistance to Lambei^t than perhaps was in his power.* This dis- comfiture, of course, damped the expecta- tions of the king's party. The Presbyte- rians thought themselves ill used by their new allies, though their own friends had been almost equally cautious. f Sir Rich- ard Willis, an old Cavalier, and in all the secrets of their conspii-acy, was detected in being a spy both of Cromwell and of the new government; a discovery which struck consternation into the party, who could hardly trust any one else with greater se- curity.f In a less favorable posture of af- fairs, these untoward circumstances might have ruined Charles's hopes ; they sei-ved, as it was, to make it evident that he must look to some more efficacious aid than a people's good wishes for his restoration. The Royalists in England, who played so deep a stake on the king's account, were not unnaturally desirous that he should risk something in the game, and continually pressed that either he or one of his broth- ers would land on the coast. His standard would become a rallying-point for the well- affected, and create such a demonstration of public sentiment as would overthrow the present unstable government. But Charles, not by nature of a chivalrous tempei', shi-unk fi-om an enterpinse which was certainly veiy hazardous, unless he could have obtained a greater assistance of troops from the Low Couuti-ies than was to be hoped.§ He was as little inclined to permit the Duke of York's engaging in it, on account of the differences that had existed bet%veen them, and his knowledge of an intrigue that was going forward in England principally among the Catholics, but with the mischievous talents * Clarendon State Papers, 552, 556, &c. t Clarendon confesses, Life, p. 20, that the Cav- aliers disliked this whole iutrigne virith the Presby- terians, which was planned by Mordauut, the most active and intelligent agent that the king possessed iu England. The former, doubtless, perceived that by extending the basis of the coalition, they should lose all chance of indemnity for their own safTer- inss ; besides which, their timidity and irresolution are manifest in all the Clarendon correspondence at this period.— See particularly 491, 520. J Willis had done aU in his power to obstruct the rising. Clarendon was very slow iu behe\-ing this treachery, of which he had at length conclusive proofs, 552, 562. § Clar. Papers, 514, 530, 536, 543. of the Duke of Buckingham at its head, to set up the duke instead of himself.* He gave, however, fair words to his party, and continued for some time on the French coast, as if waiting for his opportunity. It w£is in great measure, as I suspect, to rid himself of this importunity, that he set out on his long and very needless journey to the foot of the Pyrenees. Thither the two monarchs of France and Spain, wearied with twenty years of hostility without a cause and without a purpose, had sent their ministers to conclude the celebrated treaty which bears the name of those mountains. Charles had long cherished hopes that the first fruits of their reconciliation would be a joint armament to place him on the English throne : many of his adherents almost de- spaired of any other means of restoration. But Lewis de Haro was a timid statesman, and Mazarin a cunning one : there was lit- tle to expect from their generosity ; and the price of assistance might probably be such as none but desperate and unscrupulous exiles would offer, and the English nation would with unanimous indignation reject. * Clarendon Papers, 425, 427, 458, 462, 475, 526, 579. It is evident that the Catholics had greater hopes from the duke than from the king, and con- sidered the former as already their own. A re- markable letter of Morley to Hyde, April 24, 1659, p. 458, shows the suspicions already entertained of him by the writer in point of religion ; and Hj'de is plainly not free from apprehension that he might favor the scheme of supplanting his brother. The intrigue might have gone a great way, though wo may now think it probable that their alarm magni- fied the danger. " Let me tell you," says Sir An- tony Ashley Cooper in a letter to Hyde, " that Wildman is as much an enemy now to the king as he was before a seeming friend ; yet not upon the account of a commonwealth, for his ambition meets with every day repulses and affronts from that party ; but upon a finer spun design of setting up the interest of the Duke of York against the king; in which design I fear you will find confederated the Duke of Bucks, who perhaps may draw away with him Lord Fairfax, the Presbyterians, Level- ers, and many Catholics. I am apt to think these things are not transacted without the privity of the queen ; and I pray God that they have not an ill influence upon your affairs in France," 475. Buck- ingham was surmised to have been formally recon- ciled to the Church of Rome, 427. Some supposed that he, with his friend Wildman, were for a re- pubUc ; but such men are for nothing but the in- trigue of the moment. These projects of Bucking- ham to set up the Duke of York are hinted at in a pamphlet by Shaftesburj- or one of his party, writ- ten about 1630. — Somers Tracts, viii., 342. COKMONWEALTH.] FROM HENRY TO GEORGE 11. 393 It was well for Charles that he conti-acted no public engagement with these foreign powei-s, whose co-operation must either have failed of success, or have placed on his head a degraded and unstable crown. The full toleration of popery in England, its es- tablishment in Ireland, its profession by the sovereign and his family, the suiTender of Jamaica, Dunkirk, and, perhaps, the Nor- man islands, were conditions on which the people might have thought the restoration of the Stuart line too dearly obtained. It was a more desirable object for the king to bring over, if possible, some of the leaders of the Commonwealth. Except Vane, accordingly, and the decided Repub- licans, there was hardly any man of conse- quence whom his agents did not attempt, or, at least, from whom they did not enter- tain hopes. Three stood at this time con- spicuous above the rest, not all of them in ability, but in apparent power of seiTing the royal cause by their defection, Fleetwood, Lambert, and Monk. The first had discov- ered, as far as his vmderstanding was capa- ble of perceiving any thing, that he had been the dupe of more crafty men in the cabals against Richard Cromwell, whose complete fall from power he had neither designed nor foreseen. In pique and vexation, he listen- ed to the overtures of the Royalist agents, and sometimes, if we believe their assertions, even promised to declare for the king.* But his resolutions were not to be relied upon, nor was his influence likely to prove consid- erable ; though from his post of lieutenant- general of the anny, and long accustomed precedence, he obtained a sort of outward credit far beyond his capacity. Lambert was of a very different stamp ; eager, en- terprising, ambitious, but destitute of the qualities that inspire respect or confidence. Far from the weak enthusiasm of Fleet- wood, he gave offense by displaying less • Hyde writes to the Duke of Ormond : " I pray inform the king that Fleetwood makes great pro- fessions of being converted, and of a resolution to serve the king upon the first opportunity." — Oct. 11,1659. Carte's Letters, ii., 231. See Clarendon State Papers, 551 (Sept. 2) and 577. But it is said afterward that he had " not courage enough to fol- low the honest thoughts which sometimes possess him," 592 (Oct. 31), and that Manchester, Popham, and others tried what they could do with Fleet- wood ; but, " though they left him with good resolu- tions, they were so weak as not to continue longer than the next temptation," 635 (Dec. 27). show of religion than the temper of his party required, and still more by a current suspicion that his secret faith was that of the Church of Rome, to which the partiali- ty of the Catholics toward him gave sup- port.* The crafty, unfettered ambition of Lambert i-endered it not unlikely that, find- ing his own schemes of sovereignty imprac- ticable, he would make terms with the king ; and there was not wanting those who rec- ommended the latter to secure his services by the offer of marrying his daughter ;f but it does not appear that any actual overtures were made on either side. There remained one man of eminent mil- itaiy reputation, in the command interference of a considerable insulated army, °^ Monk, to whom the Royalists anxiously looked with alternate hope and despondency. Monk's early connections were with the king's par- ty, among whom he had been defeated and taken prisoner by Fairfax at Namptwich. Yet even in this period of his life he had not escaped suspicions of disaffection, which he effaced by continuing in prison till the termination of the war in England. He then accepted a commission from the Par- liament to serve against the Irish ; and now falling entirely into his new line of politics, became strongly attached to Cromwell, by whom he was left in the military govern- ment, or, rather, vice-royalty of Scotland, which he had reduced to subjection, and kept under with a vigorous hand. Charles had once, it is said, attempted to seduce him by a letter from Cologne, which he instantly transmitted to the Protector.^ Upon Oli- * Id., 588. Carte's Letters, ii., 225. t Lord Hatton, an old Royalist, suggested this humiliating proposition in terms scarcely less so to the heir of Cerdic and Fergus. " The race is a vcri/ good gentleman's faintly, and kings have con- descended to marry subjects. The lady is pretty, of an extraordinary sweetness of disposition, and very virtuously and ingenuously disposed ; the fa- ther is a person, set aside his unhappy engagement, of very great parts and noble inclinations." — Claren- don State Papers, 592. Yet, after all. Miss L ambert was hardly more a mes-alliance than Horteuse Man- ciui, whom Charles had asked for in vain. t Biogi-. Brit., art. Monk. The Royalists con- tinued to entertain hopes of him, especially after Oliver's death. — Clarendon Papers, iii., 393, 395, 396. In a sensible letter of Colepepper to Hyde, Sept. 20, 1658, he points out Monk as able alone to restore the king, and not absolutely averse to it either in his principles or affections ; kept hitherto by the vanity of adhering to his professions, and by 394 COXSTITUTIONAL HISTORY OF ENGLAND [Chap. X. ver's death he wrote a very sensible letter to Richard Cromwell, contaiaing his advice for the government. He recommends him to obtain the affections of the moderate Pres- byterian ministers, who have much influ- ence over the people, to summon to his House of Lords the wisest and most faith- ful of the old nobiiitj- and some of the lead- ing gently, to diminish the number of supe- rior officers in the army by throwing eveiy two regiments into one, and to take into his \ council as chief advisers, Whitelock, St. ^ John, Lord Broghill, Sir Richard Onslow, j Pierpoint, and Thurloe.* The judicious- j ness of this advice is the surest evidence of j its sincerity, and must leave no doubt on our , minds that Monk was at that time vezy far fi-om harboring any thoughts of the king's restoration. But when, thi-ough the force of circum- ffis dissim- stances and the deficiencies in the j Illation. young Protector's capacitj-, he saw the house of Cromwell forever fallen, it was for Monk to consider what course he [ should follow, and by what means the nation was to be rescued from the state of anarchy that seemed to menace it. That very dif- ferent plans must have passed through his mind before he commenced his march from Scotland, it is easy to conjecture ; but at what time his determination was finally tak- en, we can not certainly pronounce. f It bis affection to Cromwell, tlie latter whereof is dis- solved both by the jealousies he entertained of him , and by his death, &c. — Id., 412. j * Thorloe, vii., 3?7. Monk wrote about the same j time against the Earl of Argjle as not a friend to the government, 584. Two years afterward he took away his hfe as being too much so. t If the account of his chaplain. Dr. Price, repub- lished in Maseres's Tracts, vol. ii., be worthy of trust. Monk gave so much encouragement to his | brother, a clergjTiian, secretly dispatched to Scot- land by Sir John Grenvil.his relation, in June, 1659, ' as to have approved Sir George Booth's insurrec- tion, and to have been on the point of publishing a declaration in favor of it. — P. 718. But this is flatly in contradiction of what Clarendon asserts, that the general not only sent away his brother vrith no hopes, but threatened to hang him if he came again on such an errand : and, in fact, if any thing so favorable as what Price tells us had occurred, the j king could not fail to have known it. — See Claren- i don State Papers, iii., 343. This throws some sus- ' picion on Price's subsequent narrative (so far as it ; professes to relate the general's intentions; ; so that I rely far less on it than on Monk's ovsti behavior, j which seems irreconcilable with his professions of i Kepuhlican principles. It is, however, an obscure I would be the most honorable supposition to believe that he was sincere in those solemn protestations of adherence to the Common- wealth which he poured forth, as well dur- ing his mai'ch as after his aiTival in London ; till discovering, at length, the popular zeal for the king's restoration, he concuiTed in a change which it would have been unwise, and perhaps impracticable, to resist. This, however, seems not easily reconcilable to Monk's proceedings in new-modeling his army, and confiding power, both in Scotland and England, to men of known intentions toward royalty ; nor did his assurances of support to the Republican party become less frequent or explicit at a time when ev- ery one must believe that he had taken bis point of history, which will easily admit of differ- ent opinions. The story told by Locke, on Lord .Shaftesbury's authority, that Monk had agreed with the French ambassador to take on himself the government, wherein he was to have the support of Mazarin, and that his wife, having overheard what was go- ing forward, sent notice to Shafteshory, who was thus enabled to fhastrate the intrigue (Locke's Works, iii., 436/, seems to have been confirmed lately by Mr. D'Israeli, in an extract from the manu- script memoirs of Sir Thomas Browne (Curiosities of Literature, N. S., vol. ii.), but in terms so nearly resembling those of Locke, that it may be suspected of being merely an echo. It is certain, as we find by PhiUips's continuation of Baker's Chronicles (said to be assisted in this part by Sir Thomas Clarges, Monk's brother-in-law), that Bourdeanx, the French ambassador, did make such overtures to the general, who absolutely refused to enter npon them ; but, as the writer admits, received a visit from the ambassador on condition that he should propose nothing in relation to public mat- ters. I quote from Kennet's Register, 85. But, according to my present impression, this is more Mkely to have been the foundation of Shaftesbury's story, who might have heard from Mrs. Monk the circumstance of the visit, and conceived suspicions upon it, which he afterward turned into proofs. It was evidently not in Monk's power to have n.surped the government, after he had let the Royalist in- cUnarions of the people show themselves ; and he was by no means of a rash character. He must have taken his resolution when the secluded mem- bers were restored to the House, Feb. 21 ; and this alleged intrigue with Mazarin could hardly have been so early. It may be added, that in one of the pamphlets about the time of the Exclusion Bill, written by Shaftesburj' himself, or one of his party (Somers Tracts, viii., 338), he is hinted to have principally brought about the Restcration ; " without whose courage and dexterity some men, the most highly rewarded, had done otherwise than they did." But this still depends on his veracity. COMMOSWEALTH.] FROM HENRY VII. TO GEORGE n. 395 resolution, and even after he had communi- cated -with the king. I incline, therefore, upon the whole, to believe that Monk, not accustomed to respect the Parliament, and incapable, both by his temperament and by tlie course of his life, of any enthusiasm for the name of liberty, had satisfied himself as to the expediency of the king's restoration from the time that the Cromwells had sunk below his power to assist them ; though his projects were still subservient to his own security, which he was resolved not to for- feit by any premature declaration or unsuc- cessful enterprise. If the coalition of Cav- aliers and Presbyterians, and the strong bent of the entire nation, had not convinced this wary dissembler that he could not fail of success, he woiJd have continued ti-ue to his professions as the general of a Common- wealth, content with crushing his rival Lam- bert, and breaking that fanatical interest which he most disliked. That he aimed at such a sovereignty as Cromwell had usui-p- ed has been the natural conjecture of many, but does not appeal- to me either warranted by any presumptive evidence, or consonant to the good sense and phlegmatic temper of Monk. At the moment when, with a small but veteran army of 7000 men, he took up his quaitei-s in London, it seemed to be within his arbitrament which way the scale should preponderate. On one side were the wish- es of the nation, but restrained by fear ; on the other, established possession, maintain- ed by the sword, but rendered precarious by disunion and treachery. It is certainly veiy possible that, by keeping close to tlie Parliament, Monk might have retarded, at least for a considerable time, the gi'eat event which has immortalized him ; but it can hardly be said that the king's restoration was rather owing to him than to the general sentiments of the nation and almost the ne- cessity of circumstances, which had already made every judicious person anticipate the sole teiTnination of our civil discord which they had prepared. Whitelock, who, incapa- ble of refusing compliance with the ruling power, had sat in the committee of safety established in October, 1659, by tlie officers who had ejjpelled the Parliament, has re- corded a curious anecdote, whence we may collect how Uttle was wanting to prevent Monk from being the great mover in the Restoration. He had for some time, as ap- pears by his journal, entertained a persua- sion that the general meditated nothing but the king's return, to which he was, doubt- less, himself well inclined, except fi-om some api)rehensiou for the public interest, and some also for his own. This induced him to have a private conference with Fleet- wood, which he enters as of the 22d De- cember, 1G59, wherein, after pointing out the probable designs of Monk, he urged him either to take possession of the Tower and declare for a free Parliament, in which he would have the assistance of the city, or to send some trusty person to Breda, who might offer to bring in the king upon such temis as should be settled. Both these propositions were intended as different methods of bringing about a revolution, which he judged to be inevitable. " By this means," he contended, " Fleetwood might make terms with the king for preser- vation of himself and his friends, and of that cause, in a good measure, in which they had been engaged ; but if it were left to Monk, they and all that had been done would be left to the danger of desti'uction. Fleetwood then asked me ' if I would be willing to go myself upon this employment.' I answered ' that I would go, if Fleetwood thought fit to send me ;' and after much other discourse to this effect, Fleetwood seemed fully satisfied to send me to the king, and desired me to go and prepare my- self forthwith for the journey ; and that in the mean time Fleetwood and his friends would prepare the instructions for me, so that I might begin my journey this evening or to-moiTOW morning early. " In going away from Fleetwood, met Vane, Desborough, and Beny in the next room, coming to speak with Fleetwood, who thereupon desired me to stay a httle ; and I suspected what would be the issue of their consultation, and within a quarter of an hour Fleetwood came to me, and in much passion said to me, ' I can not do it, I can not do it.' I desired his reason w^hy he could not do it. He answered, ' Those gentlemen have remembered me, and it is true that I am engaged not to do any such thing without my Lord Lambert's con- sent.' I replied ' that Lambert was at too great a distance to have his consent to this business, which must ' be instantly acted.' 396 COXSTITUTIOXAL HISTORY OF ENGLAND [Chap. X. Fleetwood again said, 'I can not do it with- out him.' Then I said, 'You will ruin yourself and your friends.' He said, ' I can not help it.' Then I told him I must take my leave, and so we parted."* Whatever might have been in the power Secluded of ]Monk, by adhering to his dec- m"rn [o larations of obedience to the Par- their seals, liament, it would have been too late for him, after consenting to the restora- tion of the secluded members to their seats on Febi-uary 21, 1660, to withstand the set- tlement which it seems incredible that he should not at that time have desired. That he continued for at least six weeks after- ward in a course of astonishing dissimula- tion, so as to deceive, in a gi-eat measure, almost all the Royalists, who were distiust- iiig his intentions at the veiy moment when he made his first and most private tender of service to the king through Sir John Grenvil about the beginning of April, might at first seem rather to have proceeded from a sort of inability to shake off his inveterate reservedness, than from consummate pru- dence and discretion ; for any sudden ris- ings in the king's favor, or an intrigue in the council of state, might easily have brought about the restoration without his concur- rence ; and, even as it was, the language held in the House of Commons before their dissolution, the votes expunging all that ap- peared on their journals against the regal government and the House of Lords,f and, * Whitelock, 690. t The Engagement was repealed March 13. This was of itself tantamount to a declaration in favor of the king, though perhaps the previous or- der of March 5, that the solemn League and Cov- enant should be read in churches, was still more so. Prj-nne was the first wlio Iiad the boldness to speak for the king, declaring his opinion that the Parliament was dissolved by the death of Charles the First : he was supported by one or two more. — Clar. Papers, 696. Tharloe, vii., 854. Carte's Letters, ii., 312. Prynne wrote a pamphlet advis- ing the peers to meet and issue writs for a new Pailiament, according to the provisions of the Tri- ennial Act ; which, in fact, was no bad expedient. — Somers Tracts, \-i., 534. A speech of Sir Harbottle Grimston before the close of the Pariiament, March, 1660, is more ex- plicit for the king's restoration than any thing which I have seen elsewhere ; and as I do not know that it has been printed, I will give an extract from the Harleian MS., 1576. He urges it as necessary to be done by them, and not left for the next Parliament, who all men be- lieved would restore him. '• This is so true and so above all, the course of the elections for the new Parliament, made it sufficiently evident that the general had delayed his assurances of loyalty till they had lost a part of their value. It is, however, a full explanation of Monk's public conduct, that he was not se- cure of the army, chiefly imbued with fa- natical principles, and bearing an inveterate hati-ed toward the name of Charles Stuart. A correspondent of the king writes to him well understood, that we all believe that whatso- ever our thoughts are, this will be the opinion of the succeeding Parliament, whose concerns as well as affections will make them active for his intro- duction. And I appeal, then, to your own judg- ments whether it is likely that those persons, as to their particular interest more unconcerned, and probably less knowing in the affairs of the nation, can or would obtain for any those terms or articles as we are yet in a capacity to procure both for them and us. I must confess sincerely that it would be as strange to me as a miracle, did I not know that God infatuates whom he designs to destroy, that we can see the king's return so unavoidable, and yet be no more studious of serving him, or at least ourselves, in the managing of his recall. " The general, that noble personage to whom un- der God we do and must owe all the advantages of our past and future changes, will be as far from opposing us in the design, as the design is removed from the disadvantage of the nation. He himself is, I am confident, of the same opinion ; and if he has not yet given notice of it to the House, it is not that he does not look upon it as the best expedient : but he only forbears to oppose it, that he might not seem to necessitate us, and by an over early dis- covery of his own judgment be thought to take from j us the freedom of ours." In another place he says, " That the recalling of our king is this only way (for composure of affairs), is already grown almost as visible as true ; and, I were it but confessed of all of whom it is believed, I I should quickly hear from the greatest part of this j House what now it hears alone from me. Had we as little reason to fear as we have too much, that, if we bring not in the king, he either already is, or ' shortly may be, in a capacity of coming in unsent for ; methinks the very knowledge of his right were enough to keep just persons, such as we would be conceived to be, from being accessary to his longer absence. We are already, and but justly, report- ed to have been the occasion of our prince's ban- ishment; we may, then, with reason and equal truth, for aught I know, be thought to have been the contrivers of it, unless we endeavor the con- trary, by not suffering the mischief to continue longer wliich is in our power to remove." Such passages as these, and the general tenor of public speeches, sermons, and pamphlets, in the spring of 1660, show how little Monk can be justly said to have restored Charles II., except so far as he did not persist in preventing it so long as he misht have done. Commonwealth.] FROM HENRY VII. TO GEORGE II. 397 on the 28th of March, " The army is not yet in q state to hear your name publicly."* In the beginning of that month, many of the officers, instigated by Hazlerig and his friends, had protested to Monk against the proceedings of the House, insisting that they should abjure the king and House of Lords. He repressed their mutinous spir- it, and bade them obey the Parliament, as he should do.f Hence he redoubled his protestations of abhorrence of monarchj', and seemed for several weeks, in exterior demonsti'ations, ratlier the gi-aud impedi- ment to the king's restoration, than the one person who was to have the credit of it.t Meanwhile he silently proceeded in displac- ing the officers whom he could least trust, and disposing the regiments near to the me- tropolis, or at a distance, according to his knowledge of their tempers, the Parliament having given him a commission as lord-gen- eral of all the forces in the three kingdoms. § The commissioners appointed by Parlia- ment for raising the militia in each county were chiefly gentlemen of the Presbyterian party; and there seemed likely to be such * Clarendon State Papers, 711. f Id., 696. X Id., 678, et post. He wrote a letter (Jan. 21) to the gentry of Devon, who had petitioned tlie speaker for the readmission of the secluded mem- bers, objecting to that measure as Ukely to bring in monarchy, very judicious, and with an air of sincerity that might deceive any one ; and after the restoration of these sechided members, he made a speech to them (Feb. 21) strongly against mon- archy ; and that so ingeniously, upon such good reasons, so much without invective or fanaticism, that the professional hypocrites, who were used to their own tone of imposture, were deceived by his. Cromwell was a mere bungler to him. — See these in Harris's Charles II., 296, or Somers Tracts, vi., 551. It can not be wondered at that the Roy- ahsts were exasperated at Monk's behavior. They published abusive pamphlets against him iu Felj- ruarj-, from which Kcnnet, in his Register, p. 53, gives quotations: "Whereas he was the common hopes of all men, he is now tlie common hatred of all men, as a traitor more detestable than Oliver himself, who, though he manacled the citizens' hands, yet never took away the doors of the city,'' and so forth. It appears by the letters of Mor- daunt and Brodorick to Hyde, and by those of Hyde himself in the Clai-endon Papers, that they had no sort of confidence in Monk till near the end of March ; though Barwick, another of his con'e- spondents, seems to have had more insight into the general's designs (Tburloe, 852, 860, 870), who had expressed himself to a friend of the writer, prob- ably Clobery, fully in favor of the king, before Mar. 19. § Clar., 699, 705. Thui-loe, vii., 860, 870. a considerable force under then* orders as might rescue the nation from its ignomini- ous servitude to the army. It fact, some of the Royalists expected that the great question would not bo carried without an appeal to the sword.* The delay of Monk in privately assuring the king of his fidelity is still not easy to be explained, but may have proceeded from a want of confidence in Charles's secrecy, or that of his counsel- ors. It must be admitted that Lord Clar- endon, who has written with some minute- ness and accuracy this important part of his historjs has more than insinuated (especial- ly as we now read liis genuine language, which the ill faith of his original editors had shamefully garbled) that Monk entertained no purposes in the king's favor till the last moment; but a manifest prejudice that shows itself in all his writings against the general, derived partly from offense at his extreme reseiTe and caution during this period, partly from personal resentment of Monk's behavior at the time of his own impeachment, greatly takes off from the weight of the noble historian's judgment.f The months of March and April, 1660, were a period of extreme inqui- pij^guitigs etude, during which every one about the spoke of the king's restoration as l^^^'"""™- imminent, yet none could distinctly perceive by what means it would be effected, and much less how the difficulties of such a set- tlement could be overcome. t As the mo- * A correspondent of Ormond writes, March 16 : " This night the fatal Long Parliament hath dis- solved itself. All this appears well ; but I believe we shall not be settled upon our ancient foimdations without a war, for which all prepare vigorously and openly." — Carte's Letters, ii., 513. It appears, also, from a letter of Massey to Hj'de, that a rising iu different counties was intended. — Thurloe, 854. + After giving the substance of Monk's speech to the House, recommending a new Parliament, but insisting on Conunonwealth principles, Clarendon goes on: "There was no dissimulation in this, in order to cover and conceal his good intentions to the king ; for without doubt he had not to this hour en- tertained any purpose or thought to serve him, but was really of the opinion he expressed in his paper, that it was a work impossible ; and desired nothing but that he might see a commonwealth established en such a model as Holland was, where he had been bred, and that himself might enjoy the author- ity and place which the Prince of Orange possessed in that government." t The Clarendon and Thurloe Papers are full of more proof of this tlian can be quoted, and are very amusing to read, as a perpetually shifting picture 398 COXSTITUTIO^'AL HISTOEY OF EXGLA^S'D [Chap. X. inent approached, men turned their atten- tion more to the obstacles and dangers that of hopes and fears, and conjectures right or wrong. Pep3's's Diary also, in these two months, strik- ingly shows the prevailing uncertainty as to plonk's intentions, as well as the general desire of having the king brought in. It seems plain that, if he had delayed a very little longer, he would have lost the whole credit of the Restora- tion. All parties began to crowd in with address- es to the king in the first part of April, before Monk was known to have declared himself Thurloe, among others, was full of his offers, though evi- dently anxious to find out whether the king had an interest with Monk, p. 898. The Royalists had long entertained hopes, from time to time, of this deep politician ; but it is certain he never wished well to their cause, and with St. John and Pier- point, had been most zealous, to the last moment that it seemed practicable, against the Restora- tion. There had been, so late as February, 1660, or even afterward, a strange plan of setting up again Richard Cromwell, wherein not only these three, but Montague, Jones, and others, were thought to be concerned, erroneously, no doubt, as to Montague. — Clarendon State Papers, 693. Carte's Letters, ii., 310, 330. " One of the greatest reasons they alleged was, that the king's party, consisting al- together of indigent men, will become powerful by little and little to force the king, whatever be his own disposition, to break any engagement he can now make ; and, since the nation is bent on a sin- gle person, none will combine all interests so well as Richard." This made Monk, it is said, jealous of St. John, so that he was chosen at Cambridge to exclude him. In a letter of Thurloe to Downing at the Hague, April 6, he says, "that many of the Presbyterians are alarmed at the prospect, and thinking how to keep the king out without joining the sectaries," vii., 867. This could hardly be achieved but by setting up Richard ; yet that, as is truly said in one of the letters quoted, was ri- diculous. None were so conspicuous and intrepid on the king's side as the Presbyterian ministers. Reynolds preached before the lord-mayor, Feb. 28, with manifest allusion to the Restoration: Gau- den (who may be reckoned on that side, as con- fonning to it), on the same day, much more explic- iti3". — Kennet's Register, 69. Sharp says, in a let- ter to a correspondent in Scotland, that he. Ash, and Calamy had a long conversation with Monk, March 11, " and convinced him a commonwealth was impracticable, and to oui- sense sent him off that sense he had hitherto maintained, and came from him as being satisfied of the necessity of dis- solving this Hoase, and calling a new Parliament." — Id., p. 81. Baxter thinks the Presbyterian min- isters, together with Clarges and Morrice, turned Monk's resolution, and induced him to declare fbr the king. — Life, p. 2. This is a vei-y plausible con- jecture, though I incline to think Monk more dis- posed that way by his own judgment or his wife's. But she was influenced by the Presbyterian cler- gy. They evidently deserved of Charles what they did not meet with. lay in their way. The restoration of a ban- ished family, concerning whom they knew little, and what they knew not entirely to their satisfaction, with rained, perhaps re- vengeful followers ; the returning ascenden- cy of a distressed paity, who had sustained losses that could not be repau'ed without fresh changes of propert}', injuries that could not be atoned without fresh severi- , ties ; the conflicting pretensions of two 1 churches, one loth to release its claim, the j other to yield its possession ; the unsettled j dissensions between the crown and Par- I liament, suspended only by civil war and usm-pation ; all seemed pregnant with such difficulties, that prudent men could hard- ly look forward to the impending revolu- tion without some hesitation and anxiety.* Hence Pierpoint, one of the wisest states- men in England, though not so far implica- ted in past transactions as to have much to fear, seems never to have overcome his re- pugnance to the recall of the king; and I am by no means convinced that the slow- ness of Monk himself was not in some meas- ure owing to his sense of the embarrass- ments that might attend that event. The Presbyterians, generally speaking, had al- ways been on their guard against an uncon- ditional restoration. They felt much more of hati'ed to the prevailing power than of at- tachment to the house of Stuart, and had no disposition to relinquish, either as to church or state goverament, those principles * The Royalists began too soon with threaten* ing speeches, which well-nigh frustrated their ob- ject.—Id., 721, 722, 727. Carte's Letters, 318. Thurloe, 887. One Dr. Griffith published a little book vindicating the late king in his war against the Parliament, for which the ruling party were by no means ripe ; and having justified it before the council, was committed to the Gatehouse early in April — Id. ibid. These imprudences occasion- ed the king's declaration from Breda. — Somers Tracts, vi., 562. Another, also, was published, April 25, 1660, signed by several peers, knights, divines, &c., of the Royalist party, disclaiming all private passions and resentments. — Kennet's Reg- ister, 120. Clar., vii., 471. But these public pro- fessions were weak disguises when belied by their current language. — See Baxter, 217. Marchmont Needham, in a tract entitled "Interest will not lye ' (written in answer to an artful pamphlet as- cribed to Fell, afterward Bishop of Oxford, and re- piinted in Maseres's Tracts, " The Interest of Eng- I land stated "), endeavored to alarm all other par- I ties, especially the Presbyterians, with represent- I ations of the violence they had to expect {torn that of the king.— See Harris's Charles H., 268. Commonwealth.] FEOM HENRY VII. TO GEORGE II. 399 for which they had fought against Charles the First. Hence they began, from the very time that they entered into the coali- tion, that is, the spring and summer of lGo9, to talk of the treaty of Newport, as if all that had passed since their vote of the 5th of December, 1646, that the king's conces- sions were a sufficient ground Avhereou to proceed to the settlement of the kingdom, had been like a hideous dream, from which they had awakened to proceed exactly in their former course.* The Council of State, appointed on the 23d of February, two days after the return of the secluded members, consisted principally of this par- ty ; and there can, I conceive, be no ques- tion that, if Monk had continued his neu- trality to the last, they would, in conjunc- tion with the new Parliament, have sent over propositions for the king's acceptance. Meetings were held of the chief Presbyte- rian lords, Manchester, Northumberland, Bedford, Say, with Pierpoiut (who, finding it too late to prevent the king's return, en- deavored to render it as little dangerous as possible), HoUis, Annesley, Sii' William Waller, Lewis, and other leaders of that party. Monk sometimes attended on these occasions, and always urged the most rigid hmitations.f His sincerity in this was the less suspected, that his wife, to whom he was notoriously submissive, was entirely * Proofs of the disposition among this party to revive the treaty of the Isle of Wight occur per- petually in the Thurloe and Clarendon Papers, and in those published by Carte. The king's agents in England ev-idently expected nothing better, and were, generally speaking, much for his accepting the propositions. " The Presbyterian Lords," says Sir Allen Broderick to Hyde, " with many of whom I have spoken, pretend that, should the king come in upon any such insurrection, abetted by those of his own party, he would be more absolute than his father was in the height of his prerogative. Stay therefore, say they, till we are ready ; our numbers 80 added will abundantly recompense the delay, rendering what is now extremely doubtful moral- ly certain, and establisliing his throne npon the true basis, hberty and property." — July 16, 1659. Clar. State Papers, 527. t Clarendon, Hist, of Rebellion, vii., 440. State Papers, 705, 729. "There is so insolent a spirit among the nobilitj-," says Clarendon, about the middle of February, '• that I really fear it will tnm to an aristocracy ; Monk inclining that way too. My opinion is clear, that the king ought not to part with the Church, crown, or friends' lands, lest he make my Lord of Northumberland his equal, nay, perhaps his superior." — P. 6S0. Presbyterian, though a friend to the king; and his own preference of that sect had al- ways been declared in a more consistent and unequivocal manner than was usual to his dark temper. These projected limitations, which but a few weeks before Chai-les would have thankfully accepted, seemed now intolera- ble ; so rapidly do men learn, in the course of prosperous fortune, to scorn what they just before hardly presumed to expect. Those seemed his friends, not who desu-ed to restore him, but who would do so at the least sacrifice of his power and pride. Sev- eral of the council, and others in high posts, sent word that they would resist the impo- sition of unreasonable terms.* Monk him- self redeemed his ambiguous and dilatory behavior by taking the restoration, as it were, out of the hands of the council, and suggesting the judicious scheme of anticipa- ting their proposals by the king's letter to the two houses of Parliament. For this purpose he had managed, with all his dis- sembling pretenses of Commonwealth prin- ciples, or, when he was (as it were) com- pelled to lay them aside, of insisting on rig- orous limitations, to prevent any overtm'es from the council, who were almost entirely Presbyterian, before the meeting of Parlia- ment, whicli would have considerably em- barrassed the king's affairs, f The elections, * Downing, the minister at the Hague, was one of these. His overtures to the king were as early as Monk's, at the beginning of April ; he declared his wish to see his majesty restored on good terms, though many were desirous to make him a doge of Venice. — Carte's Letters, ii., 320. See, also, a remarkable letter of the king to Monk (dated May 21 ; but I suspect he used the new style, therefore read May 11), intimating what a sei-vice it would be to prevent the imposition of any terms. — Clar., 745. And another from him to Morrice of the same tenor. May 20 (N. S.), 1660, and hinting that his maj- estj-'s friends in the House had complied with the general in all things, according to the king's direc- tions, departing from their own sense, and restrain- ing themselves from pursuing what they thought most for his service. — Thurloe, vii., 912. This per- haps referred to the indemnity and other provi- sions then pending in the Commons, or, rather, to the delay of a few days before the delivery of Sir John Grenvil's message. t " Monk came this day (about the first week of April) to the council, and assured them that, not- withstanding all the appearance of a general de- sii-e of kingly government, yet it was in no wise his sense, and that he would spend the last drop of his blood to maintain the coutrarj-."— Extract of a 400 COXSTITUTIOJfAL HISTORY OF ENGLAND [Chap. X. meantime, bad taken a course which the faction now in power by no means regarded with satisfaction. Though the late House of Commons had passed a resolution that no j person who had assisted in any war against j the Parliament since 1642, unless he should < since have manifested his good affection to- ward it, should be capable of being elected, yet this, even if it had been regarded, as it was not, by the people, would have been a feeble barrier against the Royalist party, composed in a gi'eat measure of young men who had grown up under the Common- wealth, and those who, living in the Parlia- mentary counties during the civil war, had paid a reluctant obedience to its power.* The tide ran so strongly for the king's friends, that it was as much as the Presby- terians could effect, with the weight of gov- ernment in theu- hands, f to obtain about an letter from Thurloe to Dowuine. Carte's Letters, ii., 322. " The Council of State are utterly igno- rant of Monk's treating with the king- ; and surely, as the present temper of the Council of State is now, and may possibly be also of the Parliament, by reason of the Presbyterian influence upon both, I should think the first chapman will not be the worst, who perhaps will not offer so good a rate in conjunction with the company as he may give to engross the commodity." — Clar., 722, April 6. This sentence is a clew to all the intrigue. It is said soon afterward (p. 726, April 11) that the Pres- byterians were much ti'oubled at the course of the elections, which made some of the Council of State again address themselves to Monk for his consent to propositions they would send to the king ; but he absolutely refused, and said he would leave all to a free Parliament, as he had promised the na- tion. Yet, tliough the elections went as weU as the Royalists could reasonably expect, Hyde was dissatisfied that the king was not restored without I the intervention of the new Pailiament ; and this , may have been one reason of his spleen against Monk.— P. 726, 731. * A proposed resolution, that those who had been , on the king's side, or their sons, should be disabled from voting at elections, was lost by 93 to 56, the last effort of the expiring Long Parliament. — Joum- , als, 13th of !March. The electors did not think themselves bound by this arbitrai-y exclusion of j the Cavaliers from Parliament; several of whom (though not, perhaps, a great number within the terms of the resolution) were returned. Massey, I however, having gone down to stand for Glouces- ' ter, was put under arrest by order of the Council of State. — Thurloe, 887. Clarendon, who was himself not insensible to that kind of superstition, I had fancied that any thing done at Gloucester by Massey for the king's sen'ice would make a pow- ! erful impression on the people. 1 t It is a curious proof of the state of public sen- , equality of strength with the Cavaliers in the Convention Parliament. It has been a frequent reproach to the conductors of this great revolution, that the king was restored without those terms and limitations which might secure the nation against his abuse of their confidence : and this not only by cotemporaries who had suf- fered by the jralitical and religious changes consequent on the restoration, or those who, in after limes, have written with some pre- possession against the English Church and constitutional monarchy, but by the most temperate and reasonable men ; so that it has become almost regular to cast on the Convention Parliament, and more especially on Monk, the imputation of having abandon- ed public liberty, and brought on, by their in- considerate loyalty or self-interested treach- eiy, the mis-government of the last two Stuarts, and the necessity of their ultimate expulsion. But, as this is a veiy material part of our history, and those who pro- nounce upon it have not always a veiy dis- tinct notion either of what was or what could have been done, it may be worth while to consider the matter somewhat more an- alytically ; confining myself, it is to be ob- sei'ved, in the present chapter, to what took place before the king's personal assumption of the government on the 29th of Maj^, 1660. The subsequent proceedings of the Conven- tion Parliament fall within another period. We may remark, in the first place, that the unconditional restoration of Charles the Second is sometimes spoken of in too hy- perbolical language, as if he had come in as a sort of conqueror, with the laws and liber- ties of the people at his discretion ; yet he was restored to nothing but the bounded prerogatives of a King of England ; bounded by every ancient and modern statute, includ- ing those of the Long Parliament, which had been enacted for the subjects' security. If it be ti'ue, as I have elsewhere obsei-ved, that the Long Parliament, in the year 1641, had established, in its most essential parts, our existing Constitution, it can hardly be maintained that fi-esh limitations and addi- tional securities were absolutely indispensa- timent, that, though Monk himself wrote a letter to the electors of Bridgenorth, recommending Thur- loe, the Cavalier party was so powerful that his friends did not even produce the letter, lest it should be treated with neglect. — Thurloe, vii., 695. Commonwealth.] FROM HENRY VII. TO GEORGE II. 401 ble, before the most fundamental of all its principles, the government by king, Lords, and Commons, could be permitted to take its regular course. Those who so vehe- mently reprobate the want of conditions at the Restoration would do well to point out what conditions should have been imposed, and wliat mischiefs they can probably ti'ace from their omission.* They should be able also to prove that, in the circumstances of the time, it was quite as feasible and conven- ient to make certain secure and obligatory provisions the terms of the king's restora- tion, as seems to be taken for granted. The chief Presbj'terians appear to have Planofreviv- considered the treaty of New- o^Newpm ^ port, if not as fit to be renewed inexpedient, in every article, j'et at least as the basis of the compact into which they were to enter with Charles the Second. f But were the concessions wrested in this ti'eaty from his father, in the hour of peril and necessity, fit to become the permanent rules of the English Constitution? Turn to the articles prescribed by the Long Par- liament in that negotiation. Not to men- tion the establishment of a I'igorous Pres- byteiy in the Church, they had insisted on the exclusive command of all forces by land and sea for twenty years, with the sole power of levying and expending the moneys necessaiy for their support ; on the nomi- nation of the principal officers of state and of the judges during the same pei-iod ; and on the exclusion of the king's adherents from all trust or political power. Admit even that the insincerity and arbitraiy jjrin- ciples of Charles the First had rendered necessary such exti-aordinary precautions, was it to bn supposed that the executive power should not revert to his successor ? Better it were, beyond comparison, to main- tain the perpetual exclusion of his family tlian to mock them with such a titular crown, * " To the kiug's coming iu without conditions may be well imputed all the erroi's of his reign." Thus .says Burnet. The great political error, if so it should be termed, of his reign, was a conspiracy with the King of France and some wicked advis- ers at home to subvert the religion and liberty of Lis subjects ; and it is difficult to perceive by what conditions this secret intrigue could have been prevented. t Clar. Papers, p. 729. They resolved to send the articles of that treaty to the king, leaving out the preface. This was about the middle of April. C c the certain cause of discontent and intrigue, and to mingle premature distrust with their professions of aflection. There was un- doubtedly much to apprehend from the king's restoration ; but it might be expect- ed that a steady regard for public liberty in the Parlianu;iit and the nation would obvi- ate that danger without any momentous change of the Constitution ; or that, if such a sentiment sliould prove unhappily too weak, no guarantees of ti-eaties or statutes would afford a genuine security. If, however, we were to be convinced that the restoration was effected „ „. , Difficulty Without a sufficient safeguard of framing against the future abuses of royal power, wo must still allow, on looking at- tentively at the circumstances, that there wore very great difficulties in the way of any stipulations for that purpose. It must be evident that any formal treaty between Charles and the English government, as it stood in April, 16G0, was inconsistent with their common principle. That government was, by its own declarations, only de facto, only temporary ; the return of the secluded members to their seats, and the votes tliey subsequently passed, held forth to the peo- ple that eveiy thing done since the force put on the House in December, 1648, was by a usurpation ; the restoration of the an- cient monarchy was implied in all recent measures, and was considered as out of all doubt by the whole kingdom ; but between a King of England and his subjects, no ti-eaty, as such, could be binding; there was no possibility of entering into stipulations with Chai'les, though in exile, to which a court of justice would pay the slightest at- tention, except by means of acts of Parlia- ment. It was doubtless possible that the Council of State might have entered into a secret agreement with him on certain terms, to be incorporated afterward into bills, as at the treaty of Newport ; but at that treaty his father, though in prison, was the ac- knowledged sovereign of England; and it is manifest that the king's recognition must precede the enactment of any law. It is equally obvious that the contracting parties would no longer be the same, and that the conditions that seemed indispensable to the Council of State might not meet with the approbation of Parliament. It might occur to an impatient people that the former were 402 CONSTITUTIONAL HISTORY OF ENGLAND [Chap. X. not invested with such legal or permanent i anthonty as could give them any pretext for bargaining with the king, even in behalf of public liberty. But if the Council of State, or even the Parliament on its first meeting, had resolv- ed to tender any hard propositions to the king, as the terms, if not of his recognition, yet of his being permitted to exercise the royal functions, was there not a possibility that he might demur about their accept- ance ? that a negotiation might ensue to procure some abatement ? that, in the in- terchange of couriers between London and Brussels, some weeks, at least, might be whiled away ? Clarendon, we are sure, inflexible and uncompromising as to his master's honor, would have dissuaded such enormous sacrifices as had been exacted from the late king. And during this delay, while no legal authority would have sub- sisted, so that no oflficer could have collect- ed the taxes or executed process without liability to punishment, in what a precarious state would the Parliament have stood ! On the one hand, the nation, almost mad- dened with the intoxication of reviving loy- alty, and rather prone to cast at the king's feet the pnvileges and liberties it possessed than to demand fresh security for them, might insist upon his immediate return, and impair the authority of Parliament. On the other hand, the army, desperately ir- reconcilable to the name of Stuart, and sul- lenly resenting the hj'pocrisy that had de- luded them, though they knew no longer where to seek a leader, were accessible to the furious Commonwealth's men, who, rushing as it were with lighted torches along their ranks, endeavored to rekindle a fanaticism that had not quite consumed its fuel.* The escape of Lambert from the Tower had stnick a panic into all the king- dom ; some such accident might again fur- nish a rallying point for the disaffected, and plmige the countiy into an unfathomable abyss of confusion. Hence the motion of Sir IMatthew Hale, in the Convention Par- liament, to appoint a committee who should draw up propositions to be sent over for the king's acceptance, does not appear to me well timed and expedient ; nor can I cen- .8ui"e Monk for having objected to it.f The * Life of Clarendon, p. 10. t "This," says Burnet, somewhat invidionsly, business in hand required greater dispatch. If the king's restoration was an essential blessing, it was not to be thrown away in the debates of a committee. A waiy, scru- pulous, conscientious English lawyer, like Hale, is always wanting in the rapidity and decision necessary for revolutions, though he may be highly useful in preventing them from going too far. It is, I confess, more probable that the king would have accepted almost conduct of any conditions tendered to him : Conven- 11 111 1 about such, at least, would have been the this not advice of most of his counselors ; blamabie, and his own conduct in Scotland was suffi- cient to show how little any sense of honor or dignity would have stood in his way. But on what grounds did his English friends — nay, some of the Pre.sbyterians them- selves, advise his submission to the dictates of that party ? It was in the expectation that the next free Parliament, summoned by his own writ, would undo all this work of stipulation, and restore him to an mifet- tered prerogative ; and this expectation there was eveiy ground, from the temper of the nation, to entertain. Unless the Convention Parliament had bargained for its own perpetuity, or the privy council had been made immovable, or a military force, independent of the crown, had been kept up to overawe the people (aU of them most unconstitutional and abominable usur- pations), there was no possibility of main- taining the conditions, whatever they might have been, from the want of which so much mischief is fancied to have sprung. Evils did take place, dangers did arise, the liber- ties of England were once more impaired; but these are far less to be ascribed to the actors in the Restoi-ation than to the next Pai-liament, and to the nation who chose it. I must once more request the reader to take notice that I am not here concerned with the proceedings of the Convention Parliament after the king's return to Eng- land, which, in some respects, appear to me censurable, but discussing the question whether they were guilty of any fault in not tendering bills of limitation on the pre- rogative, as preliminaiy conditions of his " was the great service that Monk did ; for as to the Restoration itself, the tide ran so strong-, that he only went into it destroiisly enongh to get much praise and great rewards." — P. 123. COMMONWKALTH.] FROM HENRY Vn. TO GEORGE II. 403 restoration to the exercise of his lawful au- thority. And it will be found, upon a re- view of what took place in that inten-egnum from their meeting together on the 25th of April, 16G0, to Charles's aiTivol in London on the 29th of May, that they were less unmindful than has been sometimes sup- posed, of provisions to secure the kingdom against the perils which had seemed to threaten it in the Restoration. On the 25th of April, the Commons met and elected Grimston, a moderate Presby- terian, as their speaker, somewhat against the secret wish of the Cavaliers, who, elat- ed by their success in the elections, were beginning to aim at superiority, and to show a jealousy of their late allies.* On the same day, the doors of the House of Lords were found open ; and ten peei-s, all of whom had sat in 1648, took their places as if noth- ing more than a common adjournment had passed in the inter^'al.f There was, how- ever, a veiy delicate and embarrassing ques- tion, that had been much discussed in their private meetings. The object of these, as I have mentioned, was to impose terms on the king, and maintain the Presbyterian as- cendency. But the peers of this party were far from numerous, and must be out-voted, if all the other lawful members of the House should be admitted to their privileges. Of these there were three classes : the first was of the peers who had come to their ti- tles since the commencement of the civil war, and whom there was no color of jus- tice, nor any vote of the Hoiise, to exclude. To some of these, accordingly, they caused letters to be directed ; and the others took their seats without objection on the 2Gth and 27th of April, on the latter of which days thirty-eight peers were present. t The second class was of those who had joined Charles the First, and had been ex- cluded from sitting in the House by votes of the Long Parliament. These it had been * Grimston was proposed by Pierpoint, and con- ducted to the chair by him, Mouk, and Holhs. — Jounials, Pari. Hist. The Cavaliers complained that this was done before they came into the House, and that he was partial. — Mordannt to Hyde. April 27. Clarendon State Papers, 734. t These were the Eai'ls of Manchester, Northum- berland, Lincoln, Denbigh, and Sufiblk; Lords Say, Wharton, Hunsdon, Grey, Maynard. — Lords' Jour- nals, April 23. { Clarendon State Papers, 734. Lords' Journals. in contemplation among the Presbyterian junto to keep out; but the glaring incon- sistency of such a measure with the popu- lar sentiment, and the strength that the first class had given to the Royalist interest among the aristocracy, prevented them from insisting on it. A third class consisted of those who had been created since the great seal was taken to York in 1642 ; some by the late king, others by the present in exile; and these, according to the fundamental principle of the Parliamentary side, were incapable of sitting in the House. It was probably one of the conditions on which some meant to insist, conformably to the articles of the treaty of Ne^vpolt, that the new peers should be perpetually incapable; or even that none should in future have the right of voting, without the concun'ence of both houses of Parliament. An order was made, therefore, on May 4, that no lords created since 1642 should sit. This was vacated by a subsequent resolution of May 31st. A message was sent down to the Com- mons on April 27, desiring a conference on the great affairs of the kingdom. This was the first time that word had been used for more than eleven years. But the Com- mons, in returning an answer to this mes- sage, still employed the word nation. It was determined that the conference should take placce on the ensuing Tuesday, the first of May.* In this conference, there * " It was this day (April 27) moved in the Honse of Commons to call in the king ; but it was deferred till Tuesday next by the king's friends' consent, and then it is generally believed something will be done in it. The calling in of the king is now not doubted ; but there is a party among the old secluded members that would have the treaty grounded upon the Isle of Wight propositions ; and the old lords are thought generally of that design. But it is believed the House of Commons will use the king more gently. The general hath been highly complimented by both Houses, and, without doubt, the giving the king easy or hard conditions dependeth totally upon him ; for if he ajipear for the king, the affections of the people are so high for him that no other authority can oppose him." — H. Coventrj' to Jlarquis of Onnoiid. Carte's Let- ters, ii., 328. Mordaunt confirms this. Those who moved for the king were Colonel King and Mr. Finch, both decided Cavaliers. It must have been postponed by the policy of Monk. What could Clarendon mean by saying (History of Kebellion, vii., 478) " that none had the courage, how loyal soever their wishes were, to mention his ma jestj- !" This strange way of speaking has misled Hume, 404 CONSTITUTIONAL HISTORY OP ENGLAND [Chap. X. can be no doubt that the question of further secui'ities against the power of the crown would have been discussed ; but Monk, ■whether from conviction of their inexpedi- ence or to atone for his ambiguous delay, had determined to prevent any encroach- ment on the prerogative. He caused the king's letter to the Council of State, and to the two houses of Parliament, to be deliv- ered on that veiy day. A burst of enthusi- astic joy testified their long-repressed wish- es ; and, when the conference took place, the Earl of Manchester was instructed to let the Commons know, that the Lords "do own and declai-e that, according to the an- cient and fundamental laws of this kingdom, the government is and ought to be by king. Lords, and Commons." On the same day the Commons resolved to agi'ee in this vote, and appointed a committee to report what pretended acts and ordinances were incon- sistent with it* It is, however, so far fi'om being ti'ue that this convention gave itself up to a blind con- fidence in the king, that their journals dur- ing the month of May bear witness to a considerable activity in furthering provisions which the circumstances appeared to re- quire. They appointed a committee, on May 3d, to consider of the king's letter and declaration, both holding forth, it will be re- membered, all promises of indeiunity, and every thing that could tranquilize appre- hension, and to propose bills accordingly, especially for taking away military tenures. One bill was brought into the House, to se- cure lands purchased from the trustees of the late Pai-liament ; another, to establish ministers already settled in benefices ; a third, for a general indemnity ; a fourth, to take away tenures in chivaliy and ward- ship ; a fifth, to make void all grants of honor or estate, made by the late or present king since May, 1642. Finally, on the very 29th of May, we find a bill read twice and committed, for the confirmation of privOege of Parliament, Magna Charta, the Petition of Right, and other great constitutional stat- utes, f These measures, though some of them were never completed, proved that the restoration was not carried foi-ward with who copies it. The king was as generally talked of as if he were on the throne. * Lords' and Commons' Journals, Pari. Hist., iv., 24. t Commons' Jounials. so thoughtless a precipitancy and neglect of liberty as has been asserted. There was undoubtedly one very import- ant matter of past controversy, ' except in re- which they may seem to have spectofthe avoided, the power over the mi- litia. They silently gave up that moment- ous question. Yet it was become, in a practical sense, incomparably more import- ant that the representatives of the Com- mons should retain a control over the land forces of the nation than it had been at the commencement of the controversy. War and usurpation had sown the dragon's teeth in our fields ; and, instead of the peaceable trained bands of former ages, the citizen soldiers who could not be marched beyond their counties, we had a veteran army ac- customed to ti'ead upon the civil authority at the bidding of their superiors, and used alike to govern and obey. It seemed pro- digiously dangerous to give up this weapon into the hands of our new sovereign. The experience of other countries as well as our own demonstrated that the public fiberty could never be secure if a large standing army should be kept on foot, or any stand- ing army without consent of Parfiament. But this salutary restriction the Convention Parliament did not think fit to propose; and in this respect I ceitainly consider them as having stopped short of adequate security. It is probable that the necessity of humor- ing Monk, whom it was their first vote to constitute general of all the forces in the three kingdoms,* with the hope, which proved not vain, that the king himself would disband the present army, whereon he could so Httle rely, prevented any endeavor to es- tablish the control of Parfiament over the mifitary power till it was too late to wnth- stand the violence of the Cavafiers, who considered the absolute prerogative of the crown in that point the most fundamental article of their creed. Of Monk himself it may, I think, be said that, if his conduct in this revolu- conduct of tion WEis not that of a high-mind- ed patriot, it did not desen e all the reproach * Lords' Journals, May 2. Upon the same day, the House went into consideration how to settle the militia of this kingdom. A committee of twelve lords was appointed for this purpose, and the Com- mons were requested to appoint a proportionate number to join therein ; but no bill was brought in till after the kins^s return. Cha. II.— 1660-73.] rilOM HENRY VII. TO GEORGE II. 405 that has been so frequently thrown on it. No one can, without forfeiting all preten- sions to have his own word believed, excuse his incomparable deceit and perjury; a mas- ter-piece, no doubt, as it ought to be I'cck- oned by those who set at naught the obliga- tions of veracity in public transactions, of that wisdom which is not from above ; but, in seconding the public wish for the king's restoration, a step which few, perhaps, can be so much in love with fanatical and tyran- nous usurpation as to condemn, lio seems to have used what influence he possessed, an influence by no means commanding, to render the new settlement as little injuri- ous as possible to public and private inter- ests. If he frustrated the scheme of throw- ing the executive authority into the hands of a Presbyterian oligarchy, I, for one, can see no great cause for censure ; nor is it quite reasonable to expect that a soldier of fortune, inured to the exercise of arbitrary power, and exemj)t from the prevailing re- ligious fanaticism ^vhich must be felt or de- spised, .should have partaken a fervent zeal I for liberty, as little congenial to his temper- ament as it was to his profession. He cer- tainly did not satisfy the king even in his first promises of support, when he advised an absolute indemnity, and the preservation of actual interests in the lands of the crown and Church. In the first debates on the Bill of Indemnity, when the case of the regicides came into discussion, he pressed for the smallest number of exceptions from pardon ; and though his conduct after the king's return displayed his accustomed pru- dence, it is evident that, if he had retained great influence in the council, which he as- suredly did not, he would have maintained as much as possible of the existing settle- ment in the Church. The deepest stain on his memoiy is the production of Argyle's private letters on his trial in Scotland ; nor, indeed, can Monk be regarded, upon the whole, as an estimable man, though his pru- dence and success may entitle him, in the common acceptation of the word, to be reck- oned a great one. CHAPTER XI. FROM THE RESTORATION OP CHARLES THE SECOND CABAL ADMINISTRATION. Popular Joy at the Restoration. — Proceedings of alitiou the Convention Parliament. — Act of Indemnity. — Exclusion of the Regicides and Others. — Discussions hetween the Houses on it. — Exe- cution of Regicides. — Restitution of Crown and Church Lands. — Discontent of the Royalists. — Settlement of the Revenue. — Aholition of Mili- tary Tenures. — Excise granted instead. — Army disbanded. — Clergy restored to their Benefices. — Hopes of the Presbyterians from the King. — Projects for a Compromise. — King's Declaration in Favor of it. — Convention Parliament dissolv- ed.— Different Complexion of the next. — Con- demnation of Vane. — Its Injustice. — Acts re- placing the Crown in its Prerogatives. — Coi"po- ration Act. — Repeal of Triennial Act. — Star Chamher not restored. — Presbyterians deceived by the King. — Savoy Conference. — Act of Uui- formit}-. — Ejection of Non-confonnist Clergy. — Hopes of the Catholics. — Bias of the King to- ward them. — Resisted by Clarendon and the parliament. — Declaration for Indulgence. — Ob- jected to by the Commons. — Act against Con- venticles.— Another of the same Kind. — ^ Re- marks on them. — Dissatisfaction increases. — Private Life of the King. — Opposition in Par- liament.— Appropriation of Supplies. — Commis- sion of Public Accounts. — Decline of Claren- don's Power. — Loss of the King's Favor. — Co- TO THE FALL OP THE ainst him. — His Impeachment — Some Articles of it not unfounded. — Illegal Imprison- ments.— Sale of Dunkirk. — Solicitation of French Money. — His Faults as a Minister. — His pusil- lanimous Fhght, and conseijuent Banishment. — Cabal Ministiy. — Scheme of Com]n-ehension and Indulgence. — Triple Alliance. — Intrigue with France. — King's Desire to be absolute. — Secret Treaty of 1670. — Its Objects. — Differences be- tween Charles and Louis as to the Mode of its Execution. — Fresh Severities against Dissent- ers.— Dutch War. — Declaration of Indulgence. — Opposed by Parliament, and withdrawn. — Test Act. — Fall of Shaftesbury and his Col- leagues. It is universally acknowledged that no measure was ever more national, „ , _ ^ Popular joy or has ever produced more testi- at the Res- monies of public approbation, than the restoration of Charles II. Nor can this be attributed to the usual fickleness of the multitude ; for the late government, whether under the Parliament or the Pro- tector, had never obtained the sanction of popular consent, nor could have subsisted for a day without the support of the army. 406 CONSTITUTIONAL HISTOBY OF ENGLAND [Chap. XI, The king's return seemed to the people the harbinger of a real liberty, instead of that bastard Commonwealth which had insulted them with its name; a liberty secure from enormous assessments, which, even when lawfully imposed, the English had always paid with reluctance, and from the insolent despotism of the soldiery. The young and lively looked forward to a release from the rigors of fanaticism, and were too ready to exchange that hypocritical austerity of the late times for a licentiousness and impiety that became characteristic of the present. In this tumult of exulting hope and joy, there was much to excite anxious forebod- ings in calmer men ; and it was by no means safe to pronounce that a change so general- ly demanded, and in most respects so expe- dient, could be effected without veiy seri- ous sacrifices of public and particular inter- ests. Four subjects of great importance, and Proceedings Some of them very difficult, occu- "entionPar- P'*"^ ^^^^ Convention Parliament liament. from the time of the king's return till their dissolution in the following Decem- ber : a general indemnity and legal oblivion of all that had been done amiss in the late interruption of government ; an adjustment of the claims for reparation which the crown, the church, and private Royalists had to prefer; a provision for the king's revenue, consistent with the abolition of military tenures ; and the settlement of the Church. These were, in effect, the arti- cles of a sort of treaty between the king and the nation, without some legislative provi- sions as to which, no stable or tranquil course of law could be expected. The king, in his well-known declaration Act of la- from Breda, dated the 14th of April, demity. had laid down, as it were, certain bases of his restoration, as to some points which he knew to excite much apprehen- sion in England. One of these was a free and general pardon to all his subjects, sav- ing only such as should be excepted by Par- liament. It had always been the king's ex- pectation, or at least that of his chancellor, that all who had been immediately concern- ed in his father's death should be delivered up _ , . , to punishment ;* and, in the most Exclusion of /. ,.,. the regicides unpropitious State 01 his fortune, and others, ^jjjjg making all professions of * Life of Clarendon, p. 69. pardon and favor to different parties, he had constantly excepted the regicides.* Monk, however, had advised, in his first messages to the king, that none, or, at most, not above four, should be excepted on this ac- count ;f and the Commons voted that not more than seven persons should lose the benefit of the Indemnity, both as to life and estate ;t yet, after having named seven of the late king's judges, they proceeded in a few days to add several more, who had been conceraed in managing his trial, or other- wise forward in promoting his death. § They went on to pitch upon twenty per- sons, whom, on account of their deep con- cern in the transactions of the last tvvelve years, they determined to affect with pen- alties, not extending to death, and to be de- termined by some future act of Parlia- ment. || As their passions gi'ew warmer, * Clar. State Papers, iii., 427, 529. In fact, very few of them were likely to be of use ; and the ex- ception made his general offers appear more sincere. t Clar., Hist, of Rebellion, \-ii., 447. Ludlow says that Fairfax and Northumherland were posi- tively ag:ainst the punishment of the regicides, voL iii., p. 10; and that Monk vehemently declared at first against any exceptions, and afterward pre- vailed on the House to limit them to seven, p. 16. Though Ludlow was not in England, this seems very probahle. and is confirmed by other authorities i as to Monk. Fairfax, who had sat one day himself on the king's trial, could hardly, with decency, cou- cur in the punishment of those who went on. { Journals, May 14. 5 June 5, 6, 7. The first seven were Scott, Holland, Lisle, Barkstead, Harrison, Say, Jones. They went on to add Coke, Broughton, Dendy. II These were Lenthall, Vane, Burton, Kehle, St. John, Ireton, Hazlerig, Sydenham, Desborough, Axtell, Lambert, Pack, Blackwell, Fleetwood, Pyne, Dean, Creed, Nj e, Goodwin, and Cobbet; some of them rather insignificant names. Upon the words that " twenty and no more " he so except- ed, two divisions took place, 160 to 131, and 153 to 135 ; the Presbyterians being the majority, June 8- Two other divisions took place on the names of Lenthall, carried by 215 to 126, and of Whitelock, lost by 175 to 134. Another motion was made af- terward against Whitelock by PrjTme. Milton was ordered to be prosecuted separately from the twen- ty ; so that they already broke their resolution. He was put in custody of the sergeant-at-arms, and released, December 17. Andrew Mani-ell, his friend, soon afterward complained that fees to the amount of £50 had been extorted from him; but Finch answered that Milton had been Cromwell's secretarj-, and deser\-ed hanging. — Pari. Hist., p. 162. Lenthall had taken some share in the Res- toration, and entered into correspondence with the king's advisers a httle before.— Clar. State Papers, iii., 711, 720. Kennet's Register, 762. But the Cha. n.— 1660-73.] FROM HENRY VII. TO GEORGE 11 407 aud the wishes of the court became better kuown, they came to except from all bene- fit of the Indemnity such of the king's judges as had not rendered themselves to justice according to the late proclamation.* In this state the Bill of Indemnity and Obliv- ion was sent up to the Lords. f But in that House the old Royalists liad a more deci- sive preponderance than among the Com- mons. They voted to except all who had signed the death-waiTant against Charles the First, or sat when sentence was pro- nounced, and five others by name, Hack- er, Vane, Lambert, Hazlerig, and Axtell. They sti'uck out, on the other hand, the clause reserving Lenthall and the rest of the same class for future penalties. They made other alterations in the bill to render it more severe ;t and with these, after a pretty long delay, and a positive message from the king, requesting them to hasten their proceedings (an irregularitj' to which they took no exception, and which in the eyes of the nation was justified by the cir- cumstances), they returned the bill to the Commons. The vindictive spirit displayed by the Upper House was not agreeable to the bet- ter temper of the Commons, where the Presbyterian or moderate party retained great influence. Though the king's judges (such, at least, as had signed the death-war- rant) were equally guilty, it was consonant to the practice of all humane governments to make a selection for capital penalties ; and to put forty or fiftj^ persons to death for that offense seemed a veiy sanguinary course of proceeding, and not likely to pro- mote the conciliation and oblivion so much cried up. But there was a yet sti'onger Royalists never could forgive his having put the question to the vote on the ordiuauce for trying the late king. * June .30. This was carried without a division. Eleven were afterward excepted by name, as not having rendered themselves, July 9. t July 11. t The worst and most odious of their proceed- ings, quite unworthy of a Christian and civilized assembly, was to give the next relations of the four peers who had been executed under the Com- monwealth, Hamilton, Holland, Capel, and Derby, the privilege of naming each one person (among the regicides) to be executed. This was done in the last three instances ; but Lord Denbigh, as Hamilton's kinsman, nominated one who was dead ; and, on this being pointed out to him. refused to fix on another. — Journal, Aug. 7. Ludlow, iii., 34. objection to this severity. The king had published a proclamation, in a few days af- ter his landing, commanding his father's judges to render themselves up within fourteen days, on pain of being excepted from any pardon or indemnity, either as to their hves or estates. Many had volun- tarily come in, having put an obvious con- struction on this proclamation. It seems to admit of little question, that the king's faith was pledged to those persons, and that no advantage could be taken of any ambigui- ty in the proclamation, without as real per- fidiousness as if the words had been more express. They were at least entitled to be set at liberty, and to have a i-easonable time allowed for making their escape, if it were determined to exclude them from the Indemnity.* The Commons were more mindful of the king's honor and t,. ^ ° Discussions their own than his nearest advis- between the ers.f But the violent RoyaUsts "<"^=«°">'- were gaining ground among them, and it ended in a compromise. They left Hacker and Axtell, who had been prominently con- cerned iu the king's death, to their fate. They even admitted the exceptions of Vane and Lambert; contenting themselves with a joint address of both Houses to the king, that, if they should be attainted, execution * Lord Southampton, according to Ludlow, ac- tually moved this iu the House of Lords, but was opposed by Finch, iii., 43. t Clarendon uses some shameful chicanery about this — Life, p. 69 ; and with that inaccuracy, to say the least, so habitual to him, says, " the Parliament had published a proclamation, that all who did not render themselves by a day named, should be judged as guilty, and attainted of treason." The proclamation was published by the king, on the suggestion, indeed, of the Lords and Commons, and the expressions were what I have stated in the text. — State Trials, v., 959. Somers Tracts, vii., 437. It is obvious that by this misrepresenta- tion he not only throws the blame of ill faith off the king's shoulders, but puts the case of those who obeyed the proclamation on a very different footing. The king, it seems, had always expected that none of the regicides should be spared. But why did he publish such a pi'oclamatiou ? Clarendon, howev- er, seems to have been against the other exceptions from the Bill of Indemnity, as contraiy to some ex- pressions in the declaration from Breda, which had been inserted by Monk's advice ; and thus wisely and honorably got rid of the twenty exceptions, which had been sent up from the Commons, p. 133. The Lower House resolved to agree with the Lords as to those twenty persons, or, rather, sixteen of them, by 197 to 102, Hollis aud Morrice telling the ayes. 408 COXSTITUTIONAL HISTORY OF ENGLAND [Chap. XL as to their lives might be remitted. Ha- zlerig was saved on a division of 141 to 116, partly through the intercession of Monk, who had pledged his word to him. Most of the king's judges were entirely excepted; but with a proviso in favor of such as had surrendered according to the proclamation, that the sentence should not be executed without a special act of Parliament.* Oth- ers were reserved for penalties not extend- ing to life, to be inflicted by a future act. About twenty enumerated persons, as well as those who had pronounced sentence of death in any of the late illegal high courts of justice, were rendered incapable of any civil or military office. Thus, after three months' delay, which had given room to disti'ust the boasted clemency and forgive- ness of the victorious Royalists, the Act of Indemnity was finally passed. Ten persons suffered death soon after- Execution of ward for the murder of Charles regicides. the First, and three more who had been seized in Holland, after a consid- erable lapse of time.f There can be no reasonable gi'ound for censuring either the king or the Parliament for their punish- ment, except that Hugh Peters, though a very odious fanatic, was not so directly im- plicated in the king's death as many who escaped ; and the execution of Scrope, who had surrendered under the proclamation, was an inexcusable breach of faith. t But * Stat. 12 Car. IL, c. 11. t These were, in the first instance, Harrison, Scott, Scrope, Jones, Clement, Carew, all of whom had signed the warrant, Cook, the solicitor at the High Court of Justice, Hacker and Axtell, who commanded the guard on that occasion, and Peters. Two years afterward, Downing, ambassador in Holland, prevailed on the States to give up Bark- stead, Corbet, and Okey. They all died with great constancy, and an enthusiastic persuasion of the righteousness of their cause. — State Trials. Pepys says in his Diarj-, Oct. 13th, 1660, of Harri- son, whose execution he witnessed, " that he looked as cheerful as any man could do in that condition." X It is remarkable that Scrope had been so par- ticularly favored by the Convention Parliament as to be exempted, together with Hutchinson and Lascelles, from any penalty or forfeiture by special resolution, June 9. But the Lords put in bis name again, though they pointedly excepted Hutchinson ; and the Commons, after first resolving that he should only pay a fine of one year's value of bis estate, came at last to agree in excepting him from the Indemnit)' as to life. It appears that some private convei-sation of Scrope had been betrayed, wherein he spoke of the king's death as he thought. nothing can be more sophistical than to pre- tend that such men as Hollis and Annesley, who had been expelled from Parliament by the violence of the same faction who put the king to death, were not to vote for their punishment or to sit in judgment on them, because they had sided with the Commons in the civil war.* It is mentioned by many writei s, and in the Jounials, that when Mr. Lenthall, son of the late speaker, in the very first days of the Convention Parlia- ment, Avas led to say that those who had levied war against the king were as blama- ble as those who had cut ofl^ his head, he received a reprimand from the chair, which the folly and dangerous consequence of his position well deserved ; for such language, though it seems to have been used by him in extenuation of the regicides, was quite in the tone of the violent Royalists, f A question, apparently far more diflScuIt, was that of restitution and re- „ . . Restitution dress. The crown lands, those of crown and of the Church, the estates in Chu'chianOs. certain instances of eminent Royalists, had As to Hutchinson, he had certainly concurred in the Restoration, having an extreme dislike to the party who had tamed out the Parliament in Oct., 1659, especially Lambert. This may be inferred from Ms conduct, as weU as by what Ludlow says, and Kennet iu his Register, p. 169. His wife puts a speech into his month as to his share in the king's death, not absolutely justifjnng it, bat, I snspect, stronger than he ventured to use. At least, the Commons voted that he should not be excepted from the Indemnity " on account of his signal re- pentance," which could hardly be predicated of the language she ascribes to him. — Compare Mrs. Hutchinson's Memoirs, p. 367, with Commons' Journals, June 9. * Horace Walpole, in his Catalogue of Noble Au- thors, has thought fit to censure both these persons for their pretended inconsistency. The case is, however, different as to Monk and Cooper; and perhaps it may be thought that men of more deli- cate sentiments than either of these possessed would not have sat upon the trial of those with whom they had long professed to act in concert^ though innocent of their crime. t Commons' Journals, May 12, 1660. [Yet the balance of parties in the Convention Pailiament was so equal, that on a resolution that receivers and collectors of public money should be accounta- ble to the king for all moneys received bj- them since Jan. 30, 1648-9, an amendment to substitute the year 1642-3 was carried against the Presbyte- rians by 16.5 to 150. It was not designed that those who had accounted to the Parliament should actu- ally refund what they bad received, but to declare, indirectly, the illegality of the Parliamentarj' au- thority.— Commons' Journals, June 2. — 1845.] Cha. 11—1600-73.] FROM HENRY VII. TO GEORGE II. 409 been sold by the authority of the late usurp- ers ; and that not at very low rates, consid- ering the precariousness of the title. This naturally seemed a material obstacle to the restoration of ancient rights, especially in the case of ecclesiastical corporations, whom men are commonly less disposed to favor than private persons. The clergy them- selves had never expected that their estates would revert to them in full propriety, and would probably have been contented, at the moment of the king's return, to have granted easy leases to the pui'cliasei's. Nor were the House of Commons, many of whom were interested in these sales, inclined to let in the former owners without conditions. A biU was accordingly brought into the House at the beginning of the session to confirm sales, or to give indemnity to the purchas- ei"s. I do not find its provisions more par- ticularly stated. The zeal of the Royalists soon caused the crown lands to be except- ed.* But the House adhered to the princi- ple of composition as to ecclesiastical prop- erty, and kept the bill a long time in debate. At the adjournment in September, the chan- cellor told them, his majesty had thought much upon the business, and done much for the accommodation of many particular per- sons, and doubted not but that, before they met again, a good progress would be made, so that the persons concerned would be much to blame if they received not full sat- isfaction ; promising, also, to advise with some of the commons as to that settlement, f These expressions indicate a design to take the matter out of the hands of Parliament; for it was Hyde's firm resolution to replace the Church in tlie whole of its property, without any other regard to the actual pos- sessors than the right owners should sever- ally think it equitable to display : and this, as may be supposed, proved very small. No further steps were taken on the meet- ing of Parliament after the adjournment ; and by the dissolution the parties were left to the common course of law. The Church, the crown, the dispossessed Royalists, re- entered triumphantly on their lands ; there were no means of repelling the owners' claim, nor any satisfaction to be looked for by the purchasers under so defective a title. It must be owned that the facility with which tliis was accomplished is a striking testimo- * Pari. Hist., iv., 80. t Ibid., iv., 129. ny to the strength of the new government, and the concurrence of the nation. This is the more remarkable, if it be true, as Lud- low informs us, that the chapter lands had been sold by the trustees appointed by Par- liament at the clear income of fifteen or sev- enteen years' purchase.* The great body, however, of the suflTer- ing Cavaliers, who had compound- ^ , * Discontent ed for their delinquency luider the of ihe Roy- ordinances of the Long Parlia- ment, or whose estates had been for a time in sequestration, found no remedy for these losses by any process of law. The Act of Indemnity put a stop to any suits they might have instituted against persons concerned in cariying these illegal ordinances into execu- tion. They were compelled to put up with their poverty, having the additional mortifi- cation of seeing one class, namely, the cler- gy, who had been engaged in the same cause, not alike in their fortune, and many even of the vanquished Republicans undis- turbed in wealth which, directly or indirect- ly, they deemed acquired at their own ex- pense.f They called the statute an act of indemnity for the king's enemies, and of ob- livion for his friends. They murmured at the ingratitude of Charles, as if he were bound to forfeit his honor and risk his throne for their sakes. They conceived a deep hatred of Clarendon, whose steady adhe- I'ence to the great principles of the Act of * Memoirs, p. 229 It appears by some passa- ges in the Clarendon Papers that the Church had not expected to come off so brilliantly ; and, while the Restoration was yet unsettled, would have been content to give leases of their lands. — P. 620, 723. Hyde, however, was convinced that the Church would be either totally ruined, or restored to a great lustre ; and herein he was right, as it turned out— P. GU. t Life of Clarendon, 99. L'Estrans-e, in a pam- phlet printed before the end of IGUO, complains tiiat the Cavaliers were neglected, the king betrayed, the creatures of Cromwell, Bradshaw, and St. John laden with offices and honors. Of the Indemnity he says, " That act made the enemies to the Con- stitution masters in effect of the booty of three na- tions, bating the crown and church lands, all which they might now call their own, while those w'ho stood up for the laws wei'e abandoned to the com- fort of an irreparable but honorable inin." He re- viles the Presbyterian ministers still in possession, and tells the king that misplaced lenity was his father's ruin. — Kennet's Register, p. 233. See, too, in Somers Tracts, vii., 517, " The Humble Repre- sentation of the Sad Condition of the King's Par ty." Also, p. 557. 410 CONSTITUTIONAL HISTORY OF ENGLAND [Chxt. XL Indemnity is the most honorable act of his public life. And the discontent engendered by their disappointed hopes led to some part of the opposition jifterward experienc- ed by the king, and still more certainly to the coalition against the ministei". No one cause had so eminently contribu- o ..1 . ted to the dissensions between the settlement of the rev- ci'own and Parliament in the two last reigns, as the disproportion be- tween the public revenues under a rapidly increasing depreciation in the value of mon- ey, and the exigencies, at least on some oc- casions, of the administration. Thei'e could be no apology for the parsimonious reluct- ance of the Commons to gi'ant supplies, except the constitutional necessity of ren- dering them the condition of redress of gi-ievances ; and in the present circumstan- ces, satisfied, as they seemed at least to be, with the securities they had obtained, and enamored of their new sovereign, it was reasonable to make some further provision for the current expenditure. Yet this was to be meted out with such prudence as not to place him beyond the necessity of fre- quent recurrence to their aid. A commit- tee was accordingly appointed "to consider of settling such a revenue on his majesty as may maintain the splendor and grandeur of his kingly office, and preserve the crown from want, and from being undervalued by his neighboi's." By their repoi-t it appear- ed that the revenue of Charles I. from 1637 to 1641 had amounted on an average to about 6e90(),000, of which full ^£200,000 arose from sources either not warranted by law or no longer available.* The House re- solved to raise the present king's income to c€l,200,000 per annum; a sum perhaps suf- ficient in those times for the ordinary charg- es of government. But the funds assigned to produce his revenue soon fell short of the Parliament's calculation. f " [Commons' Journals, Sept. 4, 1660 ; which I quote from "Letter to the Rev. T. Carte" (in 1749), p. 44. This seems to have been exclusive of ship-money.] — 1845. t Commons' Journals, September 4, 1660. Sir Philip Warwick, cliaucellor of the Exchequer, as- sured Pepys that the revenue fell short by a fourth of the £1,200,000 voted by Parliament.— See his Di- ary, March 1, 1664. Ralph, however, says, the in- come in 1662 was £1,120,593, though the expend- iture was £1,439,000.— P. 88. It appears probable that the hereditary excise did not yet produce much beyond its estimate. — Id., p. 20. One ancient fountain that had poured its stream into the royal treasury it ^^^y^^-^^ was now determined to close up military ten- forever. The feudal tenures had dse'^anted brought with ihem at the Con- '"^''-a'^- quest, or not long after, those incidents, as they were usually called, or emoluments of seigniory, which remained after the militaiy character of fiefs had been nearly effaced, es|)ecially the right of detaining the estates of minors holding in chivalry, without ac- counting for the profits. This galling bur- den, incomparably more ruinous to the ten- ant than beneficial to the lord, it had long been determined to remove. Charles, at the treaty of Newport, had consented to give it up for a fixed revenue of .£100,000 ; and this was almost the only part of that in- effectual compact which the present Parlia- ment were anxious to complete. The king, though likely to lose much pati-onage and in- fluence, and what passed w ith lawyers for a high attribute of his prerogative, could not decently refuse a commutation so evidently advantageous to the aristocracy. No great difference of opinion subsisting as to the ex- pediency of taking away military tenures, it remained only to decide from what re- sources the commutation revenue should spring. Two schemes were suggested : the one, a permanent tax on lands held in chivalry (which, as distinguished from those in socage, were alone liable to the feudal burdens) ; the other, an excise on beer and some other liquors. It is evident that the former was founded on a just principle, while the latter transferred a particular burden to the community. But the self-interest which so unhappily predominates even in repre- sentative assemblies, with the aid of the courtiers, who knew that an excise increas- ing with the riches of the country was far more desirable for the crown than a fixed land-tax, caused the former to be carried, though by the very small majority of two voices.* Yet even thus, if the impoverish- ment of the gently, and dilapidation of their estates through the detestable abuses of wai'dship, was, as can not be doubted, very- mischievous to the inferior classes, the whole * Nov. 21, 1660, 151 to 149. Pari. Hist. [It is to be observed, as some excuse of the Commons, that the hereditary excise thus granted was one moiety of what already was paid, by virtue of or- dinances imder the Commonwealth.] — 1845. Cha. II.— ]660-73.] FROM HENRY VII. TO GEORGE II. 411 community must be reckoned gainers by the arrangement, though it might have been conducted in a more equitable manner. The statute 12 Car. II., c. 24, takes away the Court of Wards, with all wardships and foi'feitures for marriage by reason of tenure, all primer seisins, and fines for alienation, aids, escuages, homages, and tenures by chivalry without exception, save the honor- ary services of grand sergeantry ; convert- ing all such tenures into common socage. The same statute abolishes tliose famous rights of purveyance and pre-emption, the fruitful theme of so many complaining Par- liaments ; and this relief of the people from a general burden may seiTe in some meas- ure as an apology for the imposition of the excise. This act may be said to have wrought an important change in the spirit of our Constitution, by reducing what is emphatically called the prerogative of the crown, and which, by its practical exhibition in these two vexatious exercises of power, wardship and purveyance, kept up in the minds of the people a more distinct percep- tion, as well as more awe, of the monarchy than could be felt in later periods, when it has become, as it were, merged in the com- mon course of law, and blended with the very complex mechanism of our institutions. This great innovation, however, is properly to be refeired to the revolution of 1G41, which put an end to the Court of Star Chamber, and suspended the feudal superi- orities. Hence, with all the misconduct of the last two Stuarts, and all the tendency toward arbitrary power that their govern- ment often displayed, we must perceive that the Constitution had put on, in a very great degree, its modern character during that period ; the boundaries of prerogative were better understood; its pretensions, at least in public, were less enormous; and not so many violent and oppressive, cer- tainly not so many illegal, acts were com- mitted toward individuals as under the first two of their family. In fixing upon 661,200,000 as a competent Army dis- revenue for the crown, the Com- banded. mons tacitly gave it to be under- stood that a regular militaiy force was not among the necessities for which they meant to provide. They looked upon the army, notwithstanding its j-ecent services, with that apprehension and jealousy which be- came an English House of Commons. They were still suppoiting it by monthly assessments of d£70,000, and could gain no re- lief by the king's restoration till that charge came to an end. A bill, therefore, was sent up to the Lords before their adjournment in September, providing money for disband- ing the land forces. This was done during the recess ; the soldiers received their ar- rears with many fair words of praise, and the nation saw itself, with delight and thank- fulness to the king, released from its heavy burdens and the dread of servitude.* Yet Charles had too much knowledge of foreign countries, where monarchy flourished in all its plenitude of sovereign power under the guardian sword of a standing amiy, to part readily with so favorite an instriunent of kings. Some of his counselors, and espec- ially the Duke of York, dissuaded him from disbanding the army, or at least advised his supplying its place by another. The un- settled state of the kingdom after so mo- mentous a revolution, the dangerous audac- ity of the fanatical party, whose enterprises were the more to be guai'ded against, be- cause they were founded on no such calcu- lation as reasonable men would form, and of which the insurrection of Venner in No- vember, 1G60, furnished an example, did undoubtedly appear a very plausible excuse for something more of a military protection to the government than yeomen of the guard and gentlemen pensioners. General Monk's regiment, called the Coldstream, and one other of horse, were accordingly retained by the king in his service ; anotlier was formed out of the troops brought from Dun- kirk ; and thus began, under the name of guards, the present regular army of Great Britain. f In 1662 these amounted to about 5000 men ; a petty force according to our present notions, or to the practice of other European monarchies in that age, yet suffi- cient to establish an alarming precedent, and to open a new source of contention be- tween the supporters of power and those of freedom. So little essential innovation had been ef- * The troops disbanded were fourteen regiments of horse and eighteen of foot in England: one of horse and four of foot in Scotland, besides garri- sons.— Jounials, Nov. 7. t Ralph, 35. Life of James, 447. Grose's Mil- itary Antiquities, i., 61. 412 CONSTITUTIONAL HISTORY OF ENGLAND [Chap. XI. fected by twenty years' inteiTuption of the regular government in the common law or course of judicial proceedings, that, when the king and House of Lords were restored to their places, little more seemed to be req- uisite than a change of names. But what was true of the state could not be applied to the Churcli. The revolution there had gone much further, and the questions of res- toration and compromise were far more dif- ficult. It will be remembered that such of the Clergy re- clergy as Steadily adhered to the the'ir'^blne- Episcopal constitution had been ficcs. expelled from tlieir benefices by the Long Pai'liament under various pre- texts, and chiefly for refusing to take the Covenant. The new establishment was nominally Presbyterian. But the Presby- terian discipline and synodical government were veiy paitially introduced ; and, upon the whole, the Church, during the suspen- sion of the ancient laws, was rather an as- semblage of congregations than a compact body, having little more unity than resulted from their common dependency on the tem- poral raagisti-ate. In the time of Cromwell, who favored the Independent sectaries, some of that denomination obtained livings; but very few, I believe, com])aratively, who had not received either Episcopal or Pres- byterian ordination. The right of private patronage to benefices, and that of tithes, though continuaUy menaced by the more violent party, subsisted without alteration. Meanwhile, the Episcopal ministers, though excluded from legal toleration along with papists, by the Insti'ument of Government under which Cromwell professed to hold his power, obtained, in general, a sufificient indulgence for the exercise of their func- tion.* Once, indeed, on discovery of the Royalist conspiracy in 1C55, he published a severe ordinance, forbidding every ejected minister or fellow of a college to act as do- mestic chaplain or schoolmaster. But this was coupled with a promise to show as much tenderness as might consist with the safety of the nation toward such of the said persons as should give testimony of tlieir good affection to the government ; and, in point of fact, this ordinance was so far from being rigorously observed, that Episcopali- an conventicles were openly kept in Lon- " ^Neal, 429, 444. don.* Cromwell was of a really tolerant disposition, and there had, perhaps, on the whole, been no period of equal duration wherein the Catholics themselves suffered so little molestation as under the Protector- ate.! It is well known that he permitted the settlement of Jews in England, after an exclusion of nearly three centuries, in spite of the denunciations of some bigoted churchmen and lawyers. The Presbyterian clergy, though co-op- erating in the king's restoration, ? . . Hopes of the experienced veiy just apprehen- Presbyterians sions of the church they had sup- f™"' planted ; and this was, in fact, one great mo- tive of the resti-ictions that party was so anxious to impose on him. His character and sentiments were yet veiy imperfectly known in E ngland ; and much pains were taken on both sides, by shoit pamphlets, panegj'rical or defamatory, to represent him as the best Englishman and best Protestant of the age, or as one given up to profligacy and popery .J The caricature likeness was, ■* Keal, 471. Pepy's Diary, ad init. Even in Oxford, about 300 Episcopalians used to meet ev- ery Sauday -n-ith the connivance of Dr. Owen, dean of Christ Chmch.— Omie's Life of Owen, 188. It is somewhat bold in Anglican writers to complain, as they now and then do, of the persecution they suffered at this period, when we consider what had been the conduct of the bishops before, and what it was afterward. I do not know that any member of the Church of England was imprisoned under the Commonwealth, except for some politi- cal reason ; certain it is that the jails were not filled with them. t The penal laws were comparatively dormant, though two priests suffered death, one of them be- fore the Protectorate. — Butler's Mem. of Catholics, ii., 13. But in 1655 Cromwell issued a proclama- tion for the execution of these statutes, which seems to have been provoked by the prosecution of the Vaudois. Whitelock tells us he opposed it, 625. It was not acted upon. t Several of these appear in Somers Tracts, vol. vii. The king's nearest friends were of course not backward in praising him, though a little at the expense of their consciences. "In a word," says Hyde to a con'espondent in 1659, " if being the best Protestant and the best Englishman of the nation can do the king good at home, he must prosper with and by his own subjects." — Clar. State Papers, 541. Morley says he had been to see Judge Hale, who asked him questions about the king's charac- ter and finnness in the Protestant religion. — Id., 736. Morley's exertions to dispossess men of tlie notion that the king and his brother were inclined to popery, are also mentioned by Keunet in bis Register, 818 ; a book containing very copious in- fonnation as to this particular period. Yet Morley Cha. II.— lCCO-73.] FROM HENRY VII. TO GEORGE II. 413 we must now acknowledge, moi'c true than the other; but at that time it was fair and natural to dwell on the more pleasing pic- ture. The Presbyterians remembered that he was what they called a covenanted king; that is, that, for the sake of the assistance of the Scots, he had submitted to all the obligations, and taken all the oaths, they thought fit to impose.* But it was well known that, on the failure of those pros- pects, he had returned to the Church of England, and that he was suiTOunded by its zealous adherents. Charles, in his dec- laration from Breda, promised to gi-ant lib- erty of conscience, so that no man should be disquieted or called in question for dif- ferences of opinion in matters of religion which do not disturb the peace of the king- dom, and to consent to such acts of Parlia- ment as should be ofiered for him for con- firming that indulgence. But he was silent as to the Church establishment ; and the Presbyterian ministers, who went over to present the congi-atulations of their body, met with civil language, but no sort of en- couragement to expect any personal com- pliance on the king's part with their mode of worship, t The moderate party in the Convention Projects for a Parliament, though not absolute- compromise. ]y of tiie Presbyterian interest, saw the danger of permitting an oppressed body of churchmen to regain their superi- ority without some restraint. The actual could hardly have been without strong suspicions as to both of them. * He had viritten in cipher to Secretary Nicholas, from St. Johnston's, Sept. 3, IC.jO, the day of the bat- tle of Dunbar, " Nothing could have confiimed me more to the Church of England than heiug here, seeing their hyi)Ocrisy." — Supplement to Evelyn's Diarj-, 133. The whole letter shows that he was on t)ie point of giving his new friends the slip ; as, in- deed, he attempted soon after, in what was called the start. — Laing, iii., 463. t [Several letters of Sharp, then in London, are published inWodrow's " Histoiy of the Church of Scotland," whicli I quote from Kcnnct's Register. " I see clearly," he writes on June 10, " the gen- eral will not stand by the Presbyterians ; they talk of closing with moderate Episcopacy for fear of v^orse." And on June 23, ' All is wrong here as to Church affairs. Episcopacy will be settled here to the height ; their lands will be all restored. None of the Presbyterian way here oppose this, but mourn in secret." '• The generality of the people are doting after prelacy and the service-booU." He found to his cost that it was much otherwise in Bcotlaud.]— 1845. incumbents of benefices were, on the whole, a respectable and even exemplary class, most of whom could not be reckoned an- swerable for the legal defects of their title. But the ejected ministers of the Anglican Church, who had endured for their attach- ment to its discipline and to the crown so many years of poverty and privation, stood in a still more favorable light, and had an evident claim to restoration. The Com- mons accordingly, before the king's return, prepared a bill for confirming and restoring ministers ; with the twofold object of re- placing in their benefices, but without their legal right to the intermediate profits, the Episcopal clergy who by ejection or forced surrender had made way for intruders, and at the same time of establishing the posses- sion, though originally usurped, of those against whom there was no claimant living to dispute it, as well as of those who had been presented on legal vacancies.* This act did not pass without opposition of the Cavaliers, who panted to retaliate the per- secution that had afiflicted their Church. f This legal security, however, for the en- joyment of their livings gave no satisfaction to the scruples of conscientious men. The Episcopal discipline, the Anglican Liturgy and ceremonies, having never been abroga- * 12 Car. II., c. 17. It is quite clear that a usurped possession was confirmed by this act, where the lawful incumbent was dead; though Burnet inti- mates [that this statute not having been confirmed by the next Parliament, those who had originally come in by an unlawful title were expelled by course of law. This I am inclined to doubt, as such a proceeding would have assumed the invalidity of the laws enacted in the Convention Parliament. But we find by a case reported in 1 Veutris, tliat the judges would not suffer these acts to be dis- puted.]—1845. t Pari. Hist., 94. The chancellor, in his speech to the Houses at their adjournment in September, gave them to understand that this bill was not quite satisfactory to the court, who preferred the confinnation of ministers by particular letters patent under the great seal; that the king's prerogative of dispensing with acts of Parliament might not grow into disuse. Many got the additional security of such patents, which proved of service to them when the next Parliament did not think fit to con- firm this important statute. Baxter says, p. 241, some got letters patent to turn out the possessors, where the former incumbents were dead. These must have been to benefices in the gift of the crown; in other cases, letters patent could have been of no effect. I have found this confiiiued by the Journals, Aug. 27, 1660. 414 CONSTITUTIONAL HISTORY OF ENGLAND [Chap. XL ted by law, revived, of course, with the constitutional monarchy, and brought with them all the penalties that the Act of Uni- formity and other statutes had inflicted. The non-conforming clergy threw them- selves on the king's compassion, or gi-ati- tiide, or policy, for relief. The Independ- ents, too irreconcilable to the Established Church for any scheme of comprehension, looked only to that liberty of conscience which the king's declaration from Breda had held forth.* But the Presbyterians soothed themselves with hopes of retaining their benefices by some compromise with their adversaries. They had never, gener- ally spealdng, embraced the rigid principles of the Scottish clergy, and were willing to admit what they called a moderate Episco- pacy. They offered, accordingly, on the king's request to know their terms, a mid- dle scheme, usually denominated Bishop Usher's Model; not as altogether approv- ing it, but because they could not hope for any thing nearer to their own views. This consisted, first, in the appointment of a suf- fragan bishop for each rural deaneiy, hold- ing a monthly synod of the presbyters with- in his distiict ; and, secondly, in an annual diocesan synod of suffragans and represent- atives of the pi-esbyters, under the presi- dency of the bishop, and deciding upon all matters before them by plurality of suffra- ges, f This is, I believe, considered by most competent judges as approaching more neai-ly than om- own system to the usage of the primitive Church, which gave con- siderable influence and superiority of rank to the bishop, without desti'oying the aris- * Upon Venner's insurrection, though the secta- ries, and especially the Independents, published a declaration of their abhorrence of it, a pretest was found for issuing a proclamation to shut up the con- venticles of the Anabaptists and Quakers, and so ■worded as to reach all others. — Kennet's Register, 357. t Collier, 869, 871. Baxter, 232, 238. The bish- ops said, in their answer to the Presbyterians' proposals, that the objections against a single per- son's administration in the Church were equally ap- phcable to the state. — Collier, 872. But this was false, as they well knew, and designed only to pro- duce an effect at court ; for the objections were not grounded on reasoning, but on a presumed positive institution. Besides which, the argument cat against themselves ; for if the English Constitution, or something analogous to it, had been established in the Church, their adversaries would have had all they now asked. tocratical charactbr and co-ordinate jurisdic- tion of the ecclesiastical senate.* It less- ened, also, the inconveniences supposed to result from the great extent of some Eng- lish dioceses. But, though such a system was inconsistent with that parity which the rigid Presbyterians maintained to be indis- pensable, and those who espoused it are reckoned, in a theological division, among Episcopalians, it was, in the eyes of equal- ly rigid churchmen, little better than a dis- guised Presbytery, and a real subversion of the Anglican hierarchy. f The Presbyterian ministers, or, rather, a few eminent persons of that class, proceed- * Stillingfleet's Irenicum. King's Inquiry into the Constitution of the Primitive Church. The former work was published at this time, with a view to moderate the pretensions of the Angbcan party, to which the author belonged, by showing, 1. That there are no sufficient data for determining with certainty the form of Church-government in the apostolical age, or that which immediately fol- lowed it. 2, That, as far as we may probably c""niity. into the House of Lords, it was found not only to restore all the ceremonies and other 1 matters to which objection had been taken, : but to contain fresh clauses more intolerable I than the rest to the Presbyterian clergy. One of these enacted that not only every ! beneficed minister, but fellow of a college, ' or even schoolmaster, should declare his un- I feigned assent and consent to all and every ! thing contained in the Book of Common ; Prayer.* These words, however capable ' of being eluded and explained away, as such subscriptions always are, seemed to amount, in common use of language, to a complete approbation of an entire volume, such as a ' man of sense hardly gives to any book, and which, at a time when scrupulous persons were with gi-eat difliculty endeavoring to reconcile themselves to submission, placed a new stumbling-block in their way, which, ! without abandoning their integrity, they found it impossible to surmount. The temper of those who cliiefly managed Chui'ch affairs at this period displayed itself in another innovation tending to the same end. It had been not unusual, from the very beginnings of our Reformation, to admit ministers ordained in foreign Protestant churches to benefices in England. No re- ordination had ever been practiced with re- spect to those who had received the imposi- tion of hands in a regular church ; and hence whole matter, the changes made in the Litm-gy were more likely to disgust than to conciliate. Thus the Puritans having alwajs objected to the number of saints' days, the bishops added a few more ; and the fonner having given verj- plausible reasons against the apocrv phal lessons in the daily I service, the others inserted the legend of Bel and ' the Dragon, for no other purpose than to show con- tempt of their scruples. The alterations may be seen in Kennet's Register, 585. The most import- ant was the restoration of a rubric inserted in the communion service under Edward VI.. but left out by Elizabeth, declaring against any corporeal pres- ence in the Lord's Supper. This gave offense to some of those who bad adopted that opinion, espe- I cially the Duke of York, and perhaps tended to complete his alienation from the Anglican Church. — ' Burnet, i., 183. * 13 & 14 Car. II., c. iv., 6 3. Cha. II.— 1660-73.] FROM HENRY V: II. TO GEORGE 11. 425 it appears that the Church of England, what- ever tenets might latterly have been broached in controversy, did not consider the ordina- tion of presbytere invalid. Though such oi-- dinations as had taken place during the late ti'oubles, and by virtue of which a great part of the actual clergy were in possession, were evidently in-egular, on the supposition that the English Episcopal Church was then in existence ; yet, if the argument from such great convenience as men call necessity was to prevail, it was surely worth while to suf- fer them to pass without question for the present-, enacting provisions, if such were required, for the future. But this did not fall in with the passion and policy of the bishops, who found a pretext for their worldly motives of action in the supposed divine right and necessity of episcopal succession ; a theory naturally more agi-eeable to arrogant and dogmatical ecclesiastics than that of Cranmer, who saw no intrinsic difference between bisho])s and priests ; or of Hooker, who thought ecclesiastical superiorities, like civil, subject to variation ; or of Stillingfleet, who had lately pointed out the impossibility of ascertaining beyond doubtful conject- ure the real constitution of the apostolical Church, from the scanty, inconclusive testi- monies that either Scripture or antiquity furnish. It was therefore enacted in the Statute forUniformity, that no jierson should hold any preferment in England without hav- ing received Episcopal ordination. There seems to be little or no objection to this pro- vision, if ordination be considered as a cere- mony of admission into a particular society ; but, according to the theories which both parties had embraced in that age, it confer- red a sort of mysterious indelible character, which rendered its repetition improper.* The new Act of Uniformity succeeded to the utmost wishes of its promoters. It pro- * Life of Clarendon, 152. Buniet, 256. Morley, afterward Bishop of Winchester, was engaged just before the Restoration in negotiating with the Pres- byterians. They stuck out for the negative voice of the council of presbyters, and for the vaUdity of their ordinations. — Clar. State Papers, 727. He had two schemes to get over the difficultj-: one to pass them over sub silentio ; the other, a hypothetical reordination, on the supposition that sometliing might have been wanting before, as the Church of Home practices about rebaptization. The former is a curious expedient for those wlio pretend to think Presbyterian ordinations really null. — Id., 738. vided that eveiy minister should. Ejection of before the feast of St. Bartholo- {^;';;;^,tder- mew, 166'2, publicly declare his gy- assent and consent to every thing contained in the Book of Common Prayer, on pain of being ipso facto deprived of his benefice.* Though even the Long Parliament had re- served a fifth of the profits to those who were ejected for refusing the Covenant, no mercy could be obtained from the still greater bigotry of the present ; and a motion to make that allowance to non-conforming ministers was lost by 94 to 87. f The Lords had shown a more temperate spirit, and made several alterations of a conciliating nature. They objected to extending the subscrip- tion required by the act to schoolmasters. But the Commons urged in a conference the force of education, which made it necessary to take care for the youth. The Upper House even inserted a proviso, allowing the king to dispense with the surplice and the sign of the cross; but the Commons reso- lutely withstanding this and every other al- teration, they were all given up.J Yet next year, when it was found necessary to pass an act for the relief of those who had been prevented involuntarily from subscribing the declaration in due time, a clause was intro- * The day fixed upon suggested a comparison whicli, though severe, was obvious. A modem writer has observed on this, " They were careful not to remember that the same day, and for the same reason, because the tithes were commonly due at Michaelmas, had been appointed for the former ejectment, when four times as many of the loyal clergy were deprived for fidelity to their sov- ereign." — Southey's Hist, of the Church, ii., 467. That the day was chosen in order to deprive the incumbent of a whole year's tithes, Mr. Southey has learned from Buniet ; and it aggravates the cnielty of the proceeding : but where has he found his precedent ? The Anglican clergy were ejected for refusing the Covenant at no one definite period, as, on recollection, Mr. S. would be aware; nor can I find any one Parliamentry ordinance in Husband's Collection that mentions St. Bartholomew's Day. There was a precedent, indeed, in that case, which the govemment of Charles did not choose to fol- low. One fifth of the income had been reserved for the dispossessed incumbents ; but it is said that they often did not get them. — Kennet's Register, 392. t Journals, April 26. This ma)', perhaps, have given rise to a mistake we find in Neal, 624, that the Act of Unifoi-mity only passed by 186 to 180. There was no division at all upon the bill except that I have mentioned. t The report of the Conference, Lords' Journals, 7th of May, is altogether rather curious. 426 CONSTITUTIONAL HISTORY OF ENGLAND [Chap. XI. duced, dpcjariiij; that tlie assent and consent to the Book of Common Prayei" required by the said act should be understood only as to practice and obedience, and not otherwise. The Dnive of York and twelve lay peers pro- tested against this clause, as destructive to the Church of England as now established ; and the Commons vehemently objecting to it, the partisans of moderate councils gave way as before.* When the day of St. Bar- 1 tholomew came, about 2000 persons resigned | their preferments ratherthan stain theircon- sciences by comjjliance : an act to which the more liberal Anglicans, after the bitterness of immediate passions had passed away, have accorded that praise which is due to heroic virtue in an enemy. It may justly be said that the Episcopal clergy had set an exam- j pie of similar magnanimity in refusing to take j the Covenant ; yet, as that was partly of a j political nature, and those who were ejected for not taking it might hope to be restored [ through the success of the king's arms, I do not know that it was altogether so eminent i an act of self-devotion as the Presbyterian clergy displayed on St. Bartholomew's Day. Both of them aftbrd striking contrasts to the pliancy of the English Church in the greater question of the preceding century, and bear witness to a remarkable integrity and con- sistency of principle. t * Lords' Journals, 25th and 27th of July, 1663. Ralph, 58. t Neal, 625-636. Baxter told Bamet, as the lat- ter says, p. 185, that not above 300 would have re- signed, had the terms of the king's declaration been adhered to. The blame, he goes on, fell chiefly on Sheldon. But Clarendon was charged with entertaining the Presbyterians with good words, while he was giving way to the bishops. — See, also, p. 268. Baxter puts the number of tlie deprived at 1800 or 2000.— Life, 384. And it has generally been reckoned about 2000, though Burnet i says it has been much controverted. If indeed, we 1 can rely on Calam}''s account of the ejected minis- ters, abridged by Palmer, under the title of The Non-conformist's Memorial, the number must have been full 2400. including fellows of colleges, though not iu orders. Palmer says that a manuscript cata- logue gives 2257 names. — Kennet, however (Regis- ter, 807), notices groat mistakes of Calamy in re- spect only to one diocese, that of Peterborough. Probably both i?i this collection, aud in that of Walker on the other side, as in all niart_\Tologies, there are abundant en'ors ; but enough will veraain to afford memorable examples of conscientious suf- fering ; and we can not read without indignation Kennet's endeavors, in the conclusion of this vol- ume, to extenuate the praise of the deprived Pres- byterians by captious and unfair arguments. No one who has any sense of honesty and plain dealing can pretend that Charles did not violate the spirit of his declarations, both thatfrom Breda, and that which he published in October, 1C60. It is idle to say that those declarations were subject to the decision of Parliament, as if the crown had no sort of influence in that assembly, nor even any means of making its inclinations known. He had urged them to confirm the Act of In- demnity, wherein he thought his honor and security concerned : was it less easy to ob- tain, or at least to ask for, their concurrence iu a comprehension or toleration of the Pres- byterian clergy ? Yet, after mocking those persons with pretended favor, aud even of- fering bishoprics to some of their number, by way of purchasing their defection, the king made no effort to mitigate the provi- sions of the Act of Uniformity ; and Claren- don strenuously supported them through both houses of Parliament.* This behavior in the minister sprang from real bigotiy and dislike of the Presbyterians ; but Chai'les was influenced by a veiy different motive, which had become the secret spring of all his policy. This requires to be fully explained. Charles, during his misfortunes, had made repeated promises to the pope Uopcsofthe and the great Catholic princes of tiathoUcs. relaxing the penal laws against his subjects of that religion — promises which he well knew to be the necessary condition of their assistance ; and, though he never received any succor which could demand the per- formance of these assurances, his desire to stand well with France and Spain, as well as a sense of what was really due to the English Catholics, would have disposed him to grant every indulgence which the temper of his people should permit. The laws were highly severe, iu some cases sanguin- ary ; they were enacted in very different times, from plausible motives of distrust, which it would be now both absurd and un- gi-ateful to retain. The Catholics had been the most strenuous of the late king's adhe- rents, the greatest sufl^erers for their loyalty. Out of about 500 gentlemen who lost their lives in the roj-al cause, one third, it has been said, were of that religion. f Their * See Clarendon's feeble attempt to vindicate the king from the charge of breach of faith, 157. t A list of these, published in 1660, contains more than 170 names. — Neal, 590. Cha, II.— 1660-73.] FROM HENRY VII. TO GEORGE II. 427 estates had been selected foi" confiscation, when others had been admitted to com- pound. It is, however, certain, that after the conclusion of the war, and especialty during tlie usurpation of Cromwell, they declined, in general, to provoke a govern- ment which showed a good deal of con- nivance toward their religion, by keeping up any connection with the exiled family.* They had, as was surely very natural, one paramount object in their political conduct, the enjoyment of religious liberty; what- ever debt of gratitude they might have owed to Charles I. had been amply paid ; and per- haps thej' might reflect that he had never scrupled, in his various negotiations with the Parliament, to acquiesce in any prescriptive measures suggested against popery. This apparent abandonment, however, of the royal interests excited the displeasure of Clarendon, which was increased by a tend- ency some of the Catholics showed to unite with Lambert, who was understood to be privately of their religion, and by an intrigue earned on in 16.59, by the machinations of Buckingham with some pi-iests, to set up the Duke of York for the crown. But the king retained no resentment of the general conduct of this party, and was desirous to give them a testimony of his confidence by mitigating the penal laws against their re- ligion. Some steps were taken toward this by the House of Lords in the session of 1661; and there seems little doubt that the statutes at least inflicting capital punishment would have been repealed without difficultj', if the Catholics had not lost the favorable moment by some disunion among them- selves, which the never-ceasing intrigues of the Jesuits contrived to produce. f * Sir Kenelm Digby was (supposed to be deep in a scheme tliat the Catholics, in 1649, should sup- port the Commonwealth with all their power, in return for liberty of religion. — Carte's Letters, i., 216, et post. We find a letter from him to Crom- well in 16-56 (Thurloe, iv., 591), with great protesta- tions of duty. t See Lords' Joonials, June and July, 1661, or ex- tracts from them in Kennet's Register, 469, &c., 620, Sec, and 798, where are several other partic- ulars worthy of notice. Clarendon, 143, explains the failure of this attempt at a partial toleration (for it was only meant as to the exercise of relig- ious rites in private houses) by the persevering op- position of the Jesuits to the Oath of Allegiance, to which the lay Catholics, and generally the secular priests, had long ceased to make objection. The House had voted that the Indulgence should not There can be no sort of doubt that the king's natural facility, and exemp- ^.^^ tion from all prejudice in favor of kmj toward established laws, would have led '''^™' him to afiord every indulgence that could be demanded to his Catholic subjects, many of whom were his companions or his coun- selors, without any propensity toward their religion. But it is morally certain that, dur- ing the period of his banishment, he had imbibed, as deeply and seriously as the character of his mind would permit, a per- suasion that, if any scheme of Christianity were true, it could only be found in the bo- som of an infallible church, though he was never reconciled, according to the formal profession which she exacts, till the last hours of his life. The secret, however, of his inclinations, though disguised to the world by the appearance, and probably sometimes more than the appearance, of carelessness and infidelity, could not be wholly concealed from his court. It ap- pears the most natural mode of accounting for the sudden conversion of the Earl of Bristol to jmpeiy, which is generally agreed to have been insincere. An ambitious in- ti'iguer, holding the post of secretary of state, would not have ventured such a step without some grounds of confidence in his master's wishes, though his charticteristic precipitancy hurried him forward to desti'oy his own hopes. Nor are there wanting proofs that the Protestantism of both the brothers was greatly suspected in England before the Restoration.* These suspicions extend to Jesuits, and that they would not alter the oaths of allegiance or supremacy. The Jesuits com- plained of the distinction taken against them; and asserted, in a printed tract (Keunet, ubi supra), that since 1616 they had been inhibited by their supe- riors from maintaining the pope's right to depose sovereigns. See, also, Butler's Mem. of Catholics, ii., 27 ; iv., 142 ; and Burnet, i., 194. * The suspicions against Charles were yeiy strong in England before the Restoration, so as to alarm his emissaries: "Your master," Mordaunt writes to Onnond, Nov. 10, 1659, " is utterly ruin- ed as to his interest here in whatever party, if this be true." — Carte's Letters, ii., 264, and Clar. State Papers, iii., 602. But an anecdote related in Carte's Life of Omiond, ii., 255, and Harris's Lives, v., 54, which has obtained some credit, proves, if true, that he had embraced the Roman Catholic religion as early as 1639, so as even to attend mass. This can not be reckoned out of question ; but the tend- ency of the king's mind before his return to Eng- land is to be inferred from all his behavior. Keu- net (Complete Hist, of England, iii., 237) plainly 428 CONSTITUTIONAL HISTORY OF ENGLAND [Chap. XL acquired strength after the king's return, through his manifest intention not to marry a Protestant; and still more through the presumptuous demeanor of the opposite party, which seemed to indicate some surer gi-ounds of confidence than were yet mani- fest. The new Parliament, in its first ses- Bion, had made it penal to say that the king was a papist or popishly afl'ected, whence the prevalence of that scandal may be in- ferred.* Charles had no assistance to expect, in Resisted by his scheme of gi-anting a full tol- aildTKe'par- oration to the Roman faith, from liament. hig chief adviser, Clarendon. A repeal of the sanguinary laws ; a reasona- ble connivance ; perhaps, in some cases, a dispensation — to these favors he would have acceded ; but, in his creed of policy, the le- gal allowance of any but the established re- ligion was inconsistent with public order, and with the king's ecclesiastical preroga- tive. This was also a fixed principle with the Parliament, whose implacable resent- ment toward the sectaries had not inclined them to abate in the least of their abhor- rence and apprehension of popery. The Church of England, distinctly and exclusive- ly, was their rallying-point ; the crown it- self stood only second in their aflTections. The king, therefore, had recourse to a more subtle and indirect policy. If the terms of conformity had been so far relaxed as to suffer the continuance of the Presbyterian clergy in their benefices, there was every reason to expect from their known dispo- sition a determined hostility to all approach- es toward popery, and even to its tolera- tion. It was, therefore, the policy of those who had the interests of that cause at heart, to permit no deviation from the Act of Uni- formity, to resist all endeavors at a compre- hension of Dissenters within the pale of the Church, and to make them look up to the king for indulgence in their separate way of worship. They were to be taught that, amenable to the same laws as the Roman- ists, exposed to the oppression of the same enemies, they must act in concert foi- a com- mon benefit. f The Presbyterian ministers, disheartened at the violence of the Parlia- insinuates that the project for restoring popery be- gan at the treaty of the PjTenees ; and see his Register, p. 852. * 13 Car. XL, c. 1. t Burnet, i., 179. ment, had recourse to Charles, whose affa- bility and fair promises they were loth to distrust ; and implored his dispensation for their non-conformity. The king, naturally in-esolute, and doubtless sensible that he had made a bad return to those who had contributed so much toward his restoration, was induced, at the strong solicitation of Lord Manchester, to promise that he would issue a declaration suspending the execu- tion of the statute for three months. Clar- endon, though he had been averse to some of the rigorous clauses inserted in the Act of Uniformity, was of opinion that, once passed, it ought to be enforced without any connivance ; and told the king, likewise, that it was not in his power to preserve those who did not comply with it from depriva- tion ; yet, as the king's word had been given, he advised him rather to issue such a dec- laration than to break his promise ; but, the bishops vehemently remonstrating against it, and intimating that they would not be parties to a violation of the law, by refusing to institute a clerk presented by the patron on an avoidance for want of conformity in the incumbent, the king gave way, and re- solved to make no kind of concession. It is remarkable that the noble historian does not seem struck at the enormous and unconsti- tutional prerogative which a proclamation suspending the statute would have assum- ed.* Instead of this very objectionable meas- ure, the kins adopted one less ar- T^ , .• bitraiy, and more consonant to his for indul- own secret policy. He publish- s^""^*- ed a declaration in favor of liberty of con- science, for which no provision had been made, so as to redeem the promises he had held forth at his accession. Adverting to these, he declared that, "as in the first place he had been zealous to settle the uni- formity of the Church of England in dis- cipline, ceremony, and {government, and should ever constantly maintain it ; so as for what concerns the penalties upon those who, living peaceably, do not conform them- selves thereto, he should make it his spe- cial care, so far as in him lay, without in- * Life of Clarendon, 159. He intimates that this begot a coldness in the bishops toward himself, which was never fully removed. Yet he had no reason to complain of them on his trial. — See, too, Pepy's Diary, Sept. 3, 1662. Cha. II.— 1C60-73.] FROM HENRY VII. TO GEORGK II. 429 vading the freedom of Parliament, to incline their wisdom next approaching sessions to concur with him in making some such act for that purpose as may enable him to ex- ercise with a more universal satisfaction that power of dispensing, which he conceiv- ed to be inherent in him."* The aim of this declaration was to obtain from Parliament a mitigation, at least, of all penal statutes in matters of religion, but more to serve the interests of Catholic than of Protestant uon-conformity.f Except, however, the allusion to the dispensing power, which yet is very moderately alleg- ed, there was nothing in it, according to our present opinions, that should have created r,x. . 1 . offense. But the Commons, on Objected to by the Com- their meeting in February, 1663, moos- presented an address, denying that any obligation lay on the king by virtue of his declaration from Breda, which must be understood to depend on the advice of Parliament, and slightly intimating that he possessed no such dispensing prerogative as was suggested. They sti-ongly objected to the whole scheme of indulgence, as the means of increasing sectaries, and rather likely to occasion disturbance than to pro- mote peace. t They remonstrated, in an- other address, against the release of Cala- my, an eminent Dissenter, who, having been imprisoned for transgressing the Act of Uniformity, was irregularly set at liberty by the king's personal oi'der.§ The king, undeceived as to the disposition of this loyal assembly to concur in liis projects of relig- ious liberty, was driven to more tedious and indirect courses in order to compass his end. He had the mortification of finding that the House of Commons had imbibed, partly, "•"ParrHist., 25?: t Baxter intimates, 429, that some disagi'eement arose between the Presbyterians and Independents as to tlie toleration of popery, or rather, as he puts it, as to the active concurrence of the Protestant Dissenters in accepting such a toleration as should include popery. The latter, conformably to their general principles, were favorable to it ; but the former would not make themselves parties to any relaxation of the penal laws against the Church of Rome, leaving the king to act as he thought fit. By this stiffness it is very probable that they pro- voked a good deal of persecution from the court, which they might have avoided by falling into its views of a general indulgence. f Pari. Hist., 2C0. An adjournment bad been moved, and lost by ICl to 119. — Journals, 25th of Feb. § 19th of Feb. Baxter, p. 429. perhaps, in consequence of this declaration, that jealous apprehension of popery, which had caused so much of his father's ill for- tune. On this topic the watchfulness of an English Parliament could never be long at rest. The notorious insolence of the Romish priests, who, proud of the court's favor, disdained to respect the laws enough to disguise themselves, provoked an address to the king, that they might be sent out of the kingdom ; and bills were brought in to prevent the further growth of popery.* Meanwhile, the same remedy, so infalli- ble in the eyes of legislators, was not for- gotten to be applied to the opposite disease of Protestant dissent. Some had believed, of whom Clarendon seems to have been, that all scruples of tender conscience in the Presbyterian clergy being faction and hy- pocrisy, they would submit very quietly to the law when they found all their clamor unavailing to obtain a dispensation from it. The resignation of 2000 beneficed ministers at once, instead of extorting praise, rather inflamed the resentment of their bigoted enemies, especially Avhen they perceived that a public and perpetual toleration of sep- arate worship was favored by part of the court. Rumors of conspiracy and insurrec- * Journals, 17tb and 28th of March, 1663. Pari. Hist., 264. Burnet, 274, says the Declaration of Indulgence was usually ascribed to Bristol, hut, in fact, proceeded from the king, and that the opposi- ti^ be private, by a dissoluteness and contempt of moral opinion, which a nation, still, in the main, grave and religious, could not endure. The austere character of the last king had repressed to a considerable degree the com- mon vices of a court, which had gone to a scandalous excess under James. But the Cavaliers in general affected a profligacy of j manners, as their distinction from the fa- I natical paitj', which gained gi-ound among I those who followed the king's fortunes in ! * Pepys observes, 12th of July, 1667, "how ev- I ery body nowadays reflect upon Oliver and com- j mend him, what brave things he did, and made aU the neighbor princes fear him." I t [Clarendon, while he admits these discontents, and complaints of the decay of trade, asserts them to be unfounded. No estate could be put up to ' sale any where but a purchaser was found for it, ' vol. ii., p. 364. The main question, however, is, at what rate he would purchase. Rents, he owns, had suddenly fallen 25 per cent., which caused a clamor against taxes, presumed to be the cause of ' it. But the truth is, that wheat, which had been at a verj- hitrh price for a few years just before and after the Restoration, fell about 1663 ; and there is no doubt that the reign of Charles U. was j not favorable to the landed interest. Lady Sun- derland tells us, in a letter of 1681, that " the man- ' or of Worme-Leighton, which, when I was mar- ried [1662], was let for £3200, is now let for I £2300." — Sidney's Diary, edited by Blencowe, j 1843, vol. i.. Introduction, p. 73. On the other hand. Sir Josiah Child asserts that there were ' more men on change worth £10,000 in 1680, than there were iu 1660 worth £1000, and that a hun- dred coaches were kept for one formerly. Lands yielded twenty years' purchase, which, when he was young, were not worth above eight or ten. — See Macpherson's Annals of Commerce, ad A.D. 1660.]— 1845. Cha. II.— 1660-73.] FllOM HENRY VII. TO GEORGE II. 433 exile, and became more flagi-ant after the Restoration.* Anecdotes of comt excess- es, which i-equired not the aid of exaggera- tion, were in daily circulation through the coftee-houses ; those who cai-ed least about the vice not failing to inveigh against the scandal. It is in the nature of a limited monarchy that men should censure very freely the private lives of their princes, as 6eing more exempt from that immoral ser- vility which blinds itself to the distinctions of right and wrong in elevated rank; and as a voluptuous court will always appear prod- igal, because all expense in vice is needless, they had the mortification of believing that the public revenues were wasted on the vil- est associates of the king's debauchery. We are, however, much indebted to the memo- ry of Barbara, duchess of Cleveland, Louisa, duchess of Portsmouth, and Mrs. Eleanor Gwyn. We owe a tribute of gi-atitude to tlie Mays, the Killigrews, the Chiffinches, and the Grammonts. They played a serv- iceable part in ridding the kingdom of its besotted loyalty. They saved our forefa- thers from the Star Chamber and the High Commission Court ; they labored in their vocation against standing armies and corrup- tion ; they pressed forward the great ulti- mate security of English freedom, the ex- pulsion of the house of Stuart. f * [Life of Clarendon, p. 34. Perhaps he lays too mach the blame of this on the sectaries ; yet we may suspect that tlie enthusiastic and Antinoraian conceits of these men had relaxed the old bonds of morality, and paved the vcay for the more glaring licentiousness of the Restoration. See, too, Pepy's Diary, Aug. 31, 1660, for the rapid increase of dis- soluteness about tlie court.] — 184.5. 1 The Memoires de Grammont are known to ev- ery body, and are almost unique in their kind, not only for the grace of their style and the vivacity of their pictures, but for the happy ignorance in which the author seems to have lived, that any one of its readers could imagine that there are such things as virtue and principle in the worid. In the delir- ium of thoughtless voluptuousness they resemble some of the memoirs about the end of Louis XV. 's reign, and somewhat later; though I think, even in these, there is generally some elfort, here and there, at moral censure, or some affectation of sens- ibility. They, indeed, have always an awful mor- al ; and in the light porti'aits of the court of Ver- sailles (such, sometimes, as we might otherwise almost blush to peruse), we have before us the hand writing on the wall, the winter whiriwiud bushed in its grim repose, and expecting its prey, the vengeance of an oppressed people, and long-for- bearins Deity. No such retribution fell on the E E Among the ardent Loyalists who formed the bulk of the present P.irlia- _ Opposition ment, a certain number of a dif- in Parlia- ferent class had been returned, not sufficient of themselves to constitute a veiy effective minority, but of considerable importance as a nucleus, round which the lesser factions that circumstances should produce might be gathered. Long sessions, and a long continuance of the same Parlia- ment, have an inevitable tendency to gener- ate a systematic opposition to the measures of the crown, which it requires all vigilance and management to hinder from becoming too powerful. The sense of personal im- portance, the desire of occupation in busi- ness (a very characteristic propensity of the English gentry), the various induceznents of private passion and interest, bring forward so many active spirits, that it was, even in that age, as reasonable to expect that the ocean should always be tranquil, as that a House of Commons should continue long to do the king's bidding with any kind of una- nimity or submission. Nothing can more demonstrate the incompatibility of the Tory scheme, which would place the virtual and effective, as well as nominal, administration of the executive government in the sole hands of the crown, with the existence of a representative assembly, than the history of this Long Parliament of Charles H.* None has ever been elected in circumstan- ces so favorable for the crown, none ever brought with it such high notions of prerog- ative ; yet in this assembly a party soon grew up, and gained strength in everj' suc- cessive year, which the king could neither direct nor subdue. The methods of briberjs to which the court had largely recourse, though they certainly diverted some of the courtiers of Charles II., but they earned in their own age, what has descended to posteritj', though possibly very indifferent to themselves, the disgust and aversion of all that was respectable among mankind. * [Aubrey relates a saying of Harrington just be- fore the Restoration, which shows his sagacity. "Well! the king will come in. Let him come in and call a Parliament of the greatest Cavaliers in England, so they be men of estates, and let them sit but seven years, and they will all turn Com- monwealth's men." — Letters of Aubrey and others, from the Bodleian, vol. ii., p. 373. By Common- wealth's men he probably meant only men who would stand up for public liberty against the crovm.] —1845. 434 CONSTITUTIONAL HISTORY OF ENGLAND [Chap. XL measures, and destroyed the character of this opposition, proved, in the end, Yike those dangerous medicines which palliate the in- stant symptoms of a disease that they aggra- vate. The leaders of this Parliament were, in general, very corrupt men ; but they knew better than to quit the power which made them worth purchase. Thus the House of Commons matured and extended those rights of inquiring into and controlling the management of public affairs, which had caused so much dispute in former times ; and, as the exercise of these functions be- came more habitual, and passed with little or no open resistance from the crown, the people learned to reckon them unquestion- able or even fundamental, and were prepai-ed for that more perfect settlement of the Con- stitution on a more Republican basis, which took place after the Revolution. The reign of Charles II., though displaying some stretches of arbitraiy power, and threaten- ing a great deal more, was, in fact, the ti-an- sitional state between the ancient and mod- ern schemes of the English Constitution ; between that course of government where the executive power, so far as executive, was very little bounded except by the laws, and that where it can only be earned on, even within its own province, by the consent and co-operation, in a gi'eat measure, of the Parliament. The Commons took advantage of the pressure which the war with Hol- Appropna- ' tion of sup- land broughton the administration, P''*^' to establish two veiy important principles on the basis of their sole right of taxation. The first of these was the appro- priation of supplies to limited purposes. This, indeed, was so far from an absolute novelty, that it foimd precedents in the reigns of Richard II. and Henry IV. ; a period when the authority of the House of Commons was at a very high pitch. No subsequent instance, I believe, was on record till the year 1G24, when the last Parliament of James I., at the king's own suggestion, di- rected their supply for the relief of the Pa- latinate to be paid into the hands of commis- sioners named by themselves. There were cases of a similar nature in the year 1641, which, though of course they could no lon- ger be upheld as precedents, had accustomed tlie House to the idea that they had some- thing more to do than simply to grant money, without any security or provision for its ap- plication. In the session of 166.5, accord- ingly, an enormous supply, as it then ap- peared, of <:£l,'j50,000, after one of double that amount in the preceding year, having been voted for the Dutch war. Sir George Downing, one of the tellers of the Excheq- uer, introduced into the Subsidy Bill a pro- viso that the money raised by virtue of that act should be applicable only to the purpo- ses of the war.* Clarendon inveighed with fuiy against this, as an innovation derogato- ry to the honor of the crown ; but the king himself, having listened to some who per- suaded him that the money would be ad- vanced more easily by the bankers, in antic- ipation of the revenue, upon this better se- curity for speedy repayment, insisted that it should not be thrown out.f That supplies gi'anted by Parliament are only to be ex- pended for particular objects specified by it- self, became, from this time, an undisputed principle, recognized by frequent and at length constant practice. It drew with it the necessity of estimates regularly laid be- fore the House of Commons ; and, by ex- posing the management of the public reve- nues, has given to Parliament not only a real and effective control over an essential branch of the executive administration, but, in some measure, rendered them partakers in it.J It was a consequence of this right of ap- propriation that the House of Commons * This was carried on a division by 172 to 102. — Jounials, 25th of November, 1665. It was to be raised " in a regulated subsidiary way, reducing the same to a certainty in all counties, so as no person, for his real or personal estate, be exempted." Thej' seem to have had some difficulty in raising this vast subsidy. — Parliamentary History, 305. t 17 Car. II., c. 1. The same clause is repeated next yeai*, and has become regular. [" The bank- ers did not consist of above the number of five or six men, some whereof were aldermen, and had been lord-mayors of London, and all the rest were aldermen, or had fined for aldermen. They were a tribe that had risen and grown up in Cromwell's time, and never were heard of before the late ti-oubles, till when the whole trade of money had passed through the hands of the scriveners. They were, for the most part, goldsmiths, men known to be so rich, and of so good reputation, that all the money of the kingdom would be trusted or depos- ited in their hands." — Life of Clarendon, vol. iii., p. 7.]— 1845. t Life of Clarendon, p. 315. Hatsell's Prece- dents, iii., 80. The principle of appropriation was not can ied into full effect till after the Revolution. —Id., 179, 484. Cha. II.— 1660-73.] FROM HENRY VII. TO GEORGE II. 435 . . should be able to satisfy itself as Commission . of public to the expenditure oi their mon- accounts. -^^ jj^^ seiTices for which they were voted. But they might claim a more extensive function, as naturally derived from their power of opening and closing the pub- lic purse, that of investigating the wi.sdom, faithfulness, and economy with which their grants had been expended. For this, too, there was some show of precedents in the ancient days of Henry IV. ; but what un- doubtedly had most influence was the recol- lection that, during the late civil war, and in the times of the Commonwealth, the House had superintended, through its com- mittees, the whole receipts and issues of the national treasuiy. This had not been much practiced since the Restoration. But in the year 1666, the large cost and indifferent suc- cess of the Dutch war begetting vehement suspicions, not only of profuseness, but of diversion of the public money from its prop- er purposes, the House appointed a com- mittee to inspect the accounts of the officers of the navy, ordnance, and stores, which •were laid before them, as it appears, by the king's direction. This committee, after 8ome time, having been probably found de- ficient in poAvers, and particularly being in- competent to administer an oath, the House determined to proceed in a more novel and vigorous manner; and sent up a bill, nomi- nating commissioners to inspect the public accounts, who were to possess full powers of inquiry, and to report witli respect to such persons as they should find to have broken their trust. The immediate object of this inquiry, so far as appears from Loid Clarendon's mention of it, was rather to dis- cover whether the treasurers had not issued money without legal warrant than to enter upon the details of its expenditure. But that minister, bigoted to his Tory creed of prerogative, thought it the highest presumj)- tion for a Parliament to intermeddle with the course of government. He spoke of this bill as an encroachment and usurpation that had no limits, and pressed the king to be firm in his resolution never to consent to it.* Nor was the king less averse to a Par- liamentary commission of this natui-e, as well from a jealousy of its interference with * Life of Clarendon, p. 368. Burnet observes it was looked upon at the time as a great innovation, p. 335. his prerogative, as from a consciousness which Clarendon himself suggests, that gieat sums had been issued by his orders, which could not be put in any public ac- count ; that is (for we can give no other in- terpretation), that the moneys granted for the war, and appropriated by statute to that service, had been diverted to supply his wasteful and debauched course of pleas- ures.* It was the suspicion, or, rather, private knowledge of this criminal breach of trust, which had led to the bill in ques- tion. But such a slave was Clarendon to his narrow prepossessions, that he would rather see the dissolute excesses which he abhorred suck nourishment from that rev- enue which had been allotted to maintain the national honor and interests, and which, by its deficiencies thus aggravated, had caused even in this veiy year the navy to be laid up, and the coasts to be left defense- less, than suffer them to be restrained by the only power to which thoughtless luxuiy would submit. He opposed the bill, there- * Pepys's Diary has lately furnished some things worthy to be extracted. " Mr. W. and I by water to Whitehall, and there at Sir George Carteret's lodgings Sir William Coventry met; and we did debate the whole business of our accounts to the Parliament ; where it appears to us that the charge of the war from Sept. 1, 1664, to this Michaelmas, will have been but £3,200,000, and we have paid in that time somewhat about X2,200,000, so that we owe about £900,000: but our method of ac- counting, though it can not, I believe, be far wide from the mai-k, yet will not abide a strict examina- tion, if the Parliament should be troublesome. Here happened a pretty question of Sir William Coven- try, whether this account of ours will not put my lord-treasurer to a difficulty to tell what is become of all the money the Parliament have given in this time for the war, which hath amounted to about £4,000,000, which nobody there could answer; but I perceive they did doubt what his answer could be,'' Sept. 23, 1666. The money granted the king for the war he afterward reckons at £5,590,000, and the debt at £900,000. The charge stated only at £3,200,000. " So what is become of all this sum, £2,390,000 !" He mentions afterward, Oct. 8, the proviso in the poll-tax bill, that there shall be a committee of nine persons to have the inspection on oath of all the accounts of the money given and spent for the war, "which makes the king and conrt mad ; the king having given order to my lord- chamberlain to send to the play-houses and broth- els, to bid all the Parliament men that were there to go to the Parliament presently ; but it was car- ried against the court by thirty or forty voices." It was thought, he says, Dec. 12, that above £400 000 had gone into the privy pm-se since the war. 436 CONSTITUTIOXAL HISTORY OF EXGLAXD [Chip, XL fore, in the House of Lords, as he confess- es, with much of that intemperate wai-mth which distinguished him, and with a con- tempt of the Lower House and its authori- ty, as imprudent in respect to his own in- terests as it was unbecoming and unconsti- tutional. The king prorogued Parliament while the measure was depending ; but in hopes to pacify the House of Commons, promised to issue a commission under the great seal for the examination of public ac- countants;* an expedient that was not likely to bring more to light than suited his pur- pose. But it does not appear that this roy- al commission, though actually prepared and sealed, was ever carried into effect ; for in tlie ensuing session, the great ministei-'s downfall having occurred in the mean time, the House of Commons bi'ought forward again their bill, which passed into a law. It invested the commissioners therein nomina- ted with very extensive and extraordinary powers, both as to auditing public accounts, and investigating the frauds that had taken place in the expenditure of money and em- ployment of stores. Thej' were to exam- ine upon oath, to summon inquests if they thought fit, to commit persons disobej-ing their orders to prison without bail, to detenn- ine finally on the charge and discharge of all accountants ; the barons of the Excheq- uer, upon a certificate of their judgment, were to issue process for recovering money to the king's use, as if there had been an immediate judgment of their own court. Reports were to be made of the commis- sioners' proceedings from time to time to the king and to both houses of Parliament. None of the commissioners were members of either House. The king, as may be sup- posed, gave way veiy reluctantly to this in- terference with his expenses. It brought to light a great deal of abuse and misappli- cation of the public revenues, and conU'ibu- ted, doubtless, in no small degree, to destroy the House's confidence in the integi'ity of goverament, and to pi'omote a more jealous watchfulness of the king's designs.* At the * Life of Clarendon, p. 392. t 19 & 20 Car. IT., c. 1. Burnet, p. 374. They reported nnaccounted balances of Xl, 309,161, be- sides mach that was questionable in the payments. But, according to Ralph, p. 177, the commissioners had acted with more technical rigor than equitj', surcharging the accountants for all sums not ex- next meeting of Parliament, in October, 1669, Sir George Carteret, treasurer of the navy, was expelled the House for issuing money without legal warrant. Sir Edward Hyde, whose influence had been almost annihilated in the last j^^^y^^^ years of Charles I., through the Clarendon's inveterate hati-ed of the queen and those who suiTounded her, acquired by de- grees the entire confidence of the young king, and baflled all the intrigues of his ene- mies. Guided by him, in all serious mat- ters, during the later years of his exile, Charles followed his counsels almost implic- itly in the difficult crisis of the Restoi-ation. The office of chancellor and the title of Eai'l of Clarendon were the proofs of the I king's favor ; but in efiect, through the indo- lence and ill health of Southampton, as well as their mutual friendship, he was the real minister of the crown.* By the clandestine man-iage of his daughter with the Duke of York, he changed one brother from an en- emy to a sincere and zealous friend, without forfeiting the esteem and favor of the other. And though he was wise enough to dread the invidiousness of such an elevation, yet 1 for several years it by no means seemed to [ render his influence less secure. f j pended since the war began, though actually ex- pended for the purposes of preparation. * Buniet, p. 130. Southampton left all the busi- ness of the treasurj-, according to Burnet, p. 131, in the hands of Sir Philip Warwick, " a weak but incorrupt man." The king, he says, chose to put up with his contradiction rather than make him popular by dismissing him. But, in fact, as we see by Clarendon's instance, the king retained his min- isters long after he was displeased with them. Southampton's remissness and slowness, notwith- standing his integrity. Pepys says, was the cause j of undoing the nation as much as any thing ; " yet, 1 if I knew all the difficulties he has lain under, and his instrument. Sir Philip Warwick, I might be of another mind," May 16, 1667. He was willing to have done something. Clarendon tells us, p. 415, to gi-atify the Presbyterians ; on which account, the bishops thought him not enough affected to the Church. His friend endeavors to extenuate this heinous sin of tolerant principles. t The behavior of Lord Clarendon on this occa- sion was so extraordinarj", that no credit could have been given to any other account than his own. The Duke of York, he saj s, informed the king of the affection and friendship that had long been between him and the J'oung lady ; that they had been long contracted, and that she was with child ; and, therefore, requested his majesty's leave that bs might publicly marry her. The Marquis of Or- mond, by the king's order, communicated this to Cha. n.-lfi60-T3.] FROM HEXRY VII. TO GEORGE 11. 437 Both in their characters, however, and turn of thinking, there was so little in con- Uie cliancellor, who " broke out iuto an immoderate passion against tlie -n ickeduess of his daughter, and said, with all imaginable earnestness, that as soon as he came home, he would turn her out of his house as a strumpet to shift for herself, and would never see her again. They told him that his passion was too violent to administer good counsel to him -, that they thought that the duke was mamed to his daughter, and that there were other measures to be t^kcn than those which the disorder he was in had suggested to him ; where- upon he fell iuto new commotions, and said. If that were true, he was well prepared to advise what was to be done ; that he had much rather his daughter should be the duke's whore than his wife ; in the former case, nobody could blame him for the resolution he had taken, for he was not obliged to keep a whore for the greatest prince alive ; and the indignity to himself he would submit to the good pleasure of God. But. if there were any reason to suspect the other, he was ready to give a positive judgment, in which he hoped their lord- ships would concur with him, that the king should immediately cause the woman to be sent to the Ton er and cast into the diingcon.ander so strict a guard that no person living should be admitted to come to her, and then that an act of Parliament thould be immediately/ passed for culling; off' her head, to which he would not only give his consent, bat would very willingly be the first man that should propose it ; and whoever knew the man, will be- lieve that he said all this very heartily." Lord Southampton, he proceeds to inform us, on the king's entering the room at the time, said very naturally, that the chancellor was mad, and had proposed such extravagant things that he was no more to be consulted with. This, however, did not bring hira to his senses ; for he repeated his strange proposal of " sending her presently to the Tower, and the rest," imploring the king to take this course, as the only expedient that could free him from the evils that this business would otherwise bring upon him. That any man of sane intellect should fall into Buch an extravagance of passion, is sufficiently wonderful ; that he should sit down in cool blood several years afterward to relate it, is still more so ; and perhaps we shall can-y our candor to an excess if we do not set down the whole of this scene to overacted hypocrisy. Charles II., we may be very sure, could see it in no other light. And here I must take notice, by-the-way, of the singular observation the worthy editor of Buniet has made : '• King Charles's conduct in this business was ex- cellent throughout ; that of Clarendon worthy an ancient Roman." We have, indeed, a Roman prec- edent for subduing the sentiments of nature rath- er than permitting a daughter to incur disgrace through the passions of the great; but I think Vir- ginius would not quite have understood the feel- ings of Clarendon. Such virtue was more like what Montesquieu calls " rhei'oisme de I'esclavage," and was just fit for the court of Gondar. But with formity between Clarendon and his master, that the continuance of his ascendency can all this violence that he records of himself, he de- viates greatly from the truth : " The king (he says) afterwai-d spoke everj- day about it, and told the chancellor that he must behave himself wisely, for that the thing was remediless, and that his majes- ty knew that they were married ; which would quickly appear to all men who knew that nothing could be done upon it. In this time the chancellor had conferred with his daughter, without any thing of indulgence, and not only discovered that they were unquestionably married, but by whom, and who were present at it, who would be ready to avow it ; which pleased him not, though it diverted him from using some of that rigor which he intended. And he saw no other remedy could be applied but that which he had proposed to the king, who thought of nothing like it." — Life of Clarendon, 29, et post. Every one would conclude from this that a mar- riage had been solemnized, if not before their ar- rival in England, yet before the chancellor had this conference with his dauehter. It appears, howev- er, from the Duke of York's declaration in the books of the privy council, quoted by Ralph, p. 40, that he was contracted to Ann Hyde on the S-lth of November, 16.j9, at Breda; and after that time lived with her as his wife, though veiy secretly: he married her on the 3d of Sept., 1660, according to the English ritual, Lord Ossory giving her away. The first child was born Oct. 22, 1660. Now wheth- er the contract were sufficient to constitute a vahd marriage, will depend on two things : first, upon the law existing at Breda ; secondly, upon the ap- plicability of what is commonly called the rule of the lex loci, to a man-iage between such persons according to the received notions of English lawyers in that age. But, even admitting all this, it is still manifest that Clarendon's expressions point to an actual celebration, and are censequently intended to mislead the reader. Certain it is, that at the time the contract seems to have been reckoned only an honorary obligation. .lames tells us himself (Macpherson's Extracts, p. 17) that he promised to maiTy her; and "though when he asked the king for his leave, he refused and dissuaded him from it, yet at last he opposed it no more, and the duke married her privately, and owned it some time af- ter." His biographer, writing from James's own manuscript, adds, " It may well be supposed that my lord-chancellor did his part, but with great cau- tion and circumspection, to soften the king in that matter which in every respect seemed so much for his own advantage."— Life of James, 387. And Pepys inserts in his Diary, Feb. 23, 1661, " Mr. H. told me how my lord-chancellor had lately got the Duke of York and duchess, and her woman, my Lord Ossory, and a doctor, to make oath before most of the judges of the kingdom concerning all the circumstances of their marriage ; and, in fine, it is confessed that they were not fully married till about a month or two before she was brought to bed ; but that they were contracted long before, and [were manied] time enough for the child to be 438 COXSTITUTIOXAL HISTORY OF EXGLAXD [Chap. XI. only be atti'ibuted to the power of early hab- it over the most thoughtless tempers. But it rarely happens that kings do not ultimate- ly shake oft' these fetters, and release them- selves from the sort of subjection which they feel in acting always by the same advisers. Charles, acute himself and cool-headed, could not fail to discover the passions and prejudices of his minister, even if he had wanted the suggestion of others, who, with- out reasoning on such broad principles as Clarendon, were perhaps his superiors in judging of temporaiy business. He wished, too, as is common, to depreciate a wisdom, and to suspect a virtue, which seemed to re- proach his own vice and folly. Nor has Clar- endon spared those remonstrances against the king's course of life, which are seldom borne without impatience or resentment. He was strongly suspected by the king, as well as his courtiers (though, according to his own account, without any reason), of having promoted the marriage of Miss Stewart to the Duke of Richmond ;* but, above all, he stood in the way of projects which, though Still probably unsettled, were floating in the legitimate. But I do uot hear tliat it was put to the judges to determine that it was so or not." [There was no question to put about the child's legitimacy, winch was beyond all doubt.] He had said before that Lord Sandwich told him, on the 17th of Oct., 1660, "the king wanted him [the duke] to maiTy her, but he would not." This seems, at first sight, inconsistent with what James says himself But at this time, though the private maiTiage had really taken place, he had been per- suaded by a most infamous conspiracy of some profligate courtiers that the lady was of a licentious character, and that Berkley, afterward Lord Fal- mouth, had enjoyed her favors. — Life of Clarendon, 33. It must be presumed that those men knew only of a contract which they thought he could break. Hamilton, in the Memoirs of Grammont, speaks of this transaction with his usual levity, though the parties showed themselves as destitute of spirit as of honor and humanity. Clarendon, we must believe (and the most favorable hypothesis for him is to give up his veracity), would not per- mit his daughter to be made the victim of a few perjured debauchees, and of her husband's fickle- ness or credulity. [Upon reconsidering this note, I think it probable that Clarendon's conversation with his daughter, when he ascertained her mar- riage, was subsequent to the 3d of September. It is always difficult to make out his dates.] — 1845. * Hamilton mentions this as the curreijt rumor of the court, and Burnet has done the same. But Clarendon himself denies that he had anj- concern in it, or any acquaintance with the parties. He wrote in too humble a strain to the king on the subject. — Life of Clarendon, p. 454. king's mind. No one was more zealous to uphold the prerogative at a height where it must overtop and chill with its shadow the pi-ivileges of the people. No one was more vigilant to limit the functions of Parliament, or more desirous to see them confiding and submissive. But there were landmarks which he could never be brought to trans- gress. He would prepare the road for abso- lute monarch J', but not introduce it ; he would assist to batter down the walls, but not to inarch into the town. His notions of what the English Constitution ought to be, appear evidently to have been derived from the times of Elizabeth and James I., to which he fre- I quently refers with approbation. In the history of that age, he found much that could not be reconciled to any liberal princi- I pies of government ; but there were two things which he cei-tainly did not find : a revenue capable of meeting an extraordinary demand without Parliamentary supply, and j a standing army. Hence he took no pains, j if he did not even, as is asserted by Burnet, discoiu'age the proposal of others, to obtain such a fixed annual revenue for the king on the Restoration as would have rendered it very rarely necessary to have recourse to Parliament,* and did not advise the keeping * Buniet says that Southampton had come into a scheme of obtaining £2,000.000 as the annual j revenue, which was prevented by Clarendon, lest it should put the king out of need of Parliaments. This the king found out, and hated him mortally for it. — P. 223. It is the fashion to discredit all that Burnet says. But observe what we may read in Pepys : " Sir W. Coventry did tell me it as the wisest thing that was ever said to the king by any statesman of his time ; and it was by my lord-treas- urer that is dead, whom, I find, he takes for a very exeat statesman, that when the king did show him- self forward for passing the Act of Indemnity, he did advise the king that he would hold his hand in doing it, till he had got his power restored that had been diminished by the late times, and his revenue settled in such a manner as he might depend upon himself without resting upon Parliaments, and then pass it. But my lord-chancellor, who thought he could have the command of Parliaments forever, because for the king's sake they were a while will- ing to grant all the king desired, did press for its being done ; and so it was, and the king from that time able to do nothing with the Parliament al- most, " March 20, 1609. Rari quippe boni ! Kei- ther Southampton nor Coventry make the figure ia this extract we should wish to find ; yet who were their superiors for integrity and patriotism under Charles II. ? Perhaps Pepys, like most gossiping men, was not always correct. Cha. II.— 1C60-73.] FROM HENRY VII. TO GEORGE II. 439 up any part of the army. That a few troops were retained was owing to the Duke of i'ork. Nor did he go the length that was expected in procuring the repeal of ail the laws that had been enacted in the Long Parliament.* These omissions sank deep in Charles's heart, especially when lie found that he had to deal with an unmanageable House of Commons, and n)ust fight tlie battle for arbitrary power, which might have been achieved, he thought, without a struggle by his minister. Thei-e was still less hope of obtaining any concurrence from Clarendon in the king's designs as to religion. Though he does not once hint at it in his writings, there can be little doubt that he must have suspected his master's inclination toward tlie Church of Rome. The Duke of York considered this as the most likely cause of his remissness in not sufficiently advancing tlie prerogative.! He was always opposed to the various schemes of a general indul- gence toward popery, not only from his strongly Protestant principles and his dis- like of all tolei'ation, but from a prejudice against the body of the English Catholics, whom he thought to arrogate more on the ground of merit than they could claim. That interest, so powerful at court, was de- cidedly hostile to the chancellor; for the Duke of York, who strictly adhered to him, if he had not kept his change of religion wholly secret, does not seem to have hith- erto formed any avowed connection with the popish paity.J * Macplierson's Extracts from Life of James, 17, 18. Compare Innes's Life of James, published by Clarke, i., 391, 393. In the former work it is said that Clarendon, upon Venner's insurrection, advised tliat the guards s'noulduot be disbanded. But this Beems to be a mistake in copying ; for Clarendon read the Duke of York. Pepys, however, who heard all the gossip of the town, mentions the year after that the chancellor thought of raising an army, with the duke as general, Dec. 22, 1661. t Ibid. t The Earl of Bristol, with all bis constitutional precipitancy, made a violent attack on Clarendon, by exhibiting articles of treason against him in the House of Lords in 1663 ; believing, no doubt, that the schemes of the intriguers were more mature, and the king more alienated, than was really the case ; and thus disgraced himself at court instead of his enemy.— Pari. Hist., 276. Life of Clar., 209. Before this time Pepys had heard that the chan- cellor had lost the king's favor, and that Bristol, with Buckingham and two or three more, m\ed him, May 15, 1663. This estrangement of the king's favor is sufficient to account for Claren- Loss of the don's loss of power: but his en- kmg's favor. * Coalition tire rum was rather accomplished againstClar- by a strange coalition of enemies, which his virtues, or his errors and infirm- ities, had brought into union. The Cava- liers hated him on account of the Act of In- demnity, and the Presbyterians for that of Uniformity. Yet the latter were not, in general, so eager in his prosecution as the others.* But he owed great part of the * A motion to refer the heads of charge against Clarendon to a committee was lost by 194 to 128 ; Seymour and Osborne telling the noes, Birch and Clarges the ayes. — Commons' Journals, Nov. 6, 1667. These names show how parties ran, Sey- mour and Osborne being high-flying Cavaliers, and Birch a Presbyterian. A motion that he be im- peached for treason on the first article was lost by 172 to 103, the two former tellers for the ayes, Nov. 9. In the Harleian MS., 881, we have a copious account of the debates on this occasion, and a tran- script in No. 1218. Sir Heneage Finch spoke much against the chai-ge of treason ; Maynard seems to have done the same. A charge of secret corre- spondence with Cromwell was introduced merely ad invidiam, the prosecutors admitting that it was pardoned by the Act of Indemnity, but wishing to make the chancellor plead that : Maynard and Hampden opposed it, and it was given up out of shame without a vote. Vaughan, afterward chief- justice, argued that counseling the king to govern by a standing army was treason at common law, and seems to dispute what Finch laid down most broadly, that there can be no such thing as a com- mon-law treason ; relying on a jjassage in Glan- vill, where "seductio domini regis" is said to be treason. Maynard stood up for the opposite doc- trine. Waller and Vaughan argued that the sale of Dunkirk was treason, but the article passed without declaring it to be so ; nor would the word have appeared probably in the impeachment, if a young Lord Vaughan had not asserted that he could prove Clarendon to have betrayed the king's councils, on which an article to that effect was carried by 161 to 89. Garraway and Littleton were forward against the chancellor; but Coventry seems to have taken no great part. — See Pepys's Diary, Dec. 3d and 6th, 1667. Baxter also says that the Presbyterians were by no means strenuous against Clarendon, but rather the contrary, fearing that worse might come for the countiy, as giving him credit for having kept off militaiy government. — Baxter's Life, part iii., 21. This is very highly to the honor of that party whom he had so much oppressed, if not betrayed. " It was a notable providence of God,'' he says, " that this man, who had been the great instrument of state, and done almost all, and had dealt so ciuelly with the Non- conformists, should thus, by his own friends, be cast out and banished ; while those that he had per- secuted were the most moderate in his cause, and 440 COXSTITUTIONAL HISTORY OF ENGLAND [Chap. XI. severity with which he was treated to his own pride and ungovernable passionateness, by which he had rendered very eminent men in the House of Commons implacable, and to the language he had used as to the dignity and privileges of the House itself.* many for liim. And it was a t^eat ease that be- fell the good people throughout the land by his de- jection; for his vyay was to decoy men into con- spiracies or to pretend plots, and upon the rumor of a plot the innocent people of many countries were laid in prison, so that no man knew when he was safe ; whereas, since then, though laws have been made more and more severe, yet a man know- eth a little better what he is to expect, when it is by a law that he is to be tried." Sham plots there seem to have been ; but it is not reasonable to charge Clarendon with inventing them. — llalph, 122. * In his wrath against the proviso inserted by Sir George Downing, as above mentioned, in the bill of supply, Clarendon told liim, as he confesses, that the king could never be well served while fel- lows of his condition were admitted to speak as mueh as they had a mind ; and that in the best times such presumptions had been punished with imprisonment by the lords of the council, without tlie king's taking notice of it, 321. The king was naturally displeased at this insolent language to- ward one of his servants, a man who had filled an eminent station, and done services, for a suggestion intended to benefit the revenue ; and it was a still more flagrant affront to the House of Commons, of which Downing was a member, and where he had proposed this clause, and induced the House to adopt it. Coventry told Pepys "many things about the chancellor's dismissal not fit to be spoken ; and yet not any unfaithfulness to the king, but instar om- nium, that he was so great at the council-board and in the administration of matters there was no room for any body to propose any remedy for what was amiss, or to compass any thing, though never 80 good for the kingdom, unless approved of by the chancellor; he managing all things with that great- ness which now will be removed, that the king may have the benefit of others' advice," Sept. 2, 1667. His own memoirs are full of proofs of this haughtiness and intemperance. He set himself against Sir William Coventry, and speaks of a man as able and virtuous as himself with marked aver- sion.— See, too, Life of James, 398. Coventiy, ac- cording to this writer, 431, was the chief actor in Clarendon's impeachment ; but this seems to be a mistake ; though he was certainly desirous of get- ting him out of place. The king, Clarendon tell us, 438, pretended that the anger of Parliament was such, and their power too, as it was not in his power to save him. The fallen minister desired him not to fear the power of Parliament, " which was more or less, or nothing, as he pleased to make it." So preposterous as well as unconstitutional a way of talking could not but aggravate his unpopularity with that great body he pretended to contemn. A sense of this eminent person's great tal- ents as well as general integrity and consci- entiousness on the one hand, an indignation at the king's ingratitude and the profligate counsels of those who supplanted him on the other, have led most writers to overlook his faults in administration, and to treat all the articles of accusation against him as friv- olous or unsupported. It is doubtless im- possible to justify the charge of high trea- son, on which he was impeach- ^fs impeach- ed ; but there are matters that ■ , articles of it never were or could be disprov- not unfuusd- ed ; and our own knowledge en- ables us to add such grave accusations as must show Clarendon's unfitness for the government of a free country.* 1. It is the fourth article of his impeach- ment, that he " advised and pro- inegai im- cured divers of his majesty's sub- P"sc"i'«ents I jects to be imprisoned against law, in re- ! mote islands, garrisons, and other places, thereby to prevent them from the benefit of the law, and to produce precedents for the imprisoning any other of his majesty's subjects in like manner." This was un- doubtedly true. There was some gi-ound for apprehension on the part of the govern- ment from those bold spirits who had been j accustomed to revolutions, and drew encour- j agement from the vices of the court and the I embarrassments of the nation. Ludlow and ! Algernon Sidney, about the year 166.S, had ! projected an insurrection, the latter solicit- 1 ing Louis XIV. and the pensionary of Hol- land for aid.f Many officers of the old ar- ' my, Wildman, Creed, and others, suspect- ' ed, perhaps justly, of such conspiracies, had been illegally detained in prison for several years, and only recovered their liberty on Clarendon's dismissal. J He had too much encouraged the hateful race of informers, though he admits that it had grown a trade by which men got money, and that many were committed on slight grounds. § Thus Colonel Hutchinson died in the close con- finement of a remote prison, far more prob- * State Trials, vi., 318. Pari. Hist. t Ludlow, iii., 118, 165, et post. Clarendon's Life, 290. Burnet, 226. (Euvres de Louis XIV., ii., 204. I Harris's Lives, v., 28. Biogr. Brit, art. Har- rington. Life of James, 396. Somers Tracts, vii., 530, 534. § See Kennet's Register, 7.57 ; Ralph, 78. et post; Harris's Lives, v., 182, for the proofs of this. Cha. II.— 1660-73.] FROM HENEY VII. TO GEORGE 11. nbly on account of his share in the death of Charles I., from which the Act of Indem- nity had discharged him, than any just pre- text of treason.* It was difficult to obtain a liabeas corpus from some of the j udges in this reign. But to elude that provision by removing men out of the kingdom was such an offense against the Constitution as may be thought enough to justify the impeach- ment of any minister. 2. The first article, and certainly the most momentous, asserts, " That the Earl of Clarendon hath designed a standing army to be raised, and to govern the kingdom thereby, and advised the king to dissolve this present Parliament, to lay aside all thoughts of Parliaments for the future, to goveiTi by a military power, and to maintain the same by free quarter and conti'ibution." This was prodigiously exaggerated ; yet there was some foundation for a part of it. In the disastrous summer of 1667, when the Dutch fleet had insulted our coasts, and burned our ships in the Medway, the Ex- chequer being empty, it was proposed in council to call together immediately the Parliament, which then stood prorogued to a day at the distance of some months. Clarendon, who feared the hostility of the House of Commons toward himself, and had pressed the king to dissolve it, main- tained that they could not legally be sum- moned before the day fixed ; and, with a strange inconsistency, attaching more im- portance to the formalities of law than to its essence, advised that the counties where the troops were quartered should be called upon to send in pi'ovisions, and those where tliere were no troops to contribute money, which should be abated out of the next tax- es ; and he admits that he might have used the expression of raising contributions, as in tlie late civil war. This unguarded and un- warrantable language, thrown out at the council-table where some of his enemies were sitting, soon reached the ears of the Commons, and, mingled up with the usual misrepresentations of faction, was magnified into a charge of high treason. f * Mem. of Hutchinson, 303. It seems, however, that he was suspected of some concern with an in- tended rising in 1663, though nothing was proved against him. — Miscellanea Aulica, 319. t Life of Clarendon, 424. Pepys says the Par- liament was called together " against the Duke of York's mind flatly, who did rather advise the king 441 3. The eleventh article charged Lord Clarendon with having advised saieofDun- and effected the sale of Dunkirk to the French king, being part of his maj- esty's dominions, for no greater value than the ammunition, artillery, and stores were worth. The latter part is generally assert- ed to be false. The sum received is deem- ed the utmost that Louis would have given, who thought he had made a hard bargain. But it is veiy difificult to reconcile what Clarendon asserts in his defense, and much more at length in his life (that the business of Dunkirk was entirely decided before he had any thing to do in it, by the advice of Albemarle and Sandwich), with the letters of D'Estrades, the negotiator in this trans- action on the part of France. In these let- ters, written at the time to Louis XIV., Clarendon certainly appears not only as the person chiefly concerned, but as represent- ing himself almost the only one of the coun- cil favorable to the measure, and having to overcome the decided repugnance of South- ampton, Sandwich, and Albemarle.* I can to raise money as he pleased ; and against the chancellor, who told the king that dueen Eliza- beth did do all her business in 1.588 without calling a Parliament, and so might he do for any thing he saw," June 25, f667. He probably got this from his friend Sir W. Coventry. * Ralph, 78, &c. The overture came from Clar- endon, the French having no expectation of it. The worst was, that, just before, he had dwelt in a speech to Parliament on the importance of Dunkirk. This was on May 19, 16G2. It appears by Louis XIV. 's own account, which certainly does not tally with some other authorities, that Dunkirk bad been so great an object with Cromwell, that it was the stipulated price of the English alliance. Louis, however, was vexed at this, and detemiined to re- cover it at any price : il est certain que je ue pou vols trop donner pour racheter Dunkerque. He sent D'Estrades accordingly to England in 1661, direct- ing him to make this his gi'eat object. Charles told the ambassador that Spain had made him great offers, but be would rather treat with France. Louis was delighted at this ; and though the sum asked was considerable, 5,000,000 livres, he would not break off, but finally concluded the treaty for 4,000,000, payable in three years ; nay, saved 500,000 without its being found out by the English, for a banker having offered them prompt payment at this di.scount, they gladly accepted it; but this banker was a person employed by Louis himself, who had the money ready. He had the greatest anxiety about this affair; for the city of London deputed the lord-mayor to offer any sum so that Dunkirk might not be alienated. — ffiuvres de Louis XIV., i., 167. If this be altogether correct, the King of France did not fancy he had made so bad 442 COXSTITUTIOXAL HISTORY OF EXGLAXD [Chap. XL uot, indeed, see anv other explanation than that he uiagnitied the obstacles in the way of this tieatr. in order to obtain better terms ; a management not veiy miusual in diplomatical dealing, but in the degree at least to which he carried if. scarcely recon- cilable with the good faith we should ex- pect from this minister. For the transac- tion itself, we can hardly deem it honorable or impolitic. The expense of keep'mg up Dunkirk, though not trifling, would have been wUlingly defrayed by Parliament, and could not well be pleaded by a government which had just encumbered itself with the useless burden of Tangier. That its pos- session was of no great du"ect value to Eng- land must be confessed : but it was anotlier question whether it ought to have been sur- rendered into the hands of France. 4. This close connection with France is indeed a great reproach to Clarendon's pol- icy, and was the spring of mischiefs to which he contributed, and which he ought to have foreseen. WTiat were the motives of these strong professions of attachment to the in- terests of Louis XIV. which he makes in some of his letters, it is diificult to say. since he had undoubtedly an ancient prejudice against that nation and its government. I should incline to conjecture tliat his knowl- edge of the king's unsoundness in religion led him to keep at a distance from the court of Spain, as being far more zealous in its popery, and more connected with the Jes- uit faction, than that of France ; and this possibly influenced him. also, with respect to the Portuguese match, wherein, though not the first adviser, he certainly took much in- terest ; an alliance as little judicious in the outset as it proved eventually fortimate.* But the capital misdemeanor that Solicitation ' of French he committed m this relation with France was the clandestine solic- itation of pecuniary aid for the king. He ■* first taught a lavish prince to seek the wa- ges of dependence in a foreign power, to elude the control of Parliament by the help of French money. t The purpose for which a bareaiu ; and. indeed, with his projects, if he had the money to spare, he could not think so. — Com- pare the Memoires d'Estrades. and the Supplement to the third volume of Clarendon State Papers. The historians are of no value, except as they copy from some of these original testimonies. * Life of Clar, "fl. Life o! James. 393. t See Supplement to third volume of Clarendon I this aid was asked, the succor of Portugal, might be fair and laudable : but the prece- dent was most base, dangerous, and abom- inable. A king who had once tasted the sweets of dishonest and clandestine lucre would, in the words of the jjoet. be no more capable afterward of abstaining from it than a dog from his greasy offal. These are the errors of Clarendon's po- litical life : which, besides his no- , . C'.irenoon s tonous concurrence in all meas- faults as a ures of severity and restraint to- wai-d the Non-conformists, tend to diminish our respect for his memory, and to exclude his name from that list of great and wise ministers, where some are willing to place huu near the head. If I may seem to my readers less favorable to so eminent a per- son than common history" might warrant, it is at least to be said that I have formed my decision from his own recorded sentiments, or from equally undisputable sources of au- thority. The publication of his lil'e. that is, of the history of his administration, has not contributed to his honor. AVe find in it lit- tle or nothing of that attachment to the Con- stitution for which he had acquired credit, and some things which we must struggle hard to reconcile with his veracity, even if the suppression of truth is not to be reck- oned an impeachment of it in a historian.* State Papers, tor abundant evideiice of the cloea connection between the courts of France and Eng- land. The former offered bribes to Lord Clarendon so frequently and unceremoniously, that one is dis- posed to think he did not show so much indigna- tion at the first overture as he ou^ht to have done. — See p. 1. -1, 13. The aim of Louis was to effect ; the match with Catharine. Spain would have siv- en a great portion with any Protestant princess, in order to break it. Clarendon asked, on his mas- ters account, for .£50,000 to avoid application to Parliament, p. i. The Frendh offered a secret loan, or subsidy, perhaps, of 2,000.000 livres for the succor of PortusaL This was accepted by Claren- don, p. 15 : bat I do not find any thing more about it. * As no one who res-ards with attachment the present system of the English Constitution can look upon Lord Clarendon as an excellent minister, or a friend to the soundest principles of civil and religious hberty, so no man whatever can avoid considering his incessant deviations from the ereat duties of a historian as a moral blemish in his cbar* acter. He dares very frequently to say what is not true, and what he must have known to be otherwise : he does not dare to say what is true. And it is almost an aggravation of this reproach, that he aimed to deceive posterity, and poisoned at the fountain a stream from which another gen- eration was to drink. Xo defense has ever been Cha. 11.-1660-73.] FROM HENRY VU. :. TO GEORGE 11. 443 But the manifest profligacy of those who contributed most to his ruin, and the meas- ures which the court tooiv soon afterward, have rendered his administration compara- tively honorable, and attached veneration to bis raemoiy. We are unwilling to believe that there was any thing to censure in a minister whom Buckingham persecuted, and against whom Arlington intrigued.* set np for the fidelity of Clarendon's history ; nor can men, who have sifted the authentic materials, entertain much difference of judgment in this re- spect ; though, as a monument of powerful abiHty and impressive eloquence, it will always be read with that delight which we receive from many great historians, especially the ancient, independ- ent oPany confidence in their veracity. One more instance, before we quit Lord Claren- don forever, may here be mentioned of his disre- gard for truth. The strange tale of a fruitless search after the restoration for the body of Charles I. is well known. Lords Southampton and Liud- sey, he tells us, who had assisted at their master's obsequies in St. George's Chapel at Windsor, were so overcome with grief that they could not recog- nize the place of interment ; and, after several vain attempts, the search was abandoned in despair. — Hist, of Rebellion, vi., 244. 'Whatever motive the noble historian may have had for this story, it is absolutely incredible that any such ineffectual search was ever made. Nothing could have been more easy than to have taken up the pavement of the choir. But this was unnecessaiy. Some, at least, of the workmen employed must have remem- bered the place of the vault. Nor did it depend on them ; for Sir Thomas Herbert, who was pres- ent had made at the time a note of the spot, "just opposite the eleventh stall on the king's side." — Herbert's Memoirs, 142. And we find from Pepys's Diarj', Feb. 26, 1666, that " he was shown at Windsor where the late king was buried, and King Henry VIII., and my Lady Seymour;" in ■which spot, as is well known, the royal body has twice been found, once in the reign of Anne, and again in 1813. [It has been sometimes suggested, that Charles II., having received a large sum of money from Parliament toward his father's funeral, chose to have it believed that the body could not be found, But the vote of XTO.OOO by the Com- mons for this purpose was on Jan. 30, 1678, long after the pretended search which Clarendon has mentioned. Wren was directed to make a design for a monument, which is in All Souls' College ; but no further steps were taken. — Ellis's Letters, 1st series, vol. iii., p. 329. It seems veiy unlikely that the king ever got the money which had been voted, and the next Parliaments were not in a temper to repeat the offer.] — 1845. ' The tenor of Clarendon's life and writings al- most forbids any surmise of pecuniary corruption. Yet this is insinuated by Pepys, on the authority of Evelyn, April 27 and May 16, 1667. But the one was gossiping, though shrewd ; and the other feeble, though accomplished. Lord Dartmouth, A distinguished characteristic of Claren- don liad been his firmness, called, Hisposiiian. indeed, by most, pride and obsti- '"'""^ "'g""'' nacy, whicli no circumstances, no perils, seemed likely to bend. But his spirit sunk all at once with liis fortune. Clinging too long to office, and cheating himself against all probability with a liope of his master's kindness when he had lost liis confidence, he forgot that dignified philosophy which ennobles a voluntary retirement, that stern courage which innocence ought to inspire ; and, hearkening to tlie king's treacherous counsels, fled before his enemies into a for- eign country. Though the impeachment, at least in the point of high treason, can not be defended, it is impo.ssible to , ' » and conse- deny that the act of banishment, quent bauish- under the circumstances of his flight, was capable, in the main, of full jus- tification. In an ordinary criminal suit, a process of outlawry goes against the accus- ed who flies from justice; and his neglect to a])pear within a given time is equivalent, in cases of treason or felonj', to a conviction of the offense : can it be complained of, that a minister of state, who dai-es not confront a Parliamentaiy impeachment, should be visited with an analogous penalty? But, whatever injustice and violence may be found in this prosecution, it estabfished for- ever the right of impeachment, which the discredit into which the Long Parliament had fallen exposed to some hazai d ; the strong abettors of prerogative, such as Clar- endon himself, being inclined to dispute this responsibility of the king's advisers to Par- liament. The Commons had, in the pre- ceding session, sent up an impeachment against Lord Mordaunt, upon charges of so little public moment, that they may be sus- who lived in the next age, and whose splenetic humor makes him no good witness against any body, charges him with receiving bribes from the main instruments and promoters of the late trouhles, and those who had plundered the Royahsts, which enabled him to build his gTeat mansion in Picca- dilly ; asserting that it was full of pictures belong- ing to families who had been despoiled of them ; " and whoever had a mind to see what gi-eat fam- ilies had been plundered during the civil war, might find some remains either at Clarendon House or at Cornbury.'' — Note on Buniet, 88. The character of Clarendon, as a minister, is fairly and judiciously drawn by Macphcrson, Hist, of England, 98 ; a work by no means so full of a , Tory spirit as has been supposed. 444 CONSTITUTIONAL HISTORY OP ENGLAND [Chap. XL pected of having chiefly had in view the as- sertion of this important privilege.* It was never called in question from this time; and, indeed, they took care, during the remain- der of this reign, that it should not again be endangered by a paucity of precedents. f The period between the fall of Clarendon in 1667, and the commencement of Lord Danby's administration in 1673, is general- * Pari. Hist., 347. t The Lords refused to commit the Earl of Clar- endon on a general impeacluneut of liigh treason ; and in a conference with the Lower House, denied the authority of the precedent in Strafford's case, which was pressed upon them. It is remarkable that the managers of this conference for the Com- mons vindicated the first proceedings of the Long Parliament, which shows a considerable change in their tone since 1661. They do not, howevei', seem to have urged, what is an apparent distinction be- tween the two precedents, that the commitment of Strafford was on a verbal request of Pym in the name of the Commons, without alleging any special matter of treason, and, consequently, irregular and illegal, while the 16th article of Clarendon's im- peachment charges him with betraying the king's counsels to his enemies, which, however untrue, evidently amounted to treason within the statute of Edward III. ; so that the objection of the Lords extended to committing any one for treason upon iuipeachmeut, without all the particularity required in an indictment. This showed a very commenda- ble regard to the liberty of the subject ; and from this time we do not find the vague and unintelligi- ble accusations, whether of treason or misdemean- or, so usual in former proceedings of Parliament. — Pari. Hist., 387. A protest was signed by Buck- ingham, Albermarle, Bristol, Arlington, and others of their party, including three bishops (Cosins, Croft, and another), against the refusal of their House to commit Clarendon upon the general charge. A few, on the other hand, of whom Hollis is the only remarkable name, protested against the bill of banishment. " The most fatal blow (says James) the king gave himself to his power and prerogative, was when he sought aid from the House of Commons to destroy the Earl of Clarendon; by that he put that House again in mind of their impeaching priv- ilege, which had been wrested out of their hands by the Kestoration ; and when ministers found they were like to be left to the censure of Parlia- ment, it made them have a greater attention to court an interest there than to pursue that of their princes, from whom they hoped not for so sure a ! support." — Life of James, 593. [ The king, it is said, came rather slowly into the [ measui'e of impeachiueut ; but became afterward j BO eager as to give the attorney-general. Finch, positive orders to be active in it, observing him to be silent. — Carte's Ormond, ii., 353. Buckingham ' had made the king great promises of what the Commons would do, in case he would sacrifice Clarendon. I ly reckoned one of the most disgraceful in the annals of our monarchy. This cabaimin- was the age of what is usually de- nominated the Cabal administration, from the five initial letters of Sir Thomas Clif- ford, first commissioner of the treasury, af- terward Lord ClifTord and high-treasurer; the Earl of Arlington, secretary of state; the Duke of Buckingham ; Lord .\shley, chancellor of the Exchequer, aftenvard Earl of Shaftesbury and lord-chancellor; and, lastly, the Duke of Lauder- Scheme of dale. Yet, though the counsels 'Zr.tZ- of these persons soon became ex- -ii » Duke of York ure of the Exclusion Bill — too proposed. ^^^^ indeed, for the spirit of the country, and the rock on which English liberty was nearly shipwrecked. In the Long Parliament, full as it was of pension- ers and creatures of court influence, noth- ing so vigorous would have been successful. Even in the bill which excluded Catholic peers from sitting in the House of Lords, a proviso, exempting the Duke of York from its operation, having been sent down from the other House, passed by a majority of Parliament two Voices.* But the zeal they dissolved, ghowed against Danby induced the king to put an end to this Parliament of seventeen years' duration ; an event long ardently desired by the popular party, who foresaw their ascendency in the new elec- tions.f The next House of Commons ac- fault, indeed, existed iu a much greater degree on the opposite side, but by no means the latter. See, also, a treatise by Barlow, published in 1G79, en- titled. Popish Principles pernicious to Protestant Princes. * Pari. Hist., i040. t See Marvell's " Seasonable Argument to per- suade all the Grand-juries in England to petition for a new Parliament." He gives very bad char- acters of the principal members on the court side but we can not take for granted all that comes from go unscrupulous a Ubeler. Sir Harbottle Grimston had first thrown out, in the session of 1675, that a standing Parliament was as great a grievance as a standing army, and that an appli- cation ought to be made to the kin^' for a dissolu- tion. This was not seconded, and met with much disapprobation from both sides of the House. — Pari. Hist., vii., Gi. But the country party, in two years' time, had changed their views, and were become eager for a dissolution. An address to that effect was moved in the House of Lords, and lost by only two voices, the Duke of York voting for it. — Id., 800. This is explained by a passage in Coleman's letters, where that intriguer expresses his desire to see Parliament dissolved, in the hope that another would be more favorable to the toler- ation of Catholics. This must mean that the Dis- cordingly came together with an ardor not yet quenched by coiTuption ; and after re- viving the impeachments commenced by their predecessors, and carrying a measure long in agitation, a test* which shut the Catholic peers out of Parliament, went senters might gain an advantage over the rigorous Church of England men, and be induced to coma into a general indulgence. * This test, 30 Car. II., stat. 2, is the declaration subscribed by members of both houses of Parlia- ment on taking their seats, that there is no tran- substantiation of the elements in the Lord's Sup- per ; and that the invocation of saints, as practiced iu the Church of Rome, is idolatrous. The oath of supremacy was already taken by the Commons, though not by the Lords ; and it is a great mistake to imagine that Catholics were legally capable of sitting in the Lower House before the act of 1679. But it had been the aim of the Long Parliament in 1642 to exclude them from the House of Lords ; and this was of course revived with greater eager- ness, as the danger from their influence gi-ew more apparent. A bill for this purpose passed the Com- mons in 1675, but was thrown out by the peers. — Journals, May \4, Nov. 8. It was brought in again in the spring of 1678.— Pari. Hist, 990. In the au- tumn of the same year it was renewed, when the Lords agi'eed to the oath of supremacy, but omit- ted the declaration against transubstantiation, so far as their own House was affected by it. — Lords' Journals, Nov. 20, 1678. They also excepted the Duke of York from the operation of the bill, which exception was carried in the Commons by two voices. — Pari. Hist, 1040. The Duke of York and seven more lords protested. The violence of those times on all sides will ac- count for this theological declaration ; but it is more difficult to justify its retention at present. 'Whatever influence a belief in the pope's suprem- acy may exercise upon men's politics, it is hard to see how the doctrine of transubstantiation can di- rectly affect them ; and surely he who renounces the former, can not be very dangerous on account 1 of his adherence to the latter. Nor is it less ex- I traordinary to demand, from any of those who usu- I ally compose a House of Commons, the assertion that the practice of the Church of Rome in the in- vocation of saints is idolatrous ; since, even on the hypothesis that a country gentleman has a clear notion of what is meant bj' idolatry, he is, in many cases, wholly out of the way of knowing wliat the Church of Rome, or any of its members, believe or practice. The invocation of saints, as held and ex- plained by that Church in the Council of Trent, is surely not idolatrous, with whatever error it may be charged ; but the practice, at least of unedu- cated Roman Catholics seems fully to justify the declaration, understanding it to refer to certain su- perstitions, countenanced or not eradicated by their clergy. I have sometimes thought that the legislator of a great nation sets off oddly by sol- emnly professing theological positions about which he knows nothing, and swearing to the possession of property which he does not enjoy. — [1827.] 474 CONSTITUTIONAL HISTORY OF ENGLAND [Chap. XIL upon the Exclusion Bill. Their dissolution put a stop to this; and in the next Parlia- ment the Lords rejected it.* The right of excluding an unworthy heir from the succession was supported not only by the plain and fundamental principles of civil society, which establish the interest of the people to bo the paramount object of po- litical institutions, but by those of the En- glish Constitution. It had always been the better opinion among lawyers, that the reign- ing king, with consent of Parliament, was competent to make any changes in the in- heritance of the crown ; and this, besides the acts passed under Heniy VIII. em- powering him to name his successor, was expressly enacted, with heavy penalties against such as should conti'adict it, in the thirteenth year of Elizabeth. The contra- ry doctrine, indeed, if pressed to its legiti- mate consequences, would have shaken all the statutes that limit the prerogative ; since, if the analogy of entails in private inheritan- ces were to be resorted to, and the existing Legislature should be supposed incompetent to alter the line of succession, they could as little impair as they could ahenate the inde- feasible rights of the heir ; nor could he be bound by restrictions to which he had nev- er given his assent. It seemed strange to maintain that the Parliament could reduce a future King of England to the condition of a Doge of Venice, by shackling and tak- ing away his authority, and j-et could not divest him of a title which they could ren- der little better than a mockeiy. Those, accordingly, who disputed the legislative omnipotence of Parliament, did not hesitate to assert that statutes infringing the prerog- ative were null of themselves. With the court la%vyers conspired the clergy, who pretended these matters of high policy and constitutional law to be within theii" prov- ince, and, with hardly an exception, took a zealous part against the Exclusion. It w^as, indeed, a measure repugnant to the com- mon prejudices of mankind, who, without * The second reading of the Exclusion Bill was carried, May 21, 1679, by 207 to 128. The debates are iu Pailiameutary History, 1125, et post. In the next Parliament it was carried without a di- i-ision. Sir Leoline Jenkins alone seems to have taken the high ground that " Parliament can not disinherit the heir of the crown ; and that, if such an act should pass, it would be invalid in itself." —Id., iiai. entering on the abstract competency of Par- liament, are naturally accustomed, in an he- reditary monarchy, to consider the next heir as possessed of a right, which, except through necessity or notorious criminality, can not be justly divested. The mere profession of a religion dift'erent from the established does not seem, abstractly considered, an adequate gi-ound for unsettling the regular order of inheritance. Yet such was the naiTow bigotiy of the sixteenth and seven- teenth centuries, which died away almost entirely among Protestants in the next, that even the ti'ifling differences between Lu- therans and Calvinists had frequently led to j alternate persecutions in the German states, as a prince of one or the other denomina- tion happened to assume the government ; and the Romish religion, in particular, was I in that age of so i-estless and malignant a J character, that unless the power of the crown should be far more strictly limited than had hitherto been the case, there must be a very serious danger fi'om any sovereign of that faith ; and the letters of Coleman, as well as other evidences, made it manifest that the Duke of York was engaged in a scheme of general conversion, which, fi-om his arbitrary temper and the impossibility of succeeding by fair means, it was just to apprehend, must involve the subversion of all civil liberty. Still this was not distinct- ly perceived by persons at a distance from the scene, imbued, as most of the gentiy were, with the principles of the old Cava- liers, and those which the Church had in- culcated. The king, though hated by the Dissenters, retained much of the affections of that party, who forgave the vices they deplored, to his father's memory and his pei'sonal affability. It appeared harsh and disloyal to force his consent to the exclusion of a brother in whom he saw no crime, and to avoid which he offered every possible expedient.* There wUl always be found in j the people of England a strong unwilling- ness to force the reluctance of their sover- eign— a latent feeling, of which pai-ties in the heat of their ti'iumphs are seldom * While the Exclusion Bill was passing the Commons, the king took the pains to speak himself to almost everj- lord, to dissuade him from assenting to it when it should come up ; telling them, at the same time, let what would happen, he would nev- er suffer such a villanous bill to pass. — Life of James, 553. Cha. II.— 1673-85.] mOM HENKY VII. TO GEORGE II. 475 aware, because it does not display itself un- til the moment of reaction. And although, in the less settled times before the Revolu- tion, this personal loyalty was highly dan- gerous, and may still, no doubt, sometimes break out so as to frustrate objects of high ^ import to tJio public weal, it is, on the whole, j a salutaiy temper for the conservation of ! the monarcliy, which may require such a 1 barrier against the encroachments of fac- 1 tions and the fervid passions of the nmlti- ' tude. I The Bill of Exclusion was drawn up with ' Schemes of as much regard to the inheritance fnd Moa"^ of the Duke of York's daughters mouth. as they could reasonablj' demand, oras any lawyer engaged forthem could have shown, though something different seems to be insinuated by Burnet. It pi'ovided that the imperial crown of England should descend to and be enjoyed by such person or persons successively during the life of the Duke of York as should have inherited or enjoyed the same in case he were naturally dead. If the Princess of Orange was not expressly named (which, the bishop tells us, gave a jealousy, as though it were intended to keep that matter still undetermined), this silence was evidentlj' justified by the pos- sible contingency of the birth of a son to the duke, whose right there was no intention in the framers of the bill to defeat. But a la]-ge part of the opposition had, unfortunate- ly, other objects in view. It had been the great error of those who withstood the ar- bitraiy counsels of Charles II. to have ad- mitted into their closest confidence, and in a considerable degree to the management of their party, a man so destitute of all hon- est principle as the Earl of Shaftesbury. Under his contaminating influence, their passions became more intractable, their con- nections more seditious and dcmocratical, their schemes more i-evolutionary ; and they broke away more and more from the line of national opinion, till a fatal reaction in- volved themselves in ruin, and exposed the cause of public liberty to its most imminent peril. The countenance and support of Shaftesbury brought forward that unconsti- tutional and most impolitic scheme of the Duke of Monmouth's succession. There could hardly be a greater insult to a nation used to respect its hereditary line of kings, than to set up the bastard of a prostitute. without the least pretense of personal ex- cellence or public services, against a princess of known virtue and attachment to the Prot- estant religion ; and the eflirontery of this attempt was aggravated by the libels eager- ly circulated to dui)e the credulous popu- lace into a belief of Monmouth's legitimacy. The weak young man, lured on to destruc- tion by the arts of intriguers and the ap- plause of the multitude, gave just offense to sober-minded patriots, who knew where the true hopes of public liberty were anchored, by a kind of triumphal procession through parts of the country, and by other indica- tions of a presumptuous ambition.* * Ralph, J). 496. The atrocious libel, entitled, " An Appeal from the Country to the City," pub- lished in 1679, and usually ascribed to Ferguson (though said in Biogr. Brit, art. L'Estrange, to be written by Charles Blount), was almost sufficient of itself to excuse the return of public opinion to- ward the throne. — State Tracts, temp. Car. II. Ralph, i., 476. Pari. Hist, iv.. Appendix. The king is personally strack at in this ti'act with the utmost fury ; the queen is called Agrippina, in al- lusion to the infamous charges of Oates; Mon- mouth is held up as the hope of the couuti'y. " He will stand by you, therefore you ought to stand by him. Ho who hath the worst title always makes the best king." One Hanis was tried for pub- lishing this pamphlet The jury at first found hira guilty of selling ; an equivocal verdict, by which they probably meant to deny, or at least to dis- claim, any assertion of the libelous character of the publication. But Scroggs telling them it was their province to say guilty or not guilty, thej' re- turned a verdict of guilty. — State Trials, vii., 925. Another arrow dipped in the same poison was a " Letter to a Person of Honor concerning the Black Box." — >Somei-s Tracts, viii., 189. The stoi'y of a contract of marriage between the king and Mrs. Waters, Monmouth's mother, concealed in a black box, had lately been cun-ent ; and the former had taken pains to expose its falsehood by a public ex- amination of the gentleman whose name had been made use of This ai-tful tract is hitended to keep up the belief of Monmouth's legitimacy, and even to graft it on the undeniable falsehood of that tale ; as if it had been purposely fabricated to delude the people, by setting them on a wrong scent. See, also, another libel of the same class, p. 197. Though Monmouth's illegitimacy is past all question, it has been observed by Han-is, that the Princess of Orange, in writing to her brother about Mrs. Waters in 1655, twice names her as his wife. — Thurloe, i., 665, quoted in Han-is's Lives, iv., 168. But though this was a scandalous indecen- cy on her part, it proves no more than that Charles, like other young men in the heat of passion, was foolish enough to give that appellation to his mis- tress, and that his sister humored him in it. Sidney mentions a strange piece of Monmouth's presumption. 'When he went to dine with the 476 CONSTITUTIOXAL HISTORY OF EXGLAXD [Chap. XIL Tf any apology can be made for the en- courngement given by some of the Whig party (for it was by no means general) to the pretensions of Monmouth, it must be found in their knowledge of the king's affec- tion for him, which furnished a hope that he might more easily be brought in to the exclusion of his brother for the sake of so beloved a child than for the Prince of Or- ange ; and doubtless there was a period when Charles's acquiescence in the Exclu- sion did not appear so unattainable as, from his subsequent line of behavior, we are apt to consider it. It appears from the recent- ly published life of James, that in the au- tumn of 1680 the embarrassment of the king's situation, and the influence of the Duchess of Portsmouth, who had gone over to the Exclusionists, made him serious- ly deliberate on abandoning his brother.* Unsteadiness Whether from natural instability of the king, judgment, from the steady ad- herence of France to the Duke of York, or from observing the great strength of the Tory party in the House of Lords, where the bill was rejected by a majority of 63 to 30, he soon returned to his former disposi- tion. It was long, however, before he ti-eat- ed James with perfect cordiality. Conscious of his own insincerity in religion, which the duke's bold avowal of an obnoxious creed seemed to reproach, he was provoked at bearing so much of the odium, and incurring so many of the difficulties, which attended a profession that he had not ventured to make. He told Hyde, before the dissolu- tion of the Parliament of 1680, that it would not be in his power to protect his brother any longer, if he did not conform and go to church. f Hyde himself, and the duke's city in October, 1680, it was remarked that the bar. by which the heralds denote ille^timacy, had been taken off the royal arms on his coach. — Let- ters to Saville, p. 54. * Life of James, 592, et post. Compare Dal- rymple, p. 265, et post. Barillon was evidently of opinion that the kint? would finally abandon his brother. Sunderland joined the Duchess of Ports- mouth, and was one of the thirty peers who voted for the bill in November, 1680. James charges Godolphin, also, with deserting him, p. 615. But his name does not appear in the protest signed by twentj'-five peers, though that of the pri\-y seal, Lord Anglesea, does. The Duchess of Portsmouth sat near the Commons at Stafford's trial, " dispens- ing her sweetmeats and gracious looks among them."— P. 638. t Life of James, p. 657. other friends, had never ceased to urge him on this subject. Their importunity was renewed by the king's order, even after the dissolution of the Oxford Parliament ; and it seems to have been the firm persuasion of most about the court that he could only be preserved by conformity to the Protes- tant religion. He justly apprehended the consequences of a refusal ; but, inflexibly conscientious on this point, he braved what- ever might arise from the timidity or disaf- fection of the ministers and the selfish fickle- ness of the king. In the apprehensions excited by the king's unsteadiness and the defection of the Duch- ess of Portsmouth, he deemed his fortunes so much in jeopardy as to have resolved on exciting a civil war rather than yield to the Exclusion. Hehad already told Barillon that the royal authority could be re-established by no other means.* The Episcopal party in Scotland had gone such lengths that they could hardly be safe under any other king- The Catholics of England were of course devoted to him. With the help of these, he hoped to show himself so formidable that Charles w'ould find it his interest to quit that cowardly line of politics to which he was sacrificing his honor and affections. Louis, never insensible to any occasion of render- ing England weak and miserable, directed his ambassador to encourage the duke in this guilty project with the promise of as- sistance, f It seems to have been prevent- ed by the wisdom or public spirit of Church- ill, who pointed out to Barillon the absurdity of supposing that the duke could stand by himself in Scotland. This scheme of light- ing up the flames of civil war in three king- doms, for James's private advantage, de- serves to be more remarked than it has hitherto been at a time when his apologists seem to have become numerous. If the designs of Russell and Sidney for the pres- ervation of their country's liberty are blamed ias rash and unjustifiable, what name shall we give to the project of maintaining the pretensions of an individual by means of re- bellion and general bloodshed ? It is well known that those who took a concern in the maintenance of religion and * n est persuade que I'autorite royale ne se pent retablir en Angleterre que par une guerre civile, Aug. 19, 16S0.— Dalrj-mple, 265. t Dalrj-mple, 277. Nov., 16S0. Cha. 11.-1673-85.] FKOM HENRY VII. TO GEORGE 11. 477 liberty were much divided as to the best ex- pedients for securing them ; some, who thought the Exchisiou too violent, danger- ous, or impracticable, prefeiTing the enact- ment of limitations on the prerogatives of a Catholic king. This had begun, in fact, from the court, who passed a bill through the House of Lords in 1677, for the securi- ty, as it was styled, of the Protestant relig- ion. This provided that a declaration and oath against transubstantiation should be ten- dered to every king within fourteen days after his accession ; that, on his refusal to take it, the ecclesiastical benefices in the gift of the crown should vest in the bishops, except that the king should name to every vacant see one out of three persons pro- posed to him by the bishops of the province. It enacted, also, that the children of a king refusing such a test should be educated by the archbishop and two or three more pre- lates. This bill dropped in the Commons ; and Marvell speaks of it as an insidious strat- agem of the ministiy.* It is more easy, however, to give hard names to a measure originating with an obnoxious government, than to prove that it did not afford a consid- erable security to the Established Church, and impose a very remarkable limitation on the prerogative. But tlie opposition in the House of Commons had probably conceived their scheme of exclusion, and would not hearken to any compromise. As soon as the Exclusion became the topic of open dis- cussion, the king repeatedly ofiered to grant every security that could be demanded con- sistently with the lineal succession. Hollis, Halifax, and, for a time, Essex, as well as Expedients s®^^''*' eminent men in the Low- to avoid the er House, were in favor of limita- ^ tions;f but those which they in- * Marveir.s Growth of Popery, in State Tracts, temp. Car. II., p. 98. Pari. Hist., 853. The sec- ond reading was carried by 127 to 88. Sergeant Maynard, who was probably not in the secrets of his party, seems to have been surprised at their opposition. An objection with Marvell, and not by any means a bad one, would have been, that the children of the royal family were to be con- signed for education to tlie sole government of bishops. The Duke of York, and thirteen other peers, protested against this bill, not all of them from the same motives, as may be collected from their names.— Lords' Journals, 13th and 15th of March, 1679. t Lords Russell and Cavendish, Sir W. Coven- try, and Sir Thomas Littleton, seem to have been tended to insist upon were such encroach- ments on the constitutional authority of the crown, that, except a title and revenue, which Charles thought more valuable than all the rest, a popish king would enjoy no one attribute of royalty. The king himself, on the 30th of April, 1C79, before the heats on the subject had become so violent as they were the next year, offered not only to se- cure all ecclesiastical preferments from the control of a popish successor, but to provide that the Parliament in being at a demise of the crown, or the last that had been dis- solved, should immediately sit and be indis- soluble for a certain time ; that none of the privy council, nor judges, lord-lieutenant, deputy-lieutenant, nor officer of the navy, should be appointed during the reign of a Catholic king, without consent of Parlia- ment. He oflTered, at the same time, most readily to consent to any further provision that could occur to the wisdom of Parlia- ment, for the security of religion and liberty consistently with the right of succession. Halifax, the eloquent and successful oppo- nent of the E xclusion, was the .avowed cham- pion of limitations. It was proposed, in ad- dition to these offers of the king, that the duke, in case of his accession, should have no negative voice on bills ; that he should dispose of no civil or military posts without the consent of Parliament ; that a council of forty-one, nominated by the two Houses, should sit permanently during the recess or interval of Parliament, with power of ap- pointing to all vacant offices, subject to the future approbation of the Lords and Com- mons.* These extraordinary innovations would, at least for the time, have changed our constitution into a republic, and justly appeared to many persons more revolution- ary than an alteration in tlie course of suc- cession. The Duke of York looked on them with dismay ; Charles, indeed, privately de- clared that he would never consent to such infringements of the prerogative. f It is not, however, easy to perceive how he could have escaped from the necessity of adhering in favor of limitations. — Lord J. Russell, p. 42. Ralph, 446. Sidney's Letters, p. 32. Temple and Shaftesbury, for opposite reasons, stood alone in the council against the scheme of limitations. — Temple's Memoirs. * Commons' Journals, 23d of Nov., 1630, 8th of Jan., 1681. t Life of James, 634, 671. Dalrymple, p. 307. 478 CONSTITUTIONAL HISTORY OF ENGLAND [Chap. XIL to his own propositions, if the House of Commons would have relinquished the Bill of Exclusion. The Prince of Orange, who was doubtless, in secret, not averse to the latter measure, declared strongly against the plan of resh-ictions, which a Protestant suc- cessor might not find it practicable to shake off. Another expedient, still more ruinous to James than that of limitations, was what the court itself suggested in the Oxford Par- liament, that, the duke retaining the title of king, a regent should be appointed, in the person of the Princess of Orange, with all the royal prerogatives ; nay, that the duke, with his pageant crown on his head, should be banished from England during his life.* This proposition, which is a gi-eat favorite with Burnet, appears liable to the same ob- jections as were justly urged against a sim- ilar scheme at the Revolution. It was cer- tain that in either case .Tames would attempt to obtain possession of power by force of arms ; and the law of England would not treat very favorably those who should resist an acknowledged king in his natural capaci- ty, while the statute of Heniy VII. would, legally speaking, afford a security to the ad- herents of a de facto sovereign. Upon the whole, it is very unlikely, when we look at the general spirit and temper of the nation, its predilection for the ancient laws, its dread of commonwealth and fanat- ical principles, the tendency of the upper ranks to intrigue and corruption, the influ- ence and activity of the Church, the bold counsels and haughtj' disposition of James himself, that either the Exclusion, or such extensive limitations as were suggested in lieu of it, could have been caiTied into ef- fect with much hope of a durable settlement. It would, I should conceive, have been prac- ticable to secure the independence of the " Dalrymple, p. 301. Life of James, G60, 671. The duke gave himself up for lost when he heard of the clause iu the king's speech declaring his readiness to hearken to any expedient but the Ex- clusion. Birch and Hampden, he says, were in favor of this ; but Eitzlian-is's business set the House in a flame, and determined them to persist in their former scheme. Reresby says, p. 1.9, con- finned by Pari. Hist., 132, it was supported by Sir Thomas Littleton, who is said to have been origi- nally against the Bill of Exclusion, as wellis Sir WiUiam Coventry. — Sidney's Letters, p. 32. It ■was opposed by Jones, Winnington, Booth, and, if tlie Parliamentary History be right, by Hampden and Birch. judges, to exclude unnecessary placemen and notorious pensioners from the House of Commons, to render the distribution of money among its members penal, to remove from the Protestant Dissenters, by a full toleration, all temptation to favor the court, and, above all, to put down the standing army. Though none, perhaps, of these provisions would have prevented the at- tempts of this and the next reign to intro- duce arbitrary power, they would have ren- dered them still more grossly illegal ; and, above all, they would have saved that un- happy revolution of popular sentiment which gave the court encouragement and tempo- rary success. It was in the year 1679 that the words Whig and Toi-y were first heard in „ , ® *' Names of their application to English factions ; whig and and, though as senseless as any cant terms that could be devised, they became in- stantly as familiar in use as they have since continued. There were then, indeed, ques- tions in agitation which rendered the distinc- tion more broad and intelligible than it has generally been in later times. One of these, and the most important, was the Bill of Ex- clusion ; in which, as it was usually debated, the Republican principle, that all positive institutions of society are in order to the general good, came into collision with that of monarchy, which rests on the maintenance of a royal hne, as either the end, or at least the necessary means, of lawful government ; but, as the Exclusion was confessedly among those extraordinaiy measures to which men of Torj' principles are sometimes compelled to resort in great emergencies, and which no rational Whig espouses at any other time, we shall better, perhaps, discern the foima- tion of these grand political sects in the pe- titions for the sitting of Parliament, and in the counter addresses of the opposite party. In the spring of 1679, Charles established a new privy council, by the ad- New coun- vice of Sir William Temple, con- ^'^ |'™ viii- sisting, in gi-eat i)art, of those emi- "am Temple, nent men in both houses of Parliament who had been most prominent in their opposition to the late ministry.* He publicly declared * Temple's Memoirs. He says their revenues in land or offices amounted to £300,000 per annum, whereas those of the House of Commons seldom exceeded £400,000. The king objected much to admitting Halifax ; but himself proposed Shaftea- Cha. II.— 1C73-S5.] FROM HENEY V II. TO GEORGE II. 479 his resolution to govern entirely by the ad- vice of this council and that of Pailiament. The Duke of York was kept in what seemed a sort of exile at Brussels.* But the just suspicion attached to the king's character prevented the Commons from placing much confidence in this new ministry, and, as frequently happens, abated their esteem for those who, with the purest intentions, had gone into the council. f They had soon cause to perceive that their distrust had not been excessive. The ministers were con- stantly beaten in the House of Lords ; an almost certain test, in our government, of the court's insincerity, t The Parliament was first prorogued, then dissolved ; against the advice, in the latter instance, of the ma- jority of that council by whom the king had bury, much against Temple's wishes. The fuuds in Holland rose on the news. Barillou was dis- pleased, and said it was making " des etats, et non des conseils ;" which was not witliout weight, for the king had declared he would take no measure, nor even choose any uew counselor, without their consent. But the extreme disadvantage of the position in which this placed the crown rendered it absolutely certain that it was not submitted to with sincerity. Lady Portsmouth told Barillon the new ministry was formed in order to get money from Parliament. Another motive, no doubt, was to prevent the Exclusion Bill. * Life of James, 558. On the king's sudden ill- ness, Aug. 22, 1679, the ruling ministers, Halifax, Sunderland, and Essex, alarmed at the anarchy which might come on his death, of which Shaftes- bury and Monmouth would profit, sent over for the duke, but soon endeavored to make him go into Scotland ; and, after a straggle against the king's tricks to outwit them, succeeded in this object. — Id., p. 570, et post. t Temple. Reresby, p. 89. " So trae it is," he Bays, "that there is no wearing the court and coun- try Uvery together." Thus, also, Algenion Sidney, in his letters to Saville, p. 16 : " The king certainly inclines not to be so stiff as foi-merly in advancing only those that exalt prerogative ; but the Earl of Essex, and some others that are coming into play thereupon, can not avoid being suspected of having intentions different from what they have hitherto professed." He ascribed the change of ministry at this time to Sunderland. "If he and two more [Essex and Halifax] can well agree amoug them- selves, I believe they will h ave the management of almost all business, and may bring much honor to themselves and good to our nation," April 21, 1679. But he writes afterward, Sept. 8, that Hal- ifax and Essex were become very unpopular, p. 50. "The bare being preferred," says Secretary Coventry, "raaketh some of them suspected, though not criminal."— Lord J. Russell's Life of Lord Rus- sell, p. 90. t See the protests in 1679, passim. pledged himself to be directed. A new Parliament, after being summoned to meet in October, 1679, was prorogued , ' ' I o Long proro- for a twelvemonth without the giuiim of avowed concurrence oi any mem- ber of the council. Lord Russell, and oth- ers of the honester party, withdrew from a board where their presence was only asked in mockery or deceit; and the whole spe- cious scheme of Temple came to nothing before the conclusion of the year which had seen it displayed.* Its author, chagrined at the disappointment of his patriotism and his vanity, has sought the causes of failure in the folly of Monmouth and perverseness of Shaftesbury. He was not aware, at least in their full extent, of the king's intrigues at this period. Charles, who had been induced to take those whom he most disliked into his council, with the hope of obtaining mon- ey from Parliament, or of parrying the Ex- clusion Bill, and had consented to the Duke of York's quitting England, found himself inthralled by ministers whom it could neither cori'upt nor deceive ; Essex, the firm and temperate friend of constitutional liberty in power as he had been out of it, and Halifax, not yet led away by ambition or resentment from the cause he never ceased to approve. He had recourse, therefore, to his accus- tomed refuge, and humbly implored the aid of Louis against his own council and Parlia- ment. He conjured his patron not to lose this opportunity of making England forever dependent upon France. These are his OAvn words — such, at least, as Barillon at- ti'ibutes to him.f In pursuance of this over- ture, a secret treaty was negotiated between the two kings, whereby, after a long hag- gling, Charles, for a pension of 1,000,000 livres annually during three years, obliged himself not to assemble Parliament during that time. This negotiation was broken off, through the apprehensions of Hyde and Sunderland, who had been concerned in it, about the end of November, 1G79, before the long prorogation which is announced in the Gazette by a proclamation of December * Temple's Memoirs. Life of James, 5&1. [An article in the London Gazette, Jan. 30, 1C80. is rather amusing. " This evening the Lord Russell, the Lord Cavendish, Sir Henry Capel, and Mr. Powle, prayed his majesty to give them leave to withdraw from the council-board. To which his majesty was pleased to answer, ' With all his heart.' "—1845.] t Dalrj rople, p. 230, 237. 480 CONSTITUTIONAL HISTORY OF ENGLAND [Chap. XIL 11th ; but, the resolution having been al- ready taken not to permit the meeting of Parliament, Chai'les persisted in it as the only means of escaping the Bill of Exclusion, even when deprived of the pecuniary as- sistance to which he had trusted. Though the king's behavioi- on this occa- sion exposed the fallacy of all projects for reconciliation with the House of Commons, it was very well calculated for liis own ends ; nor was there any part of his I'eign where- in he acted with so much prudence, as from this time to the dissolution of the Oxford Parliament. The scheme concerted by his adversaries, and ah'eady put in operation, of pouring in petitions from every pait of the kingdom for the meeting of Parliament, he checked in the outset by a proclamation, artfully drawn up by Chief-justice North, which, while it kept clear of any thing so palpably unconstitutional as a prohibition of petitions, sei-ved the purpose of manifesting the king's dislike to them, and encouraged the magistrates to ti'eat all attempts that way as seditious and illegal, while it drew over the neutral and lukewarm to the safer and stronger side.* Then were first ranged against each other the hosts of Whig and Tory, under their banners of libertj' or loy- alty ; each zealous, at least in profession, to maintain the established Constitution, but the one seeking its security by new maxims of government, the other by an adherence to the old.j It must be admitted that peti- Pctitions and tions to the king from bodies of addresses. jjjg subjects, intended to advise or influence him in the exercise of his un- doubted prerogatives, such as the time of calling Pai-liament together, familiar as they may now have become, had no pi'ecedent, except one in the dark year 1640, and were repugnant to the ancient principles of our monarchy. The cardinal maxim of Tory- ism is, that the king ought to exercise all his * See Roger North's account of this court sti'at- agem. Exameu of Kennet, 546. The proclama- tion itself, however, iu the Gazette, 12th of Dec, 1679, is more strongly worded than we should ex- pect from North's account of it, and is hy no means limited to tumultuous petitions. t [The name of "V\'^hig, meaning sour milk, as is well known, is said to have originated iu Scotland in 1648, aud was given to those violent Covenant- ers who opposed the Duke of Hamilton's invasion of England in order to restore Charles 1. — Somers Tracts, viii., 349. Tory was a similar nickname for some of the wild Irish in Ulster.— 1845.] lawful prerogatives, without the interfer- ence, or unsolicited advice, even of Parlia- ment, much less of the people. These nov- el efforts, therefore, were met by addresses from most of the gi-and-juries, from the ma- gistrates at quarter sessions, and from many corporations, expressing not merely their \ entire confidence in the king, but their abhor' ' rence of the petitions for the assembling of ] Parliament ; a tenn which, having been casually used in one address, became the j watchword of the whole party.* Some I allowance must be made for the exertions I made by the court, especially through the j judges of assize, whose charges to gi-and-ju- ries were always of a political nature ; yet I there can be no doubt that the strength of ' the Tories manifested itself beyond expect- I ation. Sluggish and silent in its fields, like j the animal which it has taken for its type, the deep-rooted loyalty of the English gen- ! try to the crown may escape a superficial observer, till some circumstance calls forth an indignant and furious energy. The tem- per shown in 1680 was not according to what the late elections would have led men to expect, not even to that of the next elec- tions for the Parliament at Oxford. A large majority returned on both these occasions, and that in the principal counties as much as in corporate towns, w^ere of the Whig principle. It appears that the ardent zeal against popery in the smaller freeholders must have overpowered the natural influence of the superior classes. The middhng and lower orders, particularly in towns, were clamorous against the Duke of York and the evil counselors of the crown. But with the country gentlemen, popeiy was scarce a more odious word than fanaticism ; the mem- oiy of the late reign and of the usurpation was still recent, and in the violence of the Commons, in the insolence of Monmouth and Shaftesbury, in the bold assaults upon hereditaiy right, they saw a faint image of that confusion which had once impoverished find humbled them. Meanwhile, the king's dissimulation was quite sufl^cient for these simple Loyalists; the very delusion of the Popish Plot raised his name for religion in their eyes, since his death was the declared aim of the conspirators ; nor did he fail to keep alive this favoi-able prejudice by letting that imposture take its course, and by en- * London Gazettes of 1680, passim. Cha. II.— 1673-85.] FROM HENRY Vn. TO GEORGE II. 481 forcing the execution of the penal laws against some unfortunate priests.* It is among the great advantages of a ... , , court in its contention with the as- Violence of the Com- serters of popular privileges, that it can employ a circumspect and dissembling policy, which is never found on the opposite side. The demagogues of fac- tion, or the aristocratic leaders of a numerous assembly, even if they do not feel the influ- ence of the passions they excite, which is rarely the case, are urged onward by their headstrong followers, and would both lay themselves open to the suspicion of unfaith- fulness, and damp the spirit of their party by a warj' and temperate course of proceeding. Yet that incautious violence, to which ill- judging men are tempted by the possession of power, must in every case, and especially where the power itself is deemed a usurpa- tion, cast them headlong. This was the fatal error of the House of Commons which met in October, 1680 ; and to this the king's triumph may chiefly be ascribed. The ad- di'esses declaratory of abhon'ence of peti- tions for the meeting of Parliament were doubtless intemperate with respect to the petitioners ; but it was preposterous to treat them as violations of pi-ivilege. A few prec- edents, and those in times of much heat and irregularity, could not justify so flagrant an encroachment on the rights of the private subject, as the commitments of men for a declaration so little affecting the constitu- tional rights and functions of Parliament. f The expulsion of Withens, their own mem- ber, for promoting one of these addresses, though a violent measure, came, in point of law, within their acknowledged authority. t But it was by no means a generally received opinion in that age, that the House of Com- mons had an unbounded jurisdiction, direct- ly or indirectly, over their constituents. The la\vyers, being chiefly on the side of • David Lewis vras executed at Usk for saying mass, Aug. 27, 1G79.— State Trials, vii., 256. Other instaaces occur in the same volume ; see especially p. 811, 839, 849, 857. Pemberton was more severe and unjust toward these unfortunate men than Scroggs. The king, as his brother tells us, came unwillingly into these severities to prevent worse. — Life of James, 583. t Journals, passim. North's Examen, 377, 561. { They went a little too far, however, when they actually seated Sir WiUiam Waller in Withens's place for W estmiuster. — Ralph, 514. H H prerogative, inclined at least to limit very greatly this alleged power of commitment for breach of privilege or contempt of the House. It had very rarely, in fact, been exerted, except in cases of serving legal pro- cess on members or other molestation, be- fore the Long Parliament of Charles I. ; a time absolutely discredited by one party, and confessed by every reasonable man to be full of innovation and violence. That the Commons had no right of judicature was admitted ; was it compatible, many might urge, to principles of reason and justice, that they could, merely by using the words contempt or breach of privilege in a warrant, deprive the subject of that liberty which the recent statute of Habeas Corpus had se- cured against the highest ministers of the crown ? Yet one Thompson, a clergyman of Bristol, having preached some virulent sermons, wherein he had traduced the mem- ory of Hampden for refusing the payment of ship-money, and spoken disrespectfully of Queen Elizabeth, as well as insulted those who petitioned for the sitting of Par- liament, was sent for in custody of the ser- geant to answer at the bar for his high misdemeanor against the privileges of that House ; and was afterward compelled to find security for his forthcoming to answer to an impeachment voted against him on these strange chai-ges.* Many others were brought to the bar, not only for the crime of abhorrence, but for alleged misdemean- ors still less affecting the privileges of Par- liament, such as remissness in searching for papists. Sir Robert Cann, of Bristol, was sent for in custody of the sergeant-at-arms, for publicly declaring that there was no popish, but only a Pi-esbyterian plot. A general panic, mingled with indignation, was diffused through the country, till one S taw- ell, a gentleman of Devonshire, had the courage to refuse compliance with the speak- er's warrant ; and the Commons, who hes- itated at such a time to risk an appeal to the ordinary magistrates, were compelled to jet this contumacy go unpunished. If, indeed, we might believe the Journals of the House, Stawell was actually in custody of the sergeant, though allowed a month's time on account of sickness. Tliis was most probably a subterfuge to conceal the truth of the case.f Jouiuals, Dec. 24, 1680. t Pari. Hist., i., 174. 482 CONSTITUTIONAL HISTORY OF ENGLAND [Chap. XIL These encroachments under the name of privilege were exactly in the spirit of the Long Parliament, and revived too forcibly the recollection of that awful period. It was commonly in men's mouths, that 1641 was come about again. There appeared, indeed, for several months, a very imminent danger of civil war. I have already men- tioned the projects of the Duke of York, in case his brother had given way to the Ex- clusion Bill. There could be little reason to doubt that many of the opposite leaders were ready to try the question by arras. Reresby has related a conversation he had with Lord Halifax immediately after the rejection of the bill, which shows the ex- pectation of that able statesman, that the differences about the succession would end in civil war.* The just abhorrence good men entertain for such a calamity excites their indignation against those who conspic- uously bring it on ; and however desirous some of the court might be to strengthen the prerogative by quelling a premature re- bellion, the Commons were, in the ej^es of the nation, far more prominent in accelera- ting so terrible a crisis. Their votes in the session of November, 1680, were marked by the most exti-avagant factiousness. f Oxford Par- Their conduct in the short Par- liament, liament held at Oxford in March, 1681, served stiU more to alienate the peace- able part of the community. That session of eight days was marked by the rejection of a proposal to vest all effective power dur- * Reresby 's Memoirs, 106. Lord Halifax and lie agreed, be says, on consideration, that the court -j)arty were not only the most numerons, but the most active and wealthy part of the nation. t It was carried by 219 to 95 (17th of Nov.), to address the king to remove Lord Halifax from his councils and presence forever. They resolved, nem. con., that no member of that House should accept of any office or place of profit from the crown, or any promise of one, during such time as he should continue a member ; and that all offend- ers herein should be expelled, 30th of Dec. They passed resolutions against a number of persons by name, whom they suspected to have advised the Iving not to pass the Bill of Exclusion, 7th of Jan., 1630. They resolved unanimously (10th of Jan.), that it is the opinion of this House that the city of London was burned in the year 1666 by the papists, designing thereby to introduce poperj- and arbi- trary power into this kingdom. They were going on with more resolutions in the same spirit, when the usher of the black rod appeared to prorogue them.— Pari. Hist. ing the Duke of York's life ra a regent, which, as has been already observed, was by no means a secure measure, and by a much less justifiable attempt to screen the author of a treasonable libel from punish- ment under the pretext of impeaching him at the bar of the Upper House. It seema difificult not to suspect that the secret in- stigations of Barillon, and even his gold, had considerable influence on some of those who swayed the votes of this Parliament. Though the impeachment of Fitzharris, to which I have just alluded, was impeachment in itself a mere work of tempo- ttZToT" rary faction, it brought into dis- constitutional, cussion a considerable question in our con- stitutional law, which deserves notice, both on account of its importance, and because a popular writer has advanced an untenable proposition on the subject. The Fitzharris : Commons impeached this man of 'mpeacbed. high treason. The Lords voted that he ' should be proceeded against at common law. I It was resolved, in consequence, by the Low- er House, " that it is the undoubted right ' of the Commons, in Parliament assembled, j to impeach before the Lords in Parliament any peer or commoner for treason, or any other crime or misdemeanor ; and that the - refusal of the Lords to proceed in Parlia- I ment upon such impeachment is a denial j of justice, and a violation of the constitution of Parliament."* It seems, indeed, difficult to justify the determination of the Lords. Certainly the declaration in the case of Sir Simon de Bereford, who, having been ac- cused by the king, in the fourth year of Edward III., before the Lords, of partici- pating in the treason of Roger Mortimer, that noble assembly protested, '• with thn assent of the king in full Parliament, that albeit they had taken upon them, as judges of the Parliament in the presence of the king, to render judgment, yet the peers, who tlien were or should be in time to come, were not bound to render judgment upon others than peers, nor had power to do. so ; and that the said judgment thus ren- dered should never be drawn to example or consequence in time to come, whereby the said peers of the land might be charged to judge others than their peers, contrary to the laws of the land ;" ceitainly, I say, this I declaration, even if it amounted to a stat- * Commons' Joamals, March 26, 1681. Cha. II.— 1673-85.] FROM HENRY VU. TO GEORGE II. 483 ute, concerning which there has been some question,* was not necessarily to be inter- \ prcted as applicable to impeachments at the suit of the Commons, wherein the king is no ways a party. There were several prec- edents in the reign of Richard II. of such impeachments for treason. There had been more than one in that of Charles I. The objection, indeed, was so novel, that Chief- justice Scroggs, having been impeached for ti'eason in the last Parliament, though he applied to be admitted to bail, had never in- sisted on so decisive a plea to the jurisdic- tion. And if the doctrine, adopted by the Lords, were to be carried to its just conse- quences, all impeachment of commoners must be at an end ; for no distinction is tak- en in the above declaration as to Bereford betvs-een treason and misdemeanor. The peers had indeed lost, except during the session of Parliament, their ancient privi- lege in cases of misdemeanor, and were subject to the verdict of a jury ; but the principle was exactly the same, and the right of judging commoners upon impeach- ment for corruption and embezzlement, which no one called in question, was as much an exception from the ordinary rules of law as in the more rare case of high treason. It is hardly necessaiy to observe, that the 29th section of Magna Charta, which establishes the right of trial by jury, is by its express language solely applicable to the suits of the crown. This very dangerous and apparently un- founded theoiy, broached upon the occasion of Fitzharris's impeachment by the Earl of Nottingham, never obtained reception ; and was rather intimated than avowed in the vote of the Lords, that he should be pro- ceeded against at common law. But after the Revolution, the Commons having im- peached Sir Adam Blair and some others of high ti'eason, a committee was appointed to search for precedents on this subject, and after full deliberation, the House of Lords came to a resolution that they would pro- ceed on the impeachments. f The inad- * Pari Hist., ii., 54. Lord Hale doubted whether this were a statute; but the judges, in 1689, on being consulted by the Lords, inclined to think that it was one ; argnmg, I suppose, from the words " in full Parliament," which have been heJd to im- ply the presence and assent of the Commons. t Hatsell's Precedents, iv., 54, and Appendix, 347. State Trials, viii., 236, and xii., 1216. vertent position, thei'efore, of Blackstone,* that a commoner can not be impeached for high treason, is not only difficult to be sup- ported upon ancient authorities, but contra- ry to the latest determination of the su- preme tribunal. No satisfactory elucidation of the strange libel for which FitzhaiTis suffer- Proceedings ed death has yet been afforded. Selhury There is much probability in the ""d College, supposition that it was written at the desire of some in the court, in order to cast odium on their adversaries ; a very coinmon strat- agem of unscrupulous partisans. f It caus- ed an impression unfavorable to the Whigs in the nation. The court made a dextrous use of that extreme credulity, which has been supposed characteristic of the English, though it belongs at least equally to every other people. They seized into their hands the very engines of delusion that had been turned against them. Those peijured wit- nesses, whom Shaftesbury had hallooed on through all the infamy of the Popish Plot, were now arrayed in the same court to swear treason and conspiracy against him. J * Commentaries, vol. iv., c. 19. 1 Ralph, 564, et post. State Trials, 223, 427. North's Examen, 274. Fitzharris was an Irish papist, who had evidently had interviews with the king through Lady Portsmouth. One Hawkins, afterward made dean of Chichester for his paii>s, published a narrative of this case full of falsehoods. t State Trials, viii., 759. Roger North's remark on this is worthy of him : " Having sworn false, as it is manifest some did before to one purpose, it is more likely they swore true to the contrary." — Exameu, p. 117. And Sir Robert Sawyer's ob- servation to the same effect is also worthy of liim. On College's trial, Oales, in his examination for the prisoner, said, that Turberville had changed sides. Sawyer, as coansel for the crown, answer- ed, "Dr. Gates, Mr. Turberville has not changed sides ; you have ; he is still a witness for the king, you are against him." — State Trials, viii., 639. The opposite party were a httle perplexed by the necessity of refuting testimony they had relied upon. In a dialogue, entitled Ignoramus Vindi- cated, it is asked, why were Dr. Oates and others believed against the papists ? and the best answer the case admits is given: "Because his and their testimony was backed by that undeniable evidence of Coleman's papers, Godfrey's murder, and a thousand other pregnant circumstances, which makes the case much diflferent from that when people of veiy suspected credit swear the gross- est improbabilities." But the same witness, it is urged, had lately been believed against the papists. " What ! then," replies the advocate of Shaftes- bury, " may not a man be very honest and credi- 484 CONSTITUTIONAL HISTOEY OF ENGLAND [Chap. XII. Though he escaped by the resoluteness of his gi-and-jury, who refused to find a bill of indictment on testimony which they pro- fessed themselves to disbelieve, and which was probably false, yet this extraordinary deviation from the usual practice did hann rather than otherwise to the general cause of his faction. The judges had taken care that the witnesses should be examined in open court, so that the jury's partiality, should they reject such positive testimony, might become glaring. Doubtless it is, in ordinaiy cases, the duty of a gi-and-juror to find a bill upon the direct testimony of wit- nesses, where they do not contradict them- selves or each other, and where their evi- dence is not palpably incredible or contrary to his own knowledge.* The oath of that inquest is forgotten, either where they ren- der themselves, as seems too often the case, the mere conduit-pipes of accusation, put- ting a prisoner in jeopardy upon such slen- der evidence as does not call upon him for a defense, or where, as we have sometimes known in political causes, they frustrate the ends of justice by rejecting indictments which are fully substantiated by testimony. Whether the grand-jury of London, in their celebrated ignoramus on the indictment pre- feiTed against Shaftesbury, had sufficient grounds for their incredulitj', I will not pre- tend to determine.! There was probably ble at one time, and six months after, by necessi- ty, subornation, malice, or twenty ways, become a notorious villain ?" * The true question for a grand-juror to ask him- self seems to be this : Is the evidence such as that, if the prisoner can prove nothing to the contrarj', he ought to be convicted ? However, where any considerable doubt exists as to this, as a petty juror ought to acquit, so a grand-juror ought to find the indictment. t Roger North and the prerogative writers in general speak of this inquest as a scandalous piece of perjurj-, enough to justify the measures soon af- terward taken against the citj' ; but Ralph, who, at this period of historj-, is very impartial, seems to think the jury warranted by the absurditj- of the depositions. It is to be remembered that the petty jnries had shown themselves liable to intimidation, and that the bench was sold to the court. In mod- em times, such an ignoramus could hardly ever be justified. There is strong reason to believe that the court had recourse to subornation of evidence against Shaftesbury. — Ralph, 140, et post. And the witnesses were chiefly low Irishmen, in whom be was not likely to have placed confidence. As to the association found among Shaftesburj-'s pa- pel's, it was not signed by liimself, nor, as I con- no one man among them who had not im- plicitly swallowed the tales of the same witnesses in the trials for the Plot. The nation, however, in general less bigoted, or at least more honest in tlieir bigotrj', than those London citizens, was staggered by so many depositions to a traitorous conspiracy, in those who had pretended an excessive loyalty to the king's person.* Men unac- customed to courts of justice are naturally prone to give credit to the positive oaths of witnesses. They were still more persuad- ed when, as in the trial of College at Ox- ford, they saw this testimony sustained by the approbation of a judge (and that judge a decent person who gave no scandal), and confirmed by the verdict of a jury. The gross iniquity practiced toward the prisoner in that trial was not so generally bruited as his conviction. f There is in England a re- markable confidence in our judicial proceed- ings, in part derived firom their publicity, and partly from the indiscriminate manner in which jurors are usually summoned. It must be owned that the administration of the last two Stuarts was calculated to show how easily this confiding temper might be the dupe of an insidious ambition. The king's declaration of the reasons that induced him to dissolve the last Parlia- ceive, treasonable, only binding the associatora to oppose the Duke of York in case of his coming to the crown. — State Trials, viii., 786. See, also, 827 and 835. * If we may believe James II., the populace hooted Shaftesbury when he was sent to the Tow- er.— Macpherson, 124. Life of James, 683. This was an improvement on the odit damnatos. They rejoiced, however, much more, as he owns, at the ignoramus, p. 714. t See College's case in State Trials, viii.. 549 ; and Hawles's remarks on it, 723. Ralph, 626. It is one of the worst pieces of judicial iniquity that we find in the whole collection. The written in- stiuctions he bad given to his counsel before the trial were taken away from him, in order to learn the grounds of his defense. North and Jones, the judges before whom he was tried, afforded him no protection ; but besides this, even if the witnesses had been credible, it does not appear to me that the facts amounted to treason. Roger North out- does himself in his justification of the proceedings on this trial. — Examen, p. 587. What would this man have been in power, when he writes thus in a sort of proscription twenty years after the Rev olution ! But in justice it should be observed, thai his portraits of North and Jones — Id., 512, and 517 — are excellent specimens of his inimitable talent for Dutch painting. Cha. II.— 1073-83.] FROM HENRY VII. TO GEORGE II. 485 Triumph of ment, being a manifesto against | the court, ^^e late majority of the House of Commons, was read in all cburches. The clergy scarcely waited for this pretext to take a zealous part for the crown. Eveiy one knows their influence over the nation in any cause which they make their own. They seemed to change the war against liberty into a crusade. They i-e-echoed from every pulpit the strain of passive obe- dience, of indefeasible hereditary right, of the divine origin and pati-iarchal descent of monarchy. Now began again the loyal ad- dresses, more numerous and ardent than in the last year, which overspread the pages of the London Gazette for many months. These effusions stigmatize the measures of the three last Parliaments, dwelling espe- cially on their arbitrarj' illegal votes against the personal liberty of the subject. Their language is of course not alike ; 5'et amid all the ebullitions of triumphant loyalty, it is easy in many of tliem to perceive a lurk- ing distrust of the majesty to which they did homage, insinuated to the reader in the marked satisfaction with which they allude to the king's promise of calling frequent Parliaments and of governing by the laws.* The Whigs, meantime, so late in the hey- day of their pride, lay, like the fallen angels, prostrate upon the fiery lake. The scofts and gibes of libelers, who had trembled be- fore the resolutions of the Commons, were showered upon their heads. They had to fear, what was much worse than the insults of these vermin, the perjuries of mercena- ly informers suborned by their enemies to charge false conspiracies against them, and sure of countenance from the contaminated benches of justice. The court, with an art- ful policy, though with detestable wicked- ness, secured itself against its only gi-eat danger, the suspicion of popery, by the sac- rifice of Plunket, the titular archbishop of Dublin. t The execution of this worthy * London Gazette, 1681, passim. Ralph, 592, has spoken too strongly of their servility, as if they showed a disposition to give up altogether every right and privilege to tlie crown. This may be true in a verj- few instances, but is by no means their general tenor. They are exactly high Tory addresses, and nothing more. t State Trials, viii., 447. Chief-justice Pember- ton, by whom lie was tried, had strong prejudices against the papists, though well enough disposed to serve the court in some respects. and innocent person can not be said to have been extorted from the king in a time of great difficulty, like that of Lord Straffoid. He was coolly and deliberately permitted to suffer death, lest the current of loyalty, still sensitive and suspicious upon the account of religion, might be somewhat checked in' its course. Yet those who heap the epi- thets of merciless, inhuman, sanguinary, oa the Whig party for the impeachment of Lord Strafford, in whose guilt they fully believed, seldom mention, without the char- acteristic distinction of "good-natured," that sovereign who permitted the execution of Plunket, of whose innocence he was as- sured.* The hostility of the city of London, and * The king, James says in 1679, was convinced of the falsehood of the Plot, "while the seeming necessity of his affairs made this unfortunate prince, for so he may well be tenned in this conjuncture, think he could not be safe but by consenting every day to the execution of those he knew in his heart to be most innocent ; and as for that notion of let- ting the law take its course, it was such a piece of casuistry as had been fatal to the king his fa- ther," &c., 562. If this was blamable in 1679, how much more in 1681 ? Temple relates, that, having objected to leaving some priests to the law, as the House of Commons had desired in 1679, Halifax said he would tell ev- eiy one he was a papist, if he did not concur; and that the Plot must be treated as if it were true, whether it was so or not, p. 339 (folio edit.). A vile maxim indeed ! But as Halifax had never showed any want of candor or humanity, and vot- ed Lord Strafford not guilty next year, we may doubt whether Temple has represented this quite exactly. In reference to Lord Strafford, I will here notice that Lord John Russell, iii a passage deserting very high praise, has shown rather too much can- dor in censuring his ancestor (p. 140) on account of the support he gave (if in fact he did so, for the evidence seems weak) to the objection raised by the sheriffs. Bethell and Cornish, with respect to the mode of Strafford's execution. The king having remitted all the sentence except the beheading, these magistrates thought fit to consult the House of Commons. Hume talks of Russell's seconding this " barbarous scruple," as he calls it, and imputes it to faction ; but, notwithstanding the epithet, it is certain that the only question was between death by the cord and the ax ; and if Strafford had beea guilty, as Lord Russell was convinced, of a most atrocious treason, he could not desei-ve to be spared the more ignominious punishment. The truth is, which seems to have escaped both these writers, that if the king could remit a part of the sentence upon a Parliamentarj- impeachment, it might considerably affect the question whether he could not grant a pardon, which the Commons had denied. 486 CONSTITUTIONAL HISTORY OF ENGLAND [Chap. XIL Forfeiture of °^ Several other towns, toward the charter the court, degenerating, no doubt, of London, . . r i • j ^ • and of other iDto a lactious and indecent vio- plares. lence, gave a pretext for the most dangerous aggi'ession on public liberty that occurred in the present reign. The power of the democracy in that age resided chief- ly in the corporations. These returned, exclusively or principally, a majority of the representatives of the Commons. So long as they should be actuated by that ardent spirit of Protestantism and liberty which prevailed in the middling classes, there was little prospect of obtaining a Parliament that would co-operate with the Stuart scheme of government. The administration of jus- tice was very much in the hands of their magisti'ates, especially in Middlesex, where all juries are returned by the city sheriffs. It was suggested, therefore, by some crafty lawyers, that a judgment of forfeiture ob- tained against the corporation of London would not only demolish that citadel of in- solent rebels, but intimidate the rest of Eng- land by so striking an example. True it was, that no precedent could be found for the forfeiture of corporate privileges. But general reasoning was to sei"ve instead of precedents ; and there was a considerable analogy in the surrenders of the abbeys un- der Henry VIII., if much authority could be allowed to that transaction. An infor- mation, as it is called, quo warranto, was accordingly brought into the Court of King's Bench against the corporation. Two acts of the common council were alleged as suf- ficient misdemeanors to warrant a judgment of forfeiture ; one, the imposition of certain tolls on goods brought into the city markets, by an ordinance or by-law of their own ; the other, theii- petition to the king in De- cember, 1679, for the sitting of Parliament, and its publication throughout the countiy.* It would be foreign to the purpose of this work to inquire whether a corporation be in any case subject to forfeiture, the affirma- tive of which seems to have been held by courts of justice since the Revolution; or whether the exaction of tolls in their mar- kets, in consideration of their erecting stalls and standings, were within the competence of the city of London ; or, if not so, wheth- er it were such an offense as could legally * See this petition, Somers Tracts, viii., 144. incur the penalty of a total forfeiture and disfranchisement; since it was manifest that the crown made use only of this additional pretext in order to punish the corporation for its address to the king. The language, indeed, of their petition had been uncourtly, and what the adherents of prerogative would call insolent; but it was at the worst rather a misdemeanor for which the persons con- cerned might be responsible, than a breach of the trust reposed in the coi-poration. We are not, however, so much concerned to argue the matter of law in this question, as to I'emark the spirit in which the attack on this strong-hold of popular liberty was conceived. The Court of King's Bench pronounced judgment of forfeiture against the coi-poration ; but this judgment, at the request of the attorney -general, was only recorded ; the city continued, in appearance, to possess its corporate franchises, but upon submission to certain regulations, namely, that no mayor, sheriff, recorder, or other chief officer should be admitted until ap- proved by the king; that in the event of his twice disapproving their choice of a mayor, he should himself nominate a fit person, and the same in case of sheriffs, without waiting for a second election ; that the court of al- dermen, with the king's permission, might remove any one of their body ; that they should have a negative on the elections of common councilmen, and in case of disap- proving a second choice, have themselves the nomination. The corporation submitted thus to purchase the continued enjoyment of its estates, at the expense of its munici- pal independence ; yet, even in the prostrate condition of the Whig party, the question to admit these regulations was carried by no great majority in the common councils.* The city was of course absolutely subsei-y- ient to the court from this time to the Rev- olution. After the fall of the capital, it was not to be expected that towns less capable of de- fense should stand out. Informations quo warranto were brought against several cor- porations ; and a far greater number has- tened to anticipate the assault by voluntary surrenders. It seemed to be recognized as law by the judgment against London, that * State Trials, viii., 1039-1340. Ralph, 717. The majoritj' was but 104 to 86 ; a division honor- able to the spirit of the citizens. Cha. II.— 1673-85.J FROM HENRY VII. TO GEORGE II. 487 any irregularity or misuse of power in a cor- poration might incur a sentence of forfeit- ure ; and few could boast that they were invulnerable at eveiy point. The judges of assize in their circuits prostituted their influence and authority to forward this and every other encroachment of the crown. Jefferies, on the northern circuit in 1684, to use the language of Charles II. 's most unblushing advocate, " made all the char- ters, like the walls of Jericho, fall down be- fore him, and returned laden with surren- ders, the spoils of towns."* They received, instead, new charters, framing the constitu- tion of these municipalities on a more oli- garchical model, and reseiTing to the crown the first appointment of those who were to form the governing part of the corporation. These changes were gradually brought about in the last three years of Charles's reign, and in the beginning of the next. There can be nothing so destructive to Projects of *® English Constitution, not LotdRusscU even the introduction of a mili- anU Sidney. ^^^^ force, as the exclusion of the electoral body from their franchises. The people of this country are, by our laws and Constitution, bound only to obey a Parlia- ment duly chosen ; and this violation of char- teVs, in the reigns of Charles and James, appeai-s to be the great and leading justifi- cation of that event which drove the latter from the throne. It can, therefore, be no matter of censure, in a moral sense, that some men of pure and patriotic virtue, min- gled, it must be owned, with others of a far inferior temper, began to hold consultations as to the best means of resisting a govern- ment which, whether to judge from these proceedings, or from the language of its par- tisans, was aiming without disguise at an ar- bitrary power. But as resistance to estab- lished authority can never be warrantable until it is expedient, we could by no means approve any schemes of insurrection that might be projected in 1682, unless we could perceive that there was a fair chance of their success ; and this we are not led, by what we read of the spirit of those times, to believe. The tide i-an violently in another direction ; the courage of the Whigs was broken ; their adversaries were strong in numbers and in zeal ; but from hence it is reasonable to infer that men like Lord Essex and Lord * North's Examen, 626. Russell, with so much to lose by failure, with such good sense, and such abhorrence of civil calamity, would not ultimately have resolved on the desperate issue of arms, though they might deem it prudent to form estimates of their strength, and to knit to- gether a confederacy which absolute ne- cessity might call into action. It is beyond doubt that the supposed conspirators had de- bated among themselves the subject of an insurrection, and poised the chances of civil war. Thus much the most jealous lawyer, I presume, will allow might be done, with- out risking the penalties of treason. They had, however, gone further; and by con- certing measures in different places as well as in Scotland, for a rising, though contin- gently, and without any fixed determination to cany it into effect, most probably (if the whole business had been disclosed in testi- mony) laid themselves open to the law, ac- cording to the construction it has frequently received. There is a considerable difficulty, after all that has been written, in stating the extent of their designs ; but I think we may assume that a wide-spreading and formi- dable insurrection was for several months in agitation.* But the difficulties and hazards of the enterprise had already caused Lord Russell and Lord Essex to recede from the desperate counsels of Shaftesbuiy ; and but for the unhappy detection of the conspiracy and the perfidy of Lord Howard, these two noble persons, whose lives were untimely lost to their country, might have survived to join the banner and support the throne of William. It is needless to obseiTe that the minor plot, if we may use that epithet in reference to the relative dignity of the conspirators, for assassinating the king and the Duke of York, had no immediate con- nection with the schemes of Russell, Essex, and Sidney. f * Lady Russell's opinion was, that "it was no more than what her lord confessed, talk — and it is possible that talk going so far as to consider, if a remedy for supposed evils might be sought, how it could be formed." — Life of Lord Russell, p. 266. It is not easy, however, to talk long in this man- ner about the how of treason, without incun-ing the penalties of it. t See this business well discussed by the acuto and indefatigable Ralph, p. 722, and by Lord John Russell, p. 253. See, also. State Trials, ix., 358, et post. There appears no cause for doubting the reality of what is called the Rye-house Plot. The case against Walcot— Id., 519— was pretty well 488 COXSTITUTIOXAL HISTOEY OF ENGLAND [Chap. XU. But it is by no mecins a consequence from I Th ■ t al '■^^ admission we have made, that the evidence adduced on Lord Russell's trial was sufficient to justify his ' conviction.* It appears to me that Lord Howard, and perhaps Rumsej', were un- willing witnesses ; and that the former, as is ' frequently the case with those who betray their fi'iends in order to save their own lives, divulged no more than was extracted by his own danger. The testimony of neither I proved ; but his own confession completely hanged [ him and his friends too. His attainder was re- versed after the Revolotion, but only on account of some technical errors, not essential to the merits of the case. * State Trials, ix., 577. Lord Essex cut his throat in the Tower. He was a man of the most excellent qualities, but subject to constitutional melaucholy which overcame his fortitude ; an event the more to be deplored, as there seems to have been no possibility of his being convicted. A sus- picion, as is w^ell known, obtained credit with the enemies of the court that Lord Essex was murder- ed, and some evidence was brought forward by the zeal of one Braddon. The late editor of the State Trials seems a little inclined to revive this report, which even Harris (Life of Charles, p. 352J does . not venture to accredit ; and I am surprised to find Lord John Russell observe, " It would be idle, at the present time, to pretend to give any opinion on the subject." — P. 182. This I can by no means admit. VVe have, on the one side, some testimo- nies by children, who frequently invent and per- sist in falsehoods with no conceivable motive ; but, on the other hand, we are to suppose that Charles II. and the Duke of York caused a detestable mur- der to be perpetrated on one toward whom they had never shown any hostility, and iji whose death they had no interest. Each of these princes had faults enough; but I may venture to say that they were totally incapable of such a crime. One of the presumptive arguments of Braddon, in a pamphlet published long afterward, is, that the king and bis brother were in the Tower on the morning of Lord Essex's death. If this leads to any thing, we are to believe that Charles the Second, like the tyrant in a Grub-street tragedy, came to kill his prisoner with his own hands. Any man of ordinary under- standing (which seems not to have been the case with Mr. Braddon) must perceive that the circum- stance tends to repel suspicion rather than the con- trary. See the whole of this, including Braddon's pamphlet, in State Trials, ix., 1127. [I am sorry to read in an article of the Edinburgh Re^^ew by an eloquent friend, " Essex added a yet sadder and more fearful story to the bloody chronicles of the Tower." — Macaulay's Essays, iii., 93, and Edin- buTirh Review, 1838. For though this may imply no more than his suicide, it will generally be con- strued in another sense ; and surely the critical judgment can not be satisfied with evidence which mizht wei:;h, as I have heard it did, with the par- donable prejudices of a descendant. — 1845.] [ witness, especially Howard, was given with any degree of that precision which is exact- ed in modern times ; and, as we now read the trial, it is not probable that a jury in lat- er ages would have found a verdict of guilty, or would have been advised to it by the court : but, on the other hand, if Lord How- ard were really able to prove more than he did, which I much suspect, a better-con- ducted examination would probably have elicited facts unfavorable to the prisoner, which at present do not appear. It may be doubtful whether any overt act of treason is distinctly proved against Lord Russell, ex- cept his concurrence in the project of a ris- ing at Taunton, to which Rumsey deposes. But this, depending on the oath of a single witness, could not be sufficient for a convic- tion. Pemberton, chief-justice of the Common Pleas, tried this illustrious prisoner with more humanity than was usually displayed on the bench ; but, aware of his precaiious tenure in office, he did not venture to check the counsel for the crown. Sawyer and Jef- feries, permitting them to give a great body of hearsay evidence, with only the feeble and useless remark that it did not affect the prisoner :* yet he checked Lord Anglesea when he offered similar evidence for the defense. In his direction to the jury, it deserves to be remarked that he by no means advanced the general proposition, which better men have held, that a conspir- acy to levy w.ir is in itself an overt act of compassing the king's death ; Hmiting it to cases where the king's person might be put in danger, in the immediate instance, by th© alleged scheme of seizing his guai'ds.f His language, indeed, as recorded in the printed. * State Trials, 615. Sawyer told Lord Russell, when he applied to have his trial put off, that he would not have given the king an hour's notice to save his life. — Id., 583. Yet he could not pretend that the prisoner had any concern in the Assassin- ation Plot. f The act annulling Lord Russell's attainder re- cites him to have been " wrongfully convicted by paitial and unjust constructions of law." — State Trials, ix., 695. Several pamphlets were publish- ed after the Revolution by Sir Robert Atkins and Sir Jolm Hawles against the conduct of the court in this trial, and by Sir Bartholomew Shower in behalf of it. These are in the State Trials. But Holt, by laj-Lng down the principle of constructive treason in Ashton's case, established forever the legality of Pemberton's doctrine, and, indeed, car- ried it a sood deal farther. Cha. II.— 1673-85.] FROM HENRY VII. TO GEORGE 11. 489 trial, was such as might have produced a verdict of acquittal from a juiy tolerably dis- posed toward the prisoner; but the sher- irts, North and Rich, who liad been illegally thrust into office, being men wholly devoted to the prerogative, had taken care to return a panel in whom they could confide.* The trial of Algernon Sidney, at which Jefteries, now raised to the post of chief justice of the King's Bench, presided, is as familiar to all my readers as that of Lord Russell. t Their names have been always united in gi'ateful veneration and sympathy. It is notorious that Sidney's conviction was obtained by a most illegal distortion of the evidence. Besides Lord Howard, no living witness could be produced to the conspiracy for an insurrection ; and though Jefi'eries permitted two others to prepossess the jury by a second-hand story, he was compelled to admit that their testimony could not di- rectly affect the prisoner.! The attorney- general, therefore, had recourse to a paper found in his house, which was given in evi- dence, either as an overt act of treason by its own nature, or as connected with the alleged conspiracy ; for though it was only in the latter sense that it could be admissi- ble at all, yet Jefferies took cai-e to insinu- ate, in his charge to the jury, that the doc- trines it contained were ti-easonable in them- selves, and without reference to other evi- dence. In regard to truth, and to that jus- tice which can not be denied to the worst men in their worst actions, I must observe, that the common accusation against the court in this ti'ial, of having admitted insuf- ficient proof by the mere comparison of hand-writing, though alleged, not only in most of our historians, but in the act of Par- * Tfiere seems little doubt that the juries were packed throush a conspiracy of the sheriffs with Biytou and Graham, solicitors for the crowo. — State Trials, ix., 932. These two men ran awaj' at the Revolution ; but Roger North vhidicates their characters, and those who trast in liim may think them honest. t State Trials, ix., 818. t Id., 846. Yet in summing up the evidence he repeated all West and Keeling had thus said at second-hand, without reminding the jurj' that it was not legal testimony. — Id., 899. It would be said by his advocates, if any are left, that these witnesses must have been left out of the question, since there could otherwise have been no dispute about the written paper. But they were undoubt- edly intended to prop up Howard's evidence, which had been so much shaken by his previous declara- tion, that he knew of no conspiracy. | liament reversing Sidney's attainder, does not appear to bo well founded ; the testi- mony to that fact, unless the printed trial is falsified in an extraordinary degi'ee, being such as would be received at present.* We may allow, also, that the passages from this paper, as laid in the indictment, containing veiy strong assertions of the right of the people to depose an unworthy king, might by possibility, if connected by other evidence with the consi)iracy itself, have been ad- missible as presumptions for the jury to consider whether they had been written in furtherance of that design ; but when they came to be read on the trial with their con- text, though only with such parts of that as the attorney-general chose to produce out of a voluminous manuscript, it was clear that they belonged to a theoretical work on government, long since, perhaps, written, and incapable of any bearing upon the other evidence. f The manifest iniquity of this sentence upon Algernon Sidney, as well as the high courage he displayed throughout these last * This is pointed out, perhaps for the first time, in an excellent modem law-book, Phillipps's Law of Evidence. Yet the act for the reversal of Sid- ney's attainder declares in the preamble, that " the paper, supposed to be his hand-writing, was not proved by the testimony of any one witness to be written by him, but the jury was directed to be- lieve it by comparing it with other writings of the said Algernon." — State Trials, 997. This does not appear to have been the case ; and though Jeffe- ries is said to have garbled the manuscript trial before it was printed (for all the trials, at tliis time, were published by authority, which makes them much better evidence against the judges than for them), yet he can hardly have substituted so much testimony without its attracting the notice of At- kins and Hawles, who wrote after the Revolution. However, in Hayes's case, State Trials, x., 312, though the prisoner's hand writing to a letter was proved in the usual way by persons who had seen him write, yet this letter was also shown to the jury, along with some of his acknowledged writing, for the purpose of their comparison. [See, also, the ti-ial of the seven bishops. — Id., xii., 295.] It is possible, therefore, that the same may have been done on Sidney's trial, though the circumstance does not appear. Jefi'eries indeed says, " Compar- ison of hands was allowed for good proof in Sid- ney's case."— Id., 313. But I do not believe that the expression was used in that age so precisely as it is at present ; and it is well known to law- yers that the rules of evidence on this subject have only been distinctly laid down within the memory of the present generation. t See Han-is's Lives, v., 347. 490 COXSTITUTIOXAL HISTOaY OF ENGLAND [Chap. XIL scenes of his life, have inspired a sort of en- thusiasm for his name, which neither what we know of his stoiy, nor the opinion of his cotemporaries, seem altogether to warrant. The crown of martyrdom should be suf- fered, perhaps, to exalt eveiy virtue, and efface every defect in patriots, as it has oft- en done in saints. In the faithful miiTor of history, Sidney may lose something of this luster. He possessed, no doubt, a pow- erful, active, and undaunted mind, stored with extensive reading on the topics in which he delighted ; but having proposed one only object for his political conduct, the establishment of a republic in England, his pride and inflexibility, though they gave a dignity to his character, rendered his views narrow and his temper unaccommodating. It was evident to every reasonable man that a Republican government, being adverse to the prepossessions of a great majority of the people, could only be brought about and maintained by the force of usurpation. Yet for this idol of his speculative hours, he was | content to sacrifice the liberties of Europe, to plunge the countiy in civil wai', and even to stand indebted to France for protection. He may justly be suspected of having been the chief promoter of tlie dangerous cabals withBarillon; nor could any tool of Charles's court be more sedulous in representing the aggressions of Louis XIV. in the Nether- lands as indifferent to our honor and safety. Sir Thomas Armstrong, who had fled to Holland on the detection of the Plot, was given up by the States. A sentence of out- lawry, which had passed against him in his absence, is equivalent, in cases of treason, to a conviction of the crime ; but the law i allows the space of one year, during which the party may surrender himself to take his trial. Armstrong, when brought before the court, insisted on this right, and demanded a trial. Nothing could be more evident, in point of law, than that he was entitled to it; but Jefferies, with inhuman rudeness, treat- j ed his claim as wholly unfounded, and would not even suffer counsel to be heard in his behalf. He was executed, accordingly, without trial.* But it would be too prolix to recapitulate all the instances of brutal in- justice, or of cowardly subsei-viencj', which degi'aded the English la\\-yers of the Stuart period, and never so infamously as in these » State Trials, x., 305. last years of Charles II. From this pros- titution of the tribunals, from the intermis- sion of Parliaments, and the steps taken to render them, in future, mere puppets of the crown, it was plain that all constitutional securities were at least in abeyance; and those who felt themselves most obnoxious, or whose spirit was too high to live in an enslaved counti-y, retired to Holland as an asylum in which they might wait the oc- casion of better prospects, or, at the worst, breathe an air of liberty. Meanwhile, the prejudice agamst the Whig party, which had reached so great a height in 1681, was still further enhanced by the detection of the late conspiracy. The atrocious scheme of assassination, alleged against Walcot and some others who had suffered, was blended by the arts of the court and clergy, and by the blundering cre- dulity of the gentry, with those less heinous projects ascribed to Lord Russell and his associates.* These projects, if true in their I full extent, were indeed such as men hon- estly attached to the government of their countiy could not fail to disapprove. For this purpose, a declaration fuU of malicious insinuations was ordered to be read in all churches. f It was generally commented upon, we may make no question, in one of those loyal discourses, which, trampling on all truth, charity, and moderation, had no other scope than to inflame the hearers against non-conforming Protestants, and to throw obloquy on the constitutional privi- leges of the subject. It is not my intention to censure, in any strong sense of the word, the An- „. , _ " High Tory i glican clergy at this time for their pnuciples of assertion of absolute non-resist- ^^'^'Si ■ ance, so far as it was done without calumny and insolence toward those of another way of thinking, and without self-interested ad- ulation of the ruling power. Their error was very dangerous, and had nearly proved I destructive of the whole Constitution ; but it was one which had come down with high recommendation, and of which they could * The grand jury of XorthamptoDshire, in 1683, " present it as verj- expedient and necessarj- for securing the peace of this coantry, that all ill-af- fected persons may give security for the peace ;" specifj-ing a number of gentlemen of the first fam- ilies, as the names of Montagu, Langham, 4c, show. — Somers Tracts, yiii., 409. t Kalph, p. 763. Harris's Lives, v., 321. Cka. II.— 1673-85.] FROM HENRY VII. TO GEORGE II. 491 oiily, perhaps, be undeceived, as men are best undeceived of most errors, by experi- ence that it might hurt themselves. It was the tenet of their homilies, their canons, their most distinguished divines and casu- ists ; it had the apparent sanction of the Legislature in a statute of the present reign. Many excellent men, as was shown after the Revolution, who had never made use of this doctrine as an engine of faction or private interest, could not disentangle their minds fi'om the arguments or the authority on which it rested ; but by too great a num- ber it was eagerly brought forward to serve the purposes of arbitrary power, or at best to fix the wavering Protestantism of the court by professions of unimpeachable loy- alty. To this motive, in fact, we may trace a good deal of the vehemence with which the non-resisting principle had been origi- nally advanced by the Church of England under the Tudors, and was continually urged under the Stuarts. If we look at the tracts and sermons published by both par- ties after the Restoration, it will appear manifest that the Romish and Anglican churches bade, as it were, against each other for the favor of the two royal broth- ers. The one appealed to its acknowl- edged principles, while it denounced the pretensions of the Holy See to release sub- jects from their allegiance, and the bold the- ories of popular government which Mariana and some other Jesuits had promulgated. The others retaliated on the first movers of the Reformation, and expatiated on the usurpation of Lady Jane Grey, not to say Elizabeth, and the Republicanism of Knox or Calvin. From the era of the Exclusion Bill espe- Passive cially to the deatli of Charles II., obedience, g, number of books were published in favor of an indefeasible hereditary right of the crown, and of absolute non-resistance. These were, however, of two very different classes. The authors of the first, who were perhaps the more numerous, did not deny tlie legal limitations of monarchy. They admitted that no one was bound to concur in the execution of unlawful commands. Hence the obedience they deemed indis- pensable was denominated passive ; an epi- thet which in modern usage is little more than redundant, but at that time made a sensible distinction. If all men should con- fine themselves to this line of duty, and merely refuse to become the instruments of such unlawful commands, it was evident that no tyranny could be carried into effect. If some should be wicked enough to co-op- erate against the liberties of their country, it would still be the bounden obligation of Christians to submit. Of this, which may be reckoned the moderate party, the most eminent were Hickes in a treatise called Jovian, and Sherlock in his case of resist- ance to the supreme powers.* To this, * This book of Sherlock, printed iu 1684, is the most able treatise ou that side. His proposition is, that " sovereigTi princes, or the supreme power iu any nation, in whomsoever placed, is in all cases irresistible." He infers from the statute 13 Car. II., declaring it unlawful, under any pretense, to wage war, even defensive, against the king, that the supreme power is in him ; for he who is unac- countable and irresistible is supreme. There are some, he owns, who contend that the higher pow- ers mentioned by St. Paul meant the law, and that when princes violate the laws we may defend their legal authority against their personal usurpations. He answers this very feebly. " No law can come into the notion and definition of supreme and sov- ereign powers ; such a prince is under the direc- tion, but can not possibly be said to be under the govenunent of the law, because there is no supe- rior power to take cognizance of his breach of it, and a law has no authority to govern where there is no power to punish." — P. 114. "These men think," he says, p. 126, "that all civil authority is founded in consent, as if there were no natural lord of the world, or all mankind came free and inde- pendent into the world. This is a contradiction to what at other times they will grant, that the insti- tution of civil power and authority is from God ; and, indeed, if it be not, I know not how any prince can justify the taking away the life of any man, whatever crime he has been guilty of; for no man has power of his own life, and therefore can not give this power to another ; which proves that the power of capital punishments can not result from mere consent, but from a superior authority, which is lord of life and death." This is plausibly urged, and is not refuted in a moment. He next comes to an objection, which eventually he was compell- ed to admit, with some discredit to his consistency and disinterestedness. " ' Is the power of victo- rious rebels and usurpers from God? Did Oliver Cromwell receive his power from God ? then, it seems, it was unlawful to resist him too, or to con- spire against bim ; then all those loyal subjects who refused to submit to him when he had got the power in his hands were rebels and traitors.' To this I answer, that the most prosperous rebel is not the higher x)owers, while our natural prince, to whom we owe obedience and subjection, is in being ; and, therefore, though such men may get the power into their hands by God's permission, yet not by God's ordinance ; and he who resists 492 CONSTITUTIONAL HISTORY OF ENGLANT) [Chap. XIL also, must have belonged Archbishop San- croft, and the great body of non-juring clergy who had refused to read the Decla- ration of Indulgence under James II., and whose conduct in that respect would be ut- terly absurd, except on the supposition that there existed some lawful boundaries of the royal authority. But besides these men, who kept some Some cun- measures with the Constitution, absolu'te while, by their slavish tenets, power. they laid it open to the assaults of more intrepid enemies, another and a pret- ty considerable class of writers did not hesi- tate to avow their abhorrence of all limita- tions upon arbitrary power. Brady went back to the primary sources of our histoiy, and endeavored to show that Magna Charta, as well as eveiy other constitutional law, were but rebellious encroachments on the ancient uncontrollable, imprescriptible pre- rogatives of the monarchy. His writings, replete with learning and acuteness, and in some respects with just remarks, though often unfair and always partial, naturally produced an effect on those who had been accustomed to value the Constitution rather for its presumed antiquity than its real ex- cellence. But the author most in vogue with the partisans of despotism was Sir Sir Robert Robert Filmer. He had lived be- Filmer. f(jj.g (}jg gjyij -^yg^j.^ ljuj IjJs posthu- mous writings came to light about this pe- riod. They contain an elaboi'ate vindica- tion of what was called the patriarchal scheme of government, which, rejecting with scorn that original conti-act whence human society had been supposed to spring, derives all legitimate authority from that of primogeniture, the next heir being king them does not resist the ordinance of God, but the usurpatioua of men. In hereditary kingdoms, the king never dies ; but the same minute that the natural person of one king dies, the crown descends upon the next of blood ; and therefore he who re- belleth against the father and murders him, con- tinues a rebel in the reign of the son, which com- mences with his father's death. It is otherwise, indeed, where none can pretend a greater title to tlie crown than tlie usurper, for there possession of power seems to give a right." — P. 127. Slierlock began to preach in a very different manner as soon as James showed a disposition to set up his own church. " It is no act of loj alty," he told the House of Commons, May 29, 1685, " lo accommodate or comphment away our religion and its legal securities. " — Good Advice to the Pulpits. by divine right, and as incapable of being restrained in his sovereignty as of being excluded from it. "As kingly power," he says, " is by the law of God, so hath it no inferior power to limit it. The father of a family governs by no other law than his own will, not by the laws and wills of his sons and servants."* '' The direction of the law is but like the advice and direction which the king's council gives the king, which no man says is a law to the king."t " General laws," he observes, " made in Parliament, may, upon known respects to the king, by his authority be mitigated or suspended upon causes only known to him ; and by the coronation oath, he is only bound to observe good laws, of which he is the judge. "t " A man is bound to obey the king's command against law ; nay, in some cases, against divine laws."§ In another treatise, entitled the Anarchy of a Mixed or Limited Monarchy, he inveighs, with no kind of reserve or exception, against the regular Constitution; setting off with an as- sumption that the Parliament of England was originally but an imitation of the States General of France, which had no further power than to present requests to the king.|| These treatises of Filmer obtained a very favorable reception. We find the pa- triarchal origin of government frequently mentioned in the publications of this time as an undoubted truth. Considered with respect to his celebrity rather than his tal- ents, he was not, as some might imagine, too ignoble an adversary for Locke to have combated. Another person, far superior to Filmer in political eminence, undertook at the same time an unequivocal defense of absolute monarchy. This was Su- George Mackenzie, the famous lord-advo- sir George cate of Scotland. In his Jus Re- Mackenzie, glum, published in 1664, and dedicated to the Universitj' of Oxford, he maintains that " monarchy in its nature is absolute, and consequently these pretended limitations are against the nature of monarchy." H '• Whatever proves monarchy to be an ex- cellent government, does by the same reas- on prove absolute monarchy to be the best * P. 81. t P. 95. t P- 9S, 100. § P. 100. II This treatise, subjoined to one of greater length, entitled the Freeholder's Grand Inquest, was pub- lished in IfiTO, but the Patriarcha not till 16S5. t P. 39. Cha. II.— 1G73-85.] FROM HENRY VII. TO GEORGE II. 493 government ; for if monarchy be to be com- mended because it prevents divisions, then a limited monarchy, which allows the peo- ple a share, is not to be commended, be- cause it occasions them ; if monarchy be commended because there is more expedi- tion, secrecy, and other excellent qualities to be found in it, then absolute monarchy is to be commended above a limited one, be- cause a limited monachy must impart his secrets to the people, and must delay the noblest designs, until malicious and factious spirits be either gained or overcome ; and the same analogy of reason will hold in re- flecting upon all other advantages of mon- archy, the examination whereof I dare trust to every man's own bosom."* We can hardly, after this, avoid being astonished at the effrontery, even of a Scots crown law- yer, when we read in the preface to this very treatise of Mackenzie, " Under whom can we expect to be free from arbitraiy gov- ernment, when we were and are afraid of it under King Charles I. and King Charles 11.?" It was at this time that the University of _ , , Oxford published their celebrated Decree of the ' University of decree against pernicious books Oxfoid. damnable doctrines, enumer- ating as such above twenty propositions, which they anathematized as false, sedi- tious, and impious. The first of these is, that all civil authority is derived originally from the people ; the second, that there is a compact, tacit or express, between the king and his subjects ; and others follow of the same description. They do not explicitly condemn a limited monarchy, like Filiner, but evidentlj' adopt his scheme of primo- genitary right, which is, perhaps, almost in- compatible with it ; nor is there the slight- est intimation that the University extended their censure to such praises of despotic power as have been quoted in the last pages. t This decree was publicly burned by an order of the House of Lords in 1709 ; nor does there seem to have been a single dissent in that body to a step that cast such a stigma on the University. But the dis- grace of the offense was greater than that of the punishment. We can frame no adequate conception of the jeopardy in which our liberties stood * pTTe! t Collier, 902. Soniers Tracts, 420. under the Stuarts, especially iii this partic- ular period, without attending to this spirit of seiTility which had been so sedulously excited. It seemed as if England was about to play the scene which Denmark had not long since exhibited, by a spontane- ous surrender of its Constitution ; and al- though this loyalty were much more on the tongue than in the heart, as the next reign very amply disclosed, it served, at least, to deceive the court into a belief that its future steps would be almost without difficulty. It is uncertain whether Charles would have summoned another Parliament. He either had the intention, or professed it in order to obtain money from France, of convoking one at Cambridge in the autumn of 1681 ;* but after the scheme of new-modeling cor- porations began to be tried, it was his policy to wait the effects of this regeneration. It was better still, in his judgment, to dispense with the Commons altogether. The peri- od fixed by law had elapsed nearlj' twelve months before his death, and we have no evidence that a new Parliament was in con- templation. But Louis, on the other hand, having discontinued his annual subsidy to the king in 1684, after gaining Strasburg and Luxemburg by his conniv- _ , . Connection ance, or, rather, co-operation, f it with Louis would not have been easy to avoid a recurrence to the only lawful source of revenue. The King of France, it should be observed, behaved toward Charles as men usually ti-eat the low tools by whose corinption they have obtained any end. During the whole course of their long ne- gotiations, Louis, though never the dupe of our wretched monarch, was compelled to * Dalrymple, Appendix, 8. Life of James, 691. He pretended to come into a proposal of the Dutch for an alliance with Spain and the empire against the fresh encroachments of France, and to call a Parliament for that purpose, hut with no sincere intention, as he assured Barillon. " Je n'ai aucune intention d'assembler le Parlement; ces sont des diables qui veulent ma ruiue." — Dalrymple, 15. t He took 100,000 livres for allowing the French to seize Luxemburg ; after this he offered his arbi- tration, and on Spain's refusal, laid the fault on her, though already bribed to decide in favor of France. Lord Rochester was a party in all these base transactions. The acquisition of Luxemburg and Sti-asburg was of the utmost importance to Louis, as they gave him a predominating influence over the four Rhenish electors, through whom he hoped to procure the election of the dauphin as king of the Romans. — Id., 3C. 494 CONSTITUTIONAL HISTORY OF ENGLAND [Chap. XIIL endure his shuffling evasions, and pay dear- ly for his base compliances ; but when he saw himself no longer in need of them, it seems to have been in revenge that he per- mitted the publication of the secret treaty of 1670, and withdrew his pecuniary aid. Charles deeply resented both these marks of desertion in his ally. In addition to them, he discovered the intrigues of the French ambassadors with his malcontent Commons. He perceived, also, that by bringing home the Duke of York from Scot- land, and restoring him, in defiance of the Test Act, to the privy coimcil, he had made the presumptive heir of the throne, pos- sessed as he was of superior steadiness and attention, too near a rival to himself These reflections appear to have depressed his mind in the latter months of his life, and to have produced that remarkable private rec- onciliation with the Duke of Monmouth, through the influence of Lord Halifax, which, had he lived, would very probably have displayed one more revolu- tion m the uncertam pobcy of this reign.* But a death, so sudden and inopportune as to excite suspicions of poison in some most nearly connected with him, gave a more decisive character to the sys- I tem of government.t CHAPTER Xin. ON THE STATE OP THE CONSTITUTION UNDER CHARLES H. Effect of tlie Press. — Restrictions upon it before and after the Restoration. — Licensing Acts. — Political Writings checked by the Judges. — Instances of illegal Proclamations not numer- ous.— Juries fined for Verdicts. — Question of their Right to return a general Verdict. — Habe- as Corpus Act passed. — Differences between Lords and Commons. — Judicial Powers of the Lords historically traced. — Their Pretensions about the Time of the Restoration. — Resistance made by the Commons. — Dispute about their orisrinal Jurisdiction, and that in Appeals from Courts of Equity. — duestion of the exclusive Right of the Commons as to Money BiUs. — Its History. — The Right extended further. — State of the Upper House under the Tudors and Stu- arts.— Augmentation of tlie Temporal Lords. — State of the Commons. — Increase of their Mem- bers.— duestion as to Rights of Election. — Four different Theories as to the original Principle. — Their ProbabUity considered. It may seem rather an extraordinary position, after the last chapters, yet is strict- ly true, that the fundamental privileges of the subject were less invaded, the preroga- tive swened into fewer excesses, during the reign of Charles II. than in any foiTner pei'iod of equal length. Thanks to the pa- triotic energies of Selden and Eliot, of Pym and Hampden, the constitutional boundaries of I'oyal power had been so well established that no minister was daring enough to at- tempt any flagi-ant and general violation of them. The frequent session of Parlia- ment, and its high estimation of its own privileges, furnished a security against ille- gal taxation. Nothing of this sort has been imputed to the government of Charles, the first King of England, perhaps, whose reign was wholly fi'ee from such a charge : and as the nation happily escaped the attempts that were made aft:er the Restoration to re- vive the Star Chamber and High Commis- sion courts, there were no means of chastis- * Dalrjmple, Appendix, 74. Burnet. Mazure, Hist, de la Revolution de 1688, i., 340, 372. This is confirmed by, or rather confirms, the very curions notes found in the Duke of Monmouth's pocket- book when he was taken after the battle of Sedge- moor, and published in the appendix to Welwood's Memoirs. Tbousrh we should rather see more ex- ternal evidence of their authenticity than, so far as I know, has been produced, they have great marks of it in themselves ; and it is not impossible that, after the Revolution, Welwood may have obtained them from the secretary of state's ofiice. t It is mentioned by Mr. Fox, as a tradition in the Duke of Richmond's familj", that the Duchess of Portsmouth beUeved Charles II. to have been poisoned. This I find confirmed in a letter read on the trial of Francis Francia, indicted for treason in 1715. "The Duchess of Portsmouth, who is at present here, gives a great deal of offense, as I am informed, by pretending to prove that the late King James had poisoned his brother Charles ; it was not expected, that after so many years' retire- ment in France, she should come hither to revive that vulgar report, which at so critical a time can not be for any good purpose." — State Trials, xv., 948. It is almost needless to say that the suspi- cion was wholly unwarrantable. I have since been informed, on the best authority, that Mr. Fox did not derive his authority from a tradition in the Duke of Richmond's family, that of his own mother, as bis editor had very naturally conjectured, but from his father, the first Lord Holland, who, wliile a young man traveling in France, had become acquainted with the Duchess of Portsmouth. Cha. II.- Constitution.] FROM HENRY VII. TO GEORGE II. 495 ing political delinquencies except through the regular tribunals of justice and through the verdict of a jury. Ill as the one were often constituted, and submissive as the other might often be found, they afforded something more of a guarantee, were it only by the publicitj' of their proceedings, than the dark and silent divan of courtiers and prelates, who sat in judgment under the two former kings of the house of Stuart. Though the bench was frequently subservi- ent, the bar contained high-spirited advo- cates, whose firm defense of their clients the judges often reproved, but tio longer affected to punish. The press, above all, was in continual service. An eagerness to peruse cheap and ephemeral tracts on all subjects of passing interest had prevailed ever since the Reformation. These had been exti-aordinarily multiplied from the meeting of the Long ParliaTuent. Some thousand pami)hlets of different descrip- tions, written between that time and the Restoration, may be foimd in the British Museum ; and no collection can be suppos- ed to be perfect. It would have required the summary process and stern severity of the Court of Star Chamber to repress this ton'ent, or reduce it to those bounds which a government is apt to consider as secure. But the measures taken with this view under Charles II. require to be distinctly noticed. In the reign of Heni-y VIII., when the Effect of the political importance of the art of press. Re- printing, especially in the great stnctions ' ^ , t, i- upon it be- question 01 the Reformation, be- ter^he Res- S^" f° apprehended, it was toration. thought necessaiy to assume an absolute conti'ol over it, partly by the king's general prerogative, and still more by virtue of his ecclesiastical supremacy.* Thus it * It was said iu 18 Car. II. (1666), that "the king by the common lavs' hath a general preroga- tive over the printing-press, so that none ought to print a book for public use without his license." This seems, however, to have been in the argu- ment of counsel ; but the court held that a patent to print law-books exclusively was no monopoly. — Carter's Reports, 89. " Matters of state and things that concern the government," it is said in another case, " were never left to any man's liberty to print that would." — 1 Mod. Rep., 258. Kennet in- forms us that several complaints having been made of Lilly's Grammar, the use of which had been prescribed by the roj al ecclesiastical supremacy, it was thought proper in 1664 that a new public became usual to grant by letters patent the exclusive right of printing the Bible or religious books, and afterward all others. The privilege of keeping presses was limit- ed to the members of the Stationers' Com- pany, who were bound by regulations es- tablished in the reign of Mary by the Star Chamber, for the contravention of which they incurred the speedy chastisement of that vigilant tribunal. These regulations not only limited the number of presses, and of men who should be employed on them, but subjected new publications to the pre- vious inspection of a licenser. The Long Parliament did not hesitate to copy this precedent of a tyranny they had over- thrown; and by repeated ordinances against unlicensed printing, hindered, as far as in them lay, this gi-eat instiatment of political power from serving the purposes of their adversaries. Every government, however popular in name or origin, must have some uneasiness from the great mass of the mul- titude, some vicissitudes of public opinion to apprehend ; and experience shows that re- publics, especially in a revolutionary season, shrink as instinctively, and sometimes as reasonably, from an open license of the tongue and pen, as the most jealous court. We read the noble apology of Milton for the freedom of the press with admiration ; but it had little influence on the Parliament to whom it was addressed. It might easily be anticipated, from the general spirit of Lord Clarendon's Urensing administration, that he would not suffer the press to emancipate itself from these established shackles.* A bill for the regulation of printing failed in 1661, from the Commons' jealousy of the peers, who had inserted a clause exempting their own houses from search. f But next year a statute was enacted, which, reciting " the well-government and regulating of printers form of grammar should be drawn np and approved, in, convocation, to be enjoined by the royal author- ity. One was accordingly brought in by Bishop Peai'son, but the matter dropped. — Life of Charles IL, 274. * We find an order of council, June 7, 1660, that the Stationers' Company do seize and deliver to the secretary of state all copies of Buchanan's His- tory of Scotland, and De Jure Regni apud Scotos, " which are very pernicious to monarchy, and inju- rious to his majesty's blessed progenitors." — Ken- net's Register, 176. This was beginning eariy. t Commons' Journals, July 29, 1661. 496 CONSTITUTIONAL HISTORY OF ENGLAND [Chap. XIII. and printing-pi'esses to be matter of public care and concernment, and tbat by the gen- eral licentiousness of the late times many evil-disposed persons had been encouraged to print and sell heretical and seditious boolis," prohibits every private person from printing any book or pamphlet, unless en- tered with the Stationers' Company, and duly licensed in the following manner: to wit, books of law by the chancellor or one of the chief justices, of history and politics by the secretaiy of state, of heraldry by the kings at arms, of divinity, phj'sic, or philosophy, by the Bishops of Canterbury or London, or, if printed at either Univers- ity, by its chancellor. The numijer of mas- ter printers was limited to twenty : they were to give security, to affix their names, and to declare the author, if required by the licenser. The king's messengers, by war- rant from a secretary of state, or the mas- ter and wardens of the Stationers' Compa- ny, were empowered to seize unlicensed copies wherever they should think fit to search for them, and, in case they should find any unlicensed book suspected to con- tain matters contrary to the Church or State, they were to bring them to tlie two bishops before mentioned, or one of the sec- retaries. No books were allowed to be printed out of London, except in York and in the Universities. The penalties for printing without license were of course heavy.* This act was only to last three years ; and after being twice renewed (the last time until the conclusion of the first session of the next Parliament), expired consequently in 1679; an era when the House of Commons were happily in so dif- ferent a temper that any attempt to revive it must have proved abortive. During its continuance, the business of licensing books was intrusted to Sir Roger L'Estrange, a well-known pamphleteer of that age, and himself a most scun'ilous libeler in behalf of the party he espoused, that of popery and despotic power. It is hardly necessa- ry to remind the reader of the objections that were raised to one or two lines in Par- adise Lost. Though a previous license ceased to be Poiiiicai wri- necessaiy, it was held by all the ed by'the'''' J^'^S^^' li^^i^g ™Gt for this pur- judges. pose (if we believe Chief-justice * 14 Car. II., c. 33. I Scroggs) by the king's command, that all I books scandalous to the government or to private persons may be seized, and the au- thors or those exposing them punished ; and that all writers of false news, though not scandalous or seditious, are indictable on that account.* But in a subsequent trial he informs the jury that " when, by the king's command, we were to give in our opinion what was to be done in point of reg- ulation of the press, we did all subscribe that to print or publish any news, books, or pamphlets of news whatsoever, is illegal ; that it is a manifest intent to the breach of the peace, and they may be proceeded against by law as an illegal thing.f Sup- pose, now, that this thing is not scandalous, what then ] If there had been no reflec- tion in this book at all, yet it is illicite, and the author ought to be convicted for it ; and that is for a public notice to all people, and especially printers and booksellers, that they ought to print no book or pamphlet of news whatsoever without authority." The pre- tended libel in this case was a periodical pamphlet, entitled the Weekly Pacquet of Advice from Rome ; being rather a virulent attack on popeiy than serving the purpose of a newspaper. These extraordinary propo- sitions were so fiir from being loosely ad- vanced, that the Court of King's Bench pi-oceeded to make an order that the book should no longer be printed or published by any person whatsoever.t Such an order was evidently be3-ond the competence of that couit, were even the prerogative of the king in council as high as its warmest ad- vocates could sti'ain it. It formed, accord- ingly, one article of the impeachment voted * State Trials, vii., 929. t This declaration of the judges is recorded in tlie following passage of the London Gazette, Maj- 5, 1G80 : " This day the judges made their report to his majesty in council, in pursuance of an order of this board, by which they unanimously declare that liis majesty may hy law prohibit the printing and publishing of all news-books and pamphlets of news wliatsoever not licensed by his majesty's au- thority, as manifestly tending to the breach of the peace and disturbance of the kingdom : where- upon his majesty was pleased to direct a procla- mation to be prepared for the restraining the print- ing of news-books and pamphlets of news without leave." Accordingly, such a proclamation t^pears in the Gazette of May 17. ' t State Trials, vii., 1127; viii., 184, 197. Even North seems to admit that this was a stretch of power. — Examen, 564. Cha. ir.— Constitution.] FROM HENRY VII. TO GEORGE II. 497 against Scroggs in the next session.* An- other was for issuing general warrants (that is, waiTauts wherein no names are men- tioned) to seize seditious libels and appre- hend their authors. f But this impeach- ment having fallen to the ground, no check was put to general wairants, at least from the secretaiy of state, till the famous judg- ment of the Court of Common Pleas in 1763. Those encroachments on the legislative Instances of Supremacy of Parliament, and iamirtions''not ^^^^ personal rights of the sub- numerous, ject, by means of ])roclamations issued from the privy council, which had rendered former princes of both the Tudor and Stuart families almost arbitrary mas- ters of their people, had fallen with the odi- ous tribunal by which they were enforced. The king was restored to nothing but what the law had preserved to him. Few in- stances appear of illegal proclamation in his reign. One of these, in 1665, required all officers and soldiers who had served in the wmies of the late usurped powers to depart the cities of London and Westminster, and not to return within twenty miles of them before the November following. This seems connected with the well-gi-ounded apprehension of a Republican conspiracy. t Another, immediately after the fire of Lon- don, directed the mode in which houses should be rebuilt, and enjoined the loi'd- mayor and other city magistrates to pull down whatsoever obstinate and refractory persons might presume to erect upon pre- tense that the ground was their own ; and especially that no houses of timber should be erected for the future. § Though the pub- He benefit of this last restriction, and of some regulations as to the rebuilding of a city which had been desti-oyed in great measure through the want of them, was sufficiently manifest, it is impossible to justify the tone and tenor of this proclamation ; and more particularly as the meeting of Parliament was veiy near at hand. But an act having * State Trials, viii., 163. t It seems that these warrants, though usual, were known to be against the law. — State Trials, vii., 949, 93G. Possibly they might have been jus- tified under the words of the Licensing Act, while that was in force ; and having been thus introduced, were not laid aside. t Rennet's Charles II., 277 j State Trials, vi., 837. I I passed therein for the same purpose, the proclamation must be considered as having had little effect. Another instance, and far less capable of extenuation, is a proclama- tion for shutting up coffee-houses, in De- cember, 1675. I have already mentioned this as an intended measure of Loi'd Clar- endon. Coffee-houses were all, at that time, subject to a license, granted by the magistrates at quarter sessions ; but, the licenses having been gi-anted for a certain time, it was justly questioned whether they could in any manner be revoked. This proclamation being of such disputable legal- ity, the judges, according to North, were consulted, and intimating to the council that they were not agreed in opinion upon the most material questions submitted to them, it seemed advisable to recall it.* In this essential matter of proclamations, therefore, the administration of Charles IL is very advantageously compared with that of his father ; and considering, at the same time, the entire cessation of impositions of money without consent of Parliament, we must admit that, however dark might be his de- signs, there were no such general infringe- ments of public liberty in his reign as had continually occurred before the Long Par- liament. One undeniable fundamental privilege had sm-vived the shocks of every revolution ; and in the worst times, except those of the late usurpation, had been the standing rec- ord of primeval liberty — the trial by jury : whatever infringement had been made on this, in many cases of misdemeanor, by the present jurisdiction of the Star Chamber, it was impossible, after the bold reformers of 1641 had lopped off that unsightly ex- crescence from the Constitution, to prevent a criminal charge fi'om passing the legal course of investigation through the inquest of a grand jury, and the verdict in open court of a potty jury. But the judges, and other ministers of justice, for the sake of their own authority or that of the crown, devised various means of subjecting juries to their own direction, by intimidation, by un- fair returns of the panel, or by narrowing the boundaries of their lawful function. It * Ralph, 297. North's Examen, 139. Keimet, 337. Hume of course pretends that this proclama- tion would have been reckoned legal in former times. 498 CONSTITUTIONAL HISTORY OF ENGLAND [Chap. XIH is said to have been the practice in early Juries finnd times, as I have mentioned from for verdicts, gij- Thomas Smith in another place, to fine juries for returning verdicts against the direction of the court, even as to matter of evidence, or to summon them before the Star Chamber. It seems that instances of this kind were not very nu- merous after the accession of Elizabeth ; yet a small number occur in our books of reports. They were probably sufficient to keep juries in much awe. But after the Restoration, two judges, Hyde and Keeling, successively chief justices of the King's Bench, took on them to exercise a pretend- ed power, which had at least been inter- mitted in the time of the Commonweailth. The grand jury of Somerset having found a bill for manslaughter instead of murder, against the advice of the latter judge, were summoned before the Court of King's Bench, and dismissed with a reprimand in- stead of a fine.* In other cases fines were set on petty juries for acquittals against the judge's direction. This unusual and dan- gerous inroad on so important a right at- tracted the notice of the House of Com- mons : and a committee was appointed, who reported some sti'ong resolutions against Keeling for illegal and arbitrarj' proceedings in his office, the last of which was, that he be brought to tiial, in order to condign pun- * " Sir Hugh Wyndliam and others of the grand jury of Somerset were at the last assizes bound over, by Lord-chief-justice Keeling, to appear at the King's Bench the first day of this term, to answer a misdemeanor for finding upon a bill of murder, 'billa vera quoad manslaughter,' against the directions of the judge. Upon their appear- ance, they were told by the court, being full, that it was a misdemeanor in them, for they are not to distinguish betwixt murder and manslaughter; for it is only the circumstance of malice which makes the difference, and that may be implied by the law, ■without any fact at all, and so it lies not in the judgment of a jury, but of the judge ; that the in- tention of their finding indictments is, that there might be no malicious prosecution ; and, therefore, if the matter of the indictment be not framed of malice, but is verisimilis, though it be not vera, yet it answers their oatlis to present it. Twisden said he had known petty juries punished in my Lord- chief justice Hyde's time for disobeying of the judge's directions in point of law ; but, because it was a mistake in their judgments rather than an obstinacy, the court discharged them without any fine or other attendance." — Pasch. 19 Car. II. Keel- ing, Ch. J. Twisden, Wyndham, Morton, justices. Hargrave MSS., vol. 339. I ishment, in such manner as the House should deem expedient; but the chief-jus- tice, having requested to be heard at the bar, so far extenuated his offense, that the House, after resolving that the practice of fining or imprisoning jurors is illegal, came to a second resolution to proceed no further against him.* I The precedents, however, which these judges endeavored to establish, Question of were repelled in a more decisive "■ f 'ght to * return agen- manner than by a resolution of erai verdict, the House of Commons ; for in two cases where the fines thus imposed upon jurors had been estreated into the Exchequer, Hale, then chief baron, with the advice of most of the judges of England, as he informs us, stayed process ; and in a subsequent case, it was resolved by all the judges ex- cept one that it was against law to fine a jury for giving a verdict contrary to the court's direction ; yet, notwithstanding this veiy recent determination, the recorder of London, in 1670, upon the acquittal of the i Quakers, Penn and Mead, on an indictment for an unla^vful assembly, imposed a fine of ' forty marks on each of the jury.f Bush- ell, one of their number, being committed for non-payment of this fine, sued his writ ! of habeas corpus from the Court of Com- 1 mon Pleas ; and, on the return made, that he had been committed for finding a verdict against full and manifest evidence, and against the direction of the court. Chief- justice Vaughan held the ground to be in- sufficient, and discharged the party. In hig reported judgment on this occasion, he maintains the practice of fining jurors, mere- ly on this account, to be comparatively re- cent, and clearly against law.J No later instance of it is recorded ; and perhaps it can only be ascribed to the violence that still prevailed in the House of Commons against Non-conformists, that the recorder escaped its animadversion. In this judgment of the Chief-justice Vaughan, he was led to enter on a question much controverted in later times, the legal right of the jiuy, without the du-ection of the judge, to find a general verdict in crim- inal cases, where it determines not only the truth of the facts as deposed, but their qual- * Journals, 16th of Oct., 1667. t State Trials, vi., 967. t Vaughan's Reports. State Trials, v., 999. Cha. II.— Constitution.] FROM HENRY VII. TO GEORGE II. 49d ity of guilt or innocence ; or, as it is com- monly, though not, perhaps, quite accurate- ly worded, to judge of the law as well as the fact. It is a received maxim with us, that the judge can not decide on questions of fact, nor the j ury on those of law. When- ever the general principle, or what may be termed the major proposition of the syllo- gism, which every litigated case contains, can be extracted from the particular cir- cumstances to which it is supposed to ap- ply, the court pronounce their own determ- ination, without reference to a jury. The province of the latter, however, though it properly extend not to any general decision of the law, is certainly not bounded, at least in modern times, to a mere estimate of the truth of testimony. The intention of the litigant parties in civil matters, of the ac- cused in crimes, is in every case a matter of inference from the testimony or from the acknowledged facts of the case ; and wher- ever that intention is material to the issue, is constantly left for the jury's deliberation. There are, indeed, rules in criminal proceed- ings which supersede this consideration, and where, as it is expressed, the law presumes the intention in determining the offense. Thus, in the common instance of murder or manslaughter, the juiy can not legally de- termine that provocation to bo sufficient which by the settled rules of law is other- wise ; nor can they, in any casef set up nov- el and arbitrary consti'uctions of their own witliout a disregard of their duty. Unfor- tunately, it has been sometimes the dispo- sition of judges to claim to themselves the absolute interpretation of facts, and the ex- clusive right of drawing inferences from them, as it has occasionally, though not, perhaps, with so much danger, been the failing of juries to make their right of re- turning a general verdict subservient to fac- tion or prejudice. Vaughan did not, of course, mean to encoiirage any petulance in juries that should lead them to pronounce on the law, nor does he expatiate so largely on their power as has sometimes since been usual ; but confines himself to a narrow, though conclusive line of argument, that as every issue of fact must be supported by testimony, upon the truth of which the jury are exclusively to decide, they can not be guilty of any legal misdemeanor in returning their verdict, though apparently against the j I direction of the court in point of law, since it can not ever be proved that they believed the evidence upon which that direction must have rested.* I have already pointed out to the read- er's notice that article of Claren- „ , Habeas don's impeachment which charges Corpus Act him with having caused many per- P**^'"'' sons to bo imprisoned against law.f These were released by the Duke of Bucking- ham's administration, which in several re- spects acted on a more liberal principle than any other in this reign. The practice was not, however, wholly discontinued. Jenkes, a citizen of London on the popular or fac- tious side, having been committed by the king in council for a mutinous speech in (juildhall, the justices at quarter sessions refused to admit him to bail, on pretense that he had been conuuitted by a superior court; or to try him, because he was not entered in the calendar of prisoners. The chancellor, on application for a habeas cor- pus, declined to issue it during the vacation ; and the chief-justice of the King's Bench, to whom, in the next place, the friends of Jenkes had recourse, made so many diffi- culties that he lay in prison for seVeral weeks. t This has been commonly said to have produced the famous Act of Habeas Corpus. But this is not ti"uly stated. The ai'bitraiy proceedings of Lord Clarendon were what really gave rise to it. A bill to prevent the refusal of the writ of habeas corpus was brought into the House on April 10, 1668, but did not pass the committee in that session ;§ but another to the same pur- pose, probably more remedial, was sent up to the Lords in March, 1669-70. || It failed of success in the Upper House ; but the Commons continued to repeat their strag- gle for this important measure, and in the * See Hargrave's judicious observations on the province of juries. — State Trials, vi., 1013. t Those who were confined by wan-ants were forced to buy their liberty of the courtiers ; "which," says Pepys (July 7, 1G67), "is a most lamentable thing that we do professedly own that we do these things, not for right and justice' sake, but only to gratify this or that person about the king." t State Trials, vi., 1189. § Commons' Journals. As the titles only of these bills are entered in the Journals, their pur- port can not be stated with absolute certainty. They might, however, I suppose, be found in some of the offices. 11 Pari. Hist., 661. It was opposed by the couit 500 CONSTITUTIONAL HISTOEY OF ENGLAND [Chap. XIII session of 1673-4 passed two bills, one to prevent the imprisoument of the subject in jails beyond the seas, another to give a more expeditious use of the writ of habeas corpus in criminal matters.* The same or similar bills appear to have gone up to the Lords in 1C75. It was not till 1676 that the delay of Jenkes's habeas corpus took place ; and this affair seems to have had so trifling an influence, that these bills were not revived for the next two years, notwithstanding the tempests that agitated the House during that period ;f but in the short Parliament of 1679, they appear to have been consoli- dated into one, that having met with better success among the Lords, passed into a statute, and is generally denominated the Habeas Corpus Act.f It is a veiy common mistake, and that not only among foi-eigners, but many from whom some knowledge of oar constitutional laws might be expected, to suppose that this stat- ute of Charles II. enlarged in a great de- gi'ee our liberties, and forms a sort of epoch in their histoiy ; but though a very benefi- cial enactment, and eminently remedial in many cases of illegal imprisonment, it intro- duced no new principle, nor conferred any * In this session, Feb. 14, a committee was ap- pointed to inspect the laws, and consider how the king may commit any subject by his immediate warrant, as the law now stands, and report the same to the House, and also how the law now stands touchingr commitments of persons by the council-table. Ralph supposes fp. 25.5) that this gave rise to the Habeas Corpus Act, which is cer- tainly not the case. The statute 16 Car. I., c. 10, seems to recognize the legality of commitments by the king's special waiTant, or by the privy council, or some, at least, of its members singly ; and prob- ably this, with long usage, is sufficient to support the controverted authority of the secretary of state. As to the privy council, it is not doubted, 1 believe, that they may commit. But it has been held, even in the worst of times, that a warrant of commit- ment under the king's own hand, without seal, or the hand of any secretary, or officer of state, or jus- tice, is bad.— 2 Jac. II., B. R. 2 Shower, 484. t In the Parliamentary History, 845, we find a debate on the petition of one Harrington to the Commons, in 1677, who had been committed to close custody by the council. But as his demeanor was alleged to have been disrespectful, and the right of the council to commit was not disputed, and es- pecially as he seems to have been at liberty when tlie debate took place, no jjroceedings ensued, though the commitment had not been altogether regular. Ralph {p. 314) comments more severely on the behavior of the House than was necessarj'. t 31 Car. II., c. 2. right upon the subject. From the earliest records of the English law, no freemaa could be detained in prison except upon a criminal charge or conviction, or for a civil debt. In the former case, it was always m his power to demand of the Court of King's Bench a writ of habeas coi-pus ad subjicien- dum, directed to the person detaining him in custody, by which he was enjoined to bring up the body of the prisoner, with the wan-ant of commitment, that the court might judge of its sufficiency, and remand the party, admit him to bail, or discharge him, according to the nature of the charge. This writ issued of right, and could not be re- fused by the court. It was not to bestow an immunity from arbitrary imprisonment, which is abundantly provided in Magna Charta (if, indeed, it were not much more ancient), that the statute of Charles II. was enacted ; but to cut off the abuses, by which the government's lust of power, and the servile subtlety of crown lawyers, had im- paired so fundamental a privilege. There had been some doubts whether the Court of Common Pleas could issue this writ ; and the Court of Exchequer seems never to have done so.* It was also a ques- tion, and one of more impoitance, as we have seen in the case of .lenkes, whether a single judge of the Court of King's Bench could issue it during the vacation. The statute therefore enacts, that where any person, other than persons convicted or in execution upon legal process, stands com- mitted for any crime, except for treason or felony plainly expressed in the warrant of commitment, he may, during the vacation, complain to the chancellor, or any of the twelve judges, who, upon sight of a copy of the waiTant, or an affidavit that a copy is denied, shall award a habeas corpus directed to the officer in whose custody the party shall be, commanding him to bring up the body of his prisoner within a time limited, according to the distance, but in no case ex- ceeding twenty days, who shall discharge the party from imprisonment, taking surety for his appearance in the court wherein his offense is cognizable. A jailer refusing a copy of the warrant of commitment, or not * The puisne judges of the Common Pleas grant- ed a habeas corpus, against the opinion of Chief- justice Vaughan, who denied the court to have that power. — Carter's Reports, 221. Cha n.— Constitution.] FROM HENRY VII. TO GEORGE H. 501 obeying the writ, is subjected to a penalty of d£] 00 ; and oven the judge denying a ha- beas corpus, when required according to this act, is made liable to a penalty of c£500, at the suit of the injured party. The Court of King's Bench had already been accustomed to send out their writ of habeas corpus into all places of peculiar and privi- leged jurisdiction, where this ordinary pro- cess does not run, and even to the island of Jersey, beyond the strict limits of the king- dom of England;* and this power, which might admit of some question, is sanctioned by a declaratory clause of the present stat- ute. Another section enacts that " no sub- ject of this realm that now is, or hereafter shall be, an inhabitant or resiant of this king- dom of England, dominion of Wales, or town of Berwick-upon-Tweed, shall be sent pris- oner into Scotland, Ireland, Jersey, Guern- sey, Tangier, or into parts, garrisons, isl- ands, or places beyond the seas, which are, or at any time hereafter .shall be, within or without the dominions of his majesty, his heirs, or successors," under penalties of the heaviest nature short of death which the law then knew, and an incapacity of receiving the king's pardon. The gr-eat rank of those who were likely to offend against this part of the statute was, doubtless, the cause of this unusual severity. But as it might still be practicable to evade these remedial provisions by expressing some matter of treason or felony in the war- rant of commitment, the judges not being empowered to inquire into the truth of the facts contained in it, a further security against any protracted detention of an in- nocent man is afforded by a provision of great importance ; that every person com- mitted for treason or felony, plainly and specially expressed in the warrant, may, unless he shall be indicted in the next term, or at the next sessions of general jail deliv- ery after his commitment, be, on prayer to the court, released upon bail, unless it shall appear that the crown's witnesses could not be produced at that time ; and if he shall not be indicted and ti-ied in the second term * The Court of King's Bench directed a habeas corpus to the governor of Jersey, to bring up the body of Overton, a well-known officer of tlie com- monwealth, wlio had been confined there several years. — Siderfin's Reports, 386. This was in 16G8, after the fall of Clarendon, when a less despotic system was introduced. or sessions of jail delivery, he shall be dis- charged. The remedies of the Habeas Corpus Act are so effectual that no man can possibly en- dure any long imprisonment on a criminal charge, nor would any minister venture to exercise a sort of oppression so dangerous to himself; but it should be observed that, as the statute is only applicable to cases of commitment on such a charge, eveiy other species of restraint on personal liberty is left to the ordinary remedy as it subsisted be- fore this enactment. Thus a party detained without any warrant must sue out his ha- beas corpus at common law ; and this is at present the more usual occurrence ; but the judges of the King's Bench, since the stat- ute, have been accustomed to issue this writ during the vacation in all cases what- soever. A sensible difficulty has, however, been sometimes felt, from their incompe- tency to judge of the ti'Utli of a return made to the writ ; for though, in cases within the statute, the prisoner may always look to his legal discharge at the next sessions of jail deliveiy, the same redress might not always be obtained when he is not in custody of a common jailer. If the person, therefore, who detains any one in custody should think fit to make a return to the writ of habeas corpus, alleging matter sufficient to justify the party's resti-aint, yet false in fact, there would be no means, at least by this summa- ry process, of obtaining relief. An attempt was made in 1757, after an examination of the judges by the House of Lords as to the extent and efficiency of the habeas corpus at common law, to render their jurisdiction more remedial.* It failed, however, for the time, of success ; but a statute has recently been enacted, f which not only extends the power of issuing the writ during the vaca- tion, in cases not within the act of Charles II., to all the judges, but enables the judge, before whom the writ is returned, to in- quire into the truth of the facts alleged therein, and in case they shall seem to him doui)tful, to release the party in custody, on giving surety to appear in the court to which * See the Lords' questions and answers of tho judges in Pari. Hist., xv., 898 ; or Bacon's Abridg- ment, tit. Habeas Corpus ; also, Wilmot's Judg- ments, 81. This arose out of a case of impress- ment, where the expeditious remedy of habeas corpus is eminently necessary. t 56 Geo. III., c. 100. 502 CONSTITUTIONAL HISTORY OF ENGLAND [CHiP. xin. such judge shall belong, on some day in the ensuing term, when the court may examine bj' affidavit into the tiuth of the facts alleged in the return, and either remand or dis- charge the party, according to their discre- tion. It is also declared that a writ of ha- beas corpus shall ma to any harbor or road on the coast of England, tliough out of the body of any county ; in order, I presume, to obviate doubts as to the effects of this rem- edy in a kind of illegal detention, more like- ly, perhaps, than any other to occur in mod- ern times, on board of vessels upon the coast. Except a few of this description", it is very rare for a habeas corpus to be re- quired in any case where the government can be presumed to have an interest. The reign of Charles II. was hardly more Differences remarkable by the vigilance of the Lordrand House of Commons against arbitra- Coninions. ry prerogative than by the warfare it waged against whatever seemed an en- croachment or usurpation in the other house of Parliament. It has been a peculiar hap- piness of our Constitution that such dissen- sions have so rarely occurred. I can not recollect any Republican government, an- cient or modern (except, perhaps, some of the Dutch provinces), where hereditary and democratical authority have been amal- gamated so as to preseiTe both in effect and influence, without continual dissatisfaction and reciprocal encroachments ; for though, in the most ti-anquil and prosperous season of the Roman state, one consul, and some magistrates of less importance, were inva- riably elected from the patrician families, these latter did not form a corporation, nor bad any collective authority in the govern- ment. The history of monarchies, including, of course, all states where tlie principality is lodged in a single person, that have ad- mitted the ainstocratical and popular tem- peraments at the same time, bears frequent witness to the same jealous or usurping spirit. Yet monarchy is unquestionably more favorable to the coexistence of an he- reditary body of nobles with a representa- ; tion of the commons than any other form [ of commonwealth ; and it is to the high pre- rogative of the English crown, its exclu- sive disposal of offices of trust, which are the ordinaiy subjects of contention, its power of putting a stop to Parliamentary disputes by a dissolution, and, above aU, to the ne- cessity which both the Peers and the Com- mons have often felt, of a mutual good un- derstanding for the maintenance of their privileges, that we must in a gi'eat measure attribute the general harmony, or at least the absence of open schism, between the two houses of Parliament. This is, howev- er, still more owing to the happy graduation of ranks, which renders the elder and the younger sons of our nobility two links in the unsevered chain of society ; the one trained in the school of popular rights, and accus- tomed, for a long portion of their lives, to regard the privileges of the House whereof they form a part, full as much as those of their ancestors ;* the other falling without hereditaiy distinction into the class of other commoners, and mingling the sentiments natural to their birth and family affections with those that are more congenial to the whole community. It is owing, also, to the wealth and dignity of those ancient families, who would be styled noble in any other country, and who give an aristocratical char- acter to the popular part of our Legislature, and to the influence which the peers them- selves, through the representation of small boroughs, are enabled to exercise over the Lower House. The original Constitution of England was highly aristocratical. The peei-s judicial pow- of this realm, when summoned lo^js 'hi^tor- to Parliament (and on such oc- '"Hy traced, casions eveiy peer was entitled to his writ), were the necessaiy counselors and coadju- tors of the king in all the functions that ap- pertain to a government. In granting mon- ey for the public service, in changing by permanent statutes the course of the com- * It was ordered, 21st of Jan., 1549, that the eld- est son of the Earl of Bedford should continue in the House after his father had succeeded to the peerage ; and 9th of Feb., 1575. that his son should do so, " according to the precedent in the Uke case of the now earl his father." It is worth}- of notice, that this determination, which, at the time, seems to have been thought doubtful, though very un- reasonably (Journals, 10th of Feb.), but which has had an influence which no one can fail to acknowl- I edge, in binding together the two branches of the I Legislature, and in keeping alive the sympathy for public and popular rights in the English nobil- ity (that sensus communis, which the poet thought so rare in high rank), is first recorded, and that twice over, in behalf of a family, iu whom the love of constitutional freedom has become hereditary, and who may be justly said to have deser%-ed, like the Valerii at Rome, the surname of Publicolje. Cha. n— Constitution.] FROM HENBY Vn. TO GEORGE n. 503 nion Inw, they could only act in conjunction with the knights, citizens, and bm-gesses of the Lower House of Parliament. In re- dress of grievances, whether of so private a nature as to affect only single persons or extending to a county or hundred, whether proceeding from the injustice of public offi- cers or of powerful individuals, whether de- manding punishment as crimes against the state, or merely restitution and damages to the injured party, the lords assembled in Parliament were competent, as we find in our records, to exercise the same high pow- ers, if they were not even more extensive and remedial, as the king's ordinary coun- cil, composed of his great officers, his judg- es, and perhaps some peei-s, was wont to do in the intervals of Parliament. These two, the Lords and the privy council, seem to have formed, in the session, one body or gi-eat council, wherein the latter had orig- inally right of suffi-age along with the for- mer. In this judicial and executive author- ity, the Commons had at no time any more pretense to interfere, than tlie council or the Loi-ds by themselves had to make ordi- nances, at least of a general and permanent nature, which should bind the subject to obedience. At the beginning of every Par- liament numerous petitions were presented to the Lords, or to the king and Lords (since he was frequently there in person, and always presumed to be so), complaining of civil injuries and abuse of power. These were generally indorsed by appointed re- ceivers of petitions, and returned by them to the proper court whence relief was to be sought ;* for an immediate inquiry and remedy seem to have been rarely granted, except in cases of an extraordinaiy nature, when the law was defective, or could not easily be enforced by the ordinaiy tribunals, the shortness of sessions and multiplicity of affairs preventing the Upper House of Par- liament from entering so fully into these matters as the king's council had leisure to do. It might, perhaps, be well questioned, not- withstanding the respectable opinion of Sir M. Hale, whether the statutes directed * The form of appointing receivers and tryers of petitions, though intennitted daring the reign of William III., was revived afterward, and finally not discontinued without a debate in the House of Lords, and a division, ia 1740. — Pari. Hist., si., .1013. against the prosecution of civil and criminal suits before the council are so worded as to exclude the original jurisdiction of the House of Lords, though their principle is very adverse to it ; but it is remarkable that, so far as the Lords themselves could allege from the rolls of Parliament, one only in- stance occurs between 4 Hen. IV". (1403) and 43 Eliz. (1602) where their House had entered upon any petition in the nature of an original suit, though in that (1 Ed. IV., 1461) they had certainly taken on them to determine a question cognizable in the common courts of justice ; for a distinction seems to have been generally made between cases where relief might be had in the courts below, as to which it is contended by Hale that the Lords could not have ju- risdiction, and those where the injured par- ty was without remedy, either through de- fect of the law, or such excessive power of the aggressor as could defy the ordinary process. During the latter part, at least, of this long interval, the council and Court of Star Chamber were in all their vigor, to which the intermission of Parliamentary judicature may in a great measure be as- cribed. It was owing, also, to the longer intervals between Parliaments from the time of Henry VI., extending sometimes to five or six years, which rendered the re- dress of private wrongs by their means in- convenient and uncertain. In 1621 and 1624, the Lords, grown bold by the general disposition in favor of Parliamentary rights, made orders without hesitation on private petitions of an original nature. They con- tinued to exercise this juiisdiction in the first Parliaments of Charles I. ; and in one instance, that of a riot at Banbury, even as- sumed the power of punishing a misdemean- or unconnected with privilege. In the Long Parliament, it may be supposed that they did not abandon this encroachment, as it seems to have been, on the royal authority, extending their orders both to the punish- ment of misdemeanors and to the awarding of damages.* The ultimate jurisdiction of the House of Lords, either by removing into it causes commenced in the lower courts, or by writ of error complaining of a judgment given therein, seems to have been as ancient, and * Hargrave, p. 60. The proofs are in the Lords' Journals. 504 CONSTITUTIONAL HISTORY OF ENGLAND [Chap. Xin. founded on the same principle of a para- mount judicial authority delegated by the crown, as that which they exercised upon original petitions. It is to be observed, that the council or Star Chamber did not pretend to any direct jurisdiction of this nature ; no record was ever removed thither upon as- signment of eiTors in an inferior court. But after the first part of the fifteenth centuiy, there was a considerable interval, during which this appellant jurisdiction of the Lords seems to have gone into disuse, though probably known to be legal.* They began again, about 1580, to receive writs of error from the Court of King's Bench, though for foity years more the instances were by no means numerous ; but the stat- ute passed in 1585, constituting the Court of Exchequer Chamber as an intermediate tribunal of appeal between the King's Bench and the Parliament, recognizes the jurisdic- tion of the latter, that is, of the House of Lords, in the strongest terms. f To this power, therefore, of determining, in the last resort, upon writs of error from the couits of common law, no objection could possibly be maintained. The revolutionary spirit of the Long Their preten- Parliament brought forward still sions about higher pretensions, and obscured the time of ° ' , ^ . . the Restora- all the landmarks or constitution- al privilege. As the Commons took on themselves to direct the execution of their own orders, the Lords, afraid to be jostled out of that equality to which they were now content to be reduced, asserted a similar claim at the expense of the king's prerogative. They returned to their own House on the Restoration with confused notions of their high jurisdiction, rather en- hanced than abated by the humiliation they had undergone. Thus, before the king's arrival, the Commons having sent up for their concuiTcnce a resolution that the per- sons and estates of the regicides should be seized, the Upper House deemed it an en- * They were very rare after tlie accession of Henry V. ; but one occurs in 10th Hen. VI., 1432, vpith which Hale's list concludes. — Hargrave's Preface to Hale, p. 7. This editor justly observes, that the incomplete state of the votes and early journals renders the negative proof inconclusive ; though we may be fully warranted in asserting that from Henry V. to James I. there was very little exercise of judicial power in Parliament, ei- ther civilly or crimiually. t 27th Eliz., c. 8. croachment on their exclusive judicature, and changed the resolution into " an order of the Lords on complaint of the Com- mons."* In a conference on this subject between the two Houses, the Commons de- nied their lordships to possess an exclusive jurisdiction, but did not press that matter.f But, in fact, this order was rather of a legislative than judicial nature : nor could the Lords pretend to any jurisdiction in cases of treason. They artfully, however, overlooked these distinctions, and made or- ders almost daily in the session of 1660, trenching on the executive power and that of the inferior courts. Not content with ordering the estates of all peers to be re- stored, free from seizure by sequestration, and with all arrears of rent, we find in their Journals that they did not hesitate, on peti- tion, to stay waste on the estates of private persons, and to secure the tithes of livings, from which ministers had been ejected, in the hands of the churchwardens till their title could be tried. t They acted, in short, as if they had a plenary authority in mat- ters of fi'eehold right, where any member of their own House was a party, and ia eveiy case as full and eqpiitable jurisdiction as the Court of Chancery. Though in the more settled state of tilings which ensued, these anomalous orders do not so frequently occur, we find several assumptions of pow- er which show a disposition to claim as much as the circumstances of any particular case should lead them to think expedient for the parties, or honorable to themselves.§ * Lords' Journals, May 18, 1660. t Commons' Jounials, May 22. t Lords' Journals, June 4, 6, 14, 20, 22, et alibi soepe. "Upon information given that some person in the late times had carried away goods from the house of the Earl of Northampton, leave was giv- en to the said earl, by his servants and agents, to make diligent and narrow search in the dwelling- houses of certain persons, and to break open any door or trunk that shall not be opened in obedience to the order," June 26. The like order was made next day for the Marquis of Winchester, the Earls of Derby and Newport, &c. A still more extraor- dinary vote was passed August 16. Lord Mohun having complained of one Keigwin, and his attor- ney Danby, for suing him by common process in Michaelmas tenn, 1651, in breach of privilege of peerage, the House voted that he should have damages : nothing could be more scandalously un- just, and against the spirit of the Bill of Indemni- ty. Three Presbyterian peers protested. § They resolved in the case of the Earl of Pem- Cha. II.— Constitution.] FROM HENRY VII. TO GEORGE II. 505 The Lower House of Parliament, which _ hardly reckoned itself lower in Resistance *' made by the dignity, and was something more Commons, ^.j^,^^^ equal in substantial power, did not look without jealousy on these pre- tensions. They demurred to a privilege asserted by the Lords of asses.sing them- selves in bills of direct taxation ; and having on one occasion reluctantly permitted an amendment of that nature to pass, took care to record their dissent from the principle by a special entry in the journal.* An amendment liaving been introduced into a bill for regulating the press, sent up by the Commons in the session of 1661, which exempted the houses of peers from search for unlicensed books, it was resolved not to agree to it; and the bill dropped for that time.f Even in far more urgent circum- stances, while the Parliament sat at Oxford in the year of the plague, a bill to prevent the progress of infection was lost, because the Lords insisted that their houses should not be subjected to the general provisions for security. t These ill-judged demonstra- tions of a design to exempt themselves from that equal submission to the law which is required in all well-governed states, and had ever been remarkable in our Constitution, naturally raised a prejudice against the Lords, both in the other house of Parlia- ment, and among the common lawyers. This half-suppressed jealousy soon dis- Dispute closed itself in the famous contro- orig'inai'fu- versy between the two Houses risdiciion, about the case of Skinner and the East Ladia Company. This began by a pe- tition of the former to the king, wherein he complained that, liaving gone as a merchant to the Indian Seas, at a time when there was no restriction upon that trade, the East India Company's agents had plundered his property, taken away his ships, and dispos- sessed him of an island which he had pur- chased from a native prince. Conceiving that he could have no sufficient redress in the ordinary courts of justice, he besought his sovereign to enforce reparation by some other means. After several ineffectual at- tempts by a committee of the privy council to bring about a compromise between the broke, Jan. 30, 1678, that the single testimony of a commoner is not sufficient against a peer. * Journals, Aug. 2 and 15, 1660. t Id., July 29, 16G1. t Id., Oct. 31, 1665. parties, the king transmitted the documents to the House of Lords, with a recommen- dation to do justice to the petitioner. They proceeded, accordingly, to call on the East India Company for an answer to Skinner's allegations. The Company gave in what is technically called a plea to the jurisdiction, which the House overruled. The defend- ants then pleaded in bar, and contrived to delay the inquiry into the facts till the next session ; when the proceedings having been renewed, and the plea to the Lords' juris- diction again oft'ered, and overruled, judg- ment was finally given that the East India Company should pay e£bOOO damages to Skinner. Meantime, the Company had presented a petition to the House of Com- and that in mens against the proceedings of »PP«f'^ 1'°°^ to r a courts of the Lords in this business. It equity, was refeiTed to a committee, who had al- ready been appointed to consider some oth- er cases of a like nature. They made a re- port, which produced resolutions to this ef- fect : that the Lords, in taking cognizance of an original complaint, and that relievable in the ordinai-y course of law, had acted il- legally, and in a manner to deprive the sub- ject of the benefit of the law. The Lords, in return, voted, " That the House of Com- mons entertaining the scandalous petition of the East India Company against the Lords' house of Parliament, and their pro- ceedings, examinations, and votes thereupon had and made, are a breach of the privile- ges of the House of Peers, and contrary to the fair correspondency which ought to be between the two houses of Parliament, and unexampled in former times ; and that the House of Peers, taking cognizance of the cause of Thomas Skinner, merchant, a per- son highly oppressed and injured in East India by the governor and company of mer- chants trading thither, and overruling the plea of the said company, and adjudging 6£5000 damages thereupon against the said governor and company, is agreeable to the laws of the land, and well wairanted by the law and custom of Parliament, and justified by many Parliamentary precedents ancient and modern." Two conferences between the Houses, according to the usage of Parliament, en- sued, in order to reconcile this dispute. But it was too material in itself, and aggi'a- 506 CONSTITUTIONAL HISTOEY OP ENGLAND (Chap. XIII. vated by too much previous jealousy, for any voluntaiy compromise. The prece- dents alleged to prove an original jurisdic- tion in the peers were so thinly scattered over the records of centuries, and so con- traiy to the received piinciple of our Con- stitution, that questions of fact are cogniza- ble only by a jury, that their managers in the conferences seemed less to insist on the general right than on a supposed inability of the courts of law to give adequate redress to the present plaintiff ; for which the judges had furnisned some pretext on a reference as to their own competence to afford relief, by an answer more naiTow, no doubt, than would have been rendered at the present day ; and there was really more to be said, both in reason and law, for this limited right of judicature, than for the absolute cogni- zance of civil suits by the Lords ; but the Commons were not inchned to allow even of such a special exception from the princi- ple for which they contended, and intimated that the power of affording a remedy in a defect of the ordinaiy tribunals could only reside in the whole body of the Parliament. The proceedings that followed were in- temperate on both sides. The Commons voted Skinner into custody for a breach of privilege, and resolved that whoever should be aiding in execution of the order of the Lords against the East India Company should be deemed a betrayer of the hberties of the Commons of England, and an infring- er of the privileges of the House. The Lords, in return, committed Sir Samuel Barnardiston, chairman of the Company, and a member of the House of Commons, to prison, and imposed on him a fine of c£500. It became necessaiy for the king to stop the course of this quarrel, which was done by successive adjournments and pi-orogations for fifteen months ; but on their meeting again in October, 1669, the Commons pro- ceeded instantly to renew the dispute. It appeared that Barnardiston, on the day of the adjournment, had been released from custody, without demand of his fine, which, by a trick rather unworthy of those who had resorted to it, was entered as paid on the records of the Exchequer. This was a kind of victory on the side of the Commons ; but it was still more material that no steps had been taken to enforce the order of the Lords against the East India Company. I The latter sent down a bill concerning priv- ilege and judicature in Parliament, which the other House rejected on a second read- ing. They, in return, passed a bill vacating the proceedings against Barnardiston, which met with a like fate. In conclusion, the king recommended an erasure from the Journals of all that had passed on the sub- ject, and an entire cessation ; an expedient which both Houses willingly embraced, the one to secure its victory, the other to save its honor. From this time the Lords have tacitly abandoned all pretensions to an orig- inal jurisdiction in civil suits.* They have, however, been more success- ful in establishing a branch of their ultimate jurisdiction, which had less to be urged for it in respect of precedent, that of hearing appeals from courts of equity. It is proved by Sir Matthew Hale and his editor, Mr. Hargrave, that the Lords did not entertain petitions of appeal before the reign of Charles I., and not, perhaps, unequivocally before the Long Parliament.! They became very common from that time, though hardly more so than original suits ; and, as they bore no analogy, except at first glance, to writs of error, which come to the House of Lords by the king's express commission under the gi-eat seal, could not well be defended on le- gal grounds ; but, on the other hand, it was reasonable that the vast power of the Court of Chancery should be subject to some con- trol ; and though a commission of review, somewhat in the nature of the Court of Delegates in ecclesiastical appeals, might have been and had been occasionally ordered by the crown, t yet, if the ultimate jmisdic- tion of the peerage were convenient and sal- utary in cases of common law, it was diffi- cult to assign any satisfactory reason why it should be less so in those which are tect- nically denominated equitable. § Nor is it * For the whole of tliis business, wliich is erased from the Journals of both Houses, see State Trials, v., 711. Pai-1. Hist., iv., 431, 443. Hatsell's Prece- dents, iii., 336, and Hargrave's Preface to Hale's Jurisdiction of the Lords, 101. [A slight attempt to reWve the original jurisdiction was made by the Lords in 1702.— Id., 196.] t Hale says, "I could never get to any prece- dent of greater antiquity than 3 Car. I., nay, scarce before 16 Car. I., of aoy such proceeding in the Lords' House. ' — C. 33 ; and see Hargrave's Pref- I ace, 53. " t c 31. I § It was ordered in a petition of Robert Roberts, I Esq., that directions be given to the lonl-cbancellor QHi. II.— Constitution.] FROM HENRY VII. TO GEORGE 11. 507 likely that the Commons would have disput- ed this usurpation, in which the crown had acquiesced, if the Lords had not received appeals against inenil)ors of the other House. Three instances of this took |)lacc aliout the year 1675; but that of Shirley against Sir John Fagg is the most celebrated, as having given rise to a conllict between the two Houses as violent as that which had occiu'- red in the business of Skinner. It began altogether on the score of privilege. As members of the House of Commons were exempted from legal process during the ses- sion by the genei-al privilege of Parliament, they justly resented the pretensions of the peers to disregard this immunity, and com- pel them to appear as respondents in cases of appeal. In these contentions neither party could evince its superiority but at the expense of innocent persons. It was a con- tempt of the one House to disobey its or- der, of the other to obey it. Four counsel, who had pleaded at the bar of the Lords in one of the cases where a member of the other House was concerned, were taken into custody of tlie sergeant-at-arms by the speaker's warrant. The gentleman usher of the black rod, by warrant of the Lords, empowering him to call all pei'sons neces- saiy to his assistance, set them at liberty. The Commons apprehended them again ; and, to prevent another rescue, sent them to the Tower. The Lords disjiatched their usher of the black rod to the lieutenant of the Tower, commanding him to deliver up the said persons. He replied that they were committed by order of the Commons, and he could not release them without their order ; just as, if the Lords were to commit any persons, he could not release them with- out their lordships' order. They addressed the king to remove the lieutenant ; but, af- tliat he proceed to make a speedy decree in tlie Court of Chancery, according to efiuity and justice, notwithstanding there he not any precedent in tlie case. Against this Lords Mohun and Lincoln severally protested ; the latter very sensibly ob- een'inp, that wliereas it hath been tlic prudence and care of foniier ParUamcnts to set hraits and bounds to tlie jurisdiction of Chancery, now this or- der of directions, which implies a command, opens a gap to set op an arbitrary power in the Chan- cery, which is hereby countenanced by the House of Lords to act, not according to the accustomed rules or former precedents of that court, but ac- fcording to his own will. — Lords' Journals, 29th of Nov., 1C64. tor some hesitation, ho declined to comply with their desire. In this difficulty, they liad recourse, instead of the warrant of the Lords' speaker, to a writ of habeas corpus returnable in Parliament ; a proceeding not usual, but the legality of which seems to be now admitted. The lieutenant of the Tow- er, who, rather unluckily for the Lords, had taken the other side, eitlu^r out of convic- tion, or from a sense that the Lower House were the stronger and more formidable, in- stead of obeying the writ, came to the bar of the Commons for directions. They vot- ed, as might be expected, that the writ was contrary to law and the privileges of their House ; but in tliis ferment of two jealous and exasperated assemblies, it was highly necessaiy, as on the former occasion, for the king to interpose by a prorogation for three months. This [leriod, however, not being sufficient to allay their animosity, the House of Peers took up again the appeal of Shirley in their next session. Fresh votes and orders of equal intemperance on both sides ensued, till the king, by the long prorogation, from November, 1G75, to Fob- ruaiy, 1C77, put an end to the dispute. The particular appeal of Shirley was never revived ; but the Lords continued without objection to exercise their general jurisdic- tion over appeals from courts of equity.* The learned editor of Hale's Treatise on the Jurisdiction of the Lords expresses some de- gree of surprise at the Commons' acquies- cence in what they had treated as a usurpa- tion ; but it is evident from the whole course of proceeding that it was the breach of privi- lege in citing their own members to appear, which excited their indignation. It was but incidentally that they observed in a confer- ence " that the Commons can not find, by Magna Charta, or by any other law or an- cient custom of Parliament, that your lord- ships have any jurisdiction in cases of appeal from courts of equity." They afterward, in- deed, resolved that there lies no np])eal to the judicature of the Lords in Parliament from courts of equity ;f and came ultimately, as their wrath increased, to a vote, " That whosoever shall solicit, plead, or prose- * It was tlirown out against them by the Com- mons in their angry conferences about the husiness of Ashby and White, in 1704, but not with any se- rious intention of opposition. t Commons' Journals, May 30, 508 CONSTITUTIONAL HISTORY OF ENGLAND [Chap. XITL Question of the exclusive right of the Commons as to money- biUs. cute any appeal against any commoner of England, from any court of equity, before the House of Lords, shall be deemed and taken a betrayer of the rights and liberties of the Commons of England, and shall be proceeded against accordingly ;"* which vote the Lords resolved next day to be " il- legal, unpai-liamentary, and tending to a dis- solution of the government."t But this was evidently rather an act of hostility arising out of the immediate quarrel than the calm assertion of a legal principle. t During the interval between these two dissensions, which the suits of Skinner and Shirley engendered, another difference had arisen, somewhat less violently conduct- ed, but wherein both Houses considered their essential privileges at stake. This concerned the long-agitated question of the right of the Lords to make alterations in money-bills. Though I can not but think the importance of their exclusive privilege has been rather exaggerated by the House of Commons, it deserves attention, more es- pecially as the embers of that fire may not be so wholly extinguished as never again to show some ti'aces of its heat. In our earliest Parliamentary records, the Lords and Commons, summoned Its history. . r i r m a great mesisui-e lor the sake oi relieving the king's necessities, appear to have made their several gi-ants of supply without mutual communication, and the lat- ter generally in a higher proportion than the former. These were not in the form of * Id., Nov. 19. Several divisions took place in the course of this business, and some rather close ; the court endeavoring to allay the fire. The vote to take Sergeant Pemberton into custody for ap- pearing as counsel at the Lords' bar was only car- ried by 154 to 146, on June 1. t Lords' Journals, Nov. 20. X Lords' and Commons' Journals, May and No- vember, 1675. Pari. Hist., 721, 791. State Trials, vi., 1121. Hargrave'a Preface to Hale, 135 ; and Hale's Treatise, c. 33. It may be observed, that the Lords learned a ht- tle caution in this affair. An appeal of one Cot- tington from the Court of Delegates to their House was rejected, by a vote that it did not properly be- long to them, Shaftesbury alone dissentient, June 17, 1678. Yet they had asserted their right to re- ceive appeals from inferior courts, that there might be no failure of justice, in terms large enough to embrace the ecclesiastical jurisdiction. May 6, 1675. And it is said that they actually had done so in 1628. — Hargrave, 53. laws, nor did they obtain any formal assent from the king, to whom they were tendered in written indentures, entered afterward on the roll of Parliament. The latest instance of such distinct grants from the two Houses, as far as I can judge from the rolls, is in the 18th year of Edward IH ;* but in the 22d year of that reign the Commons alone grant- ed three fifteenths of their goods, in such a manner as to show beyond a doubt that the tax was to be levied solely upon themselves. f After this time, the Lords and Commons are jointly recited in the roUs to have grant- ed them, sometimes, as it is expressed, upon deliberation had together. In one case it is said that the Lords, with one assent, and aftenvard the Commons, granted a subsidy on exported wool.J A change of latiguage is observable in Richard II. 's reign, when the Commons are recited to grant with the assent of the Lords ; and this seems to in- dicate, not only that in practice the vote used to originate with the Commons, but that their proportion, at least, of the tax being far greater than that of the Lords (espe- cially in the usual impositions on wool and skins, which ostensibly fell on the exporting merchant), the gi-ant was to be deemed mainly theirs, subject only to the assent of the other hoase of Parliament. This is, however, so explicitly asserted in a remark- able passage on the roll of 9 Hen. IV., without any apparent denial, that it can not be called in question by any one.§ The language of the rolls continues to be the same in the following reigns ; the Commons are the granting, the Lords the consenting power. It is even said by the Court of King's Bench, in a year-book of Edward IV., that a grant of money by the Com- mons would be binding without assent of the Lords ; meaning, of course, as to com- moners alone. I have been almost led to suspect, by considering this remarkable ex- clusive privilege of originating grants of money to the cj'own, as well as by the lan- guage of some passages in the rolls of Par- liament relating to them, that no part of the direct taxes, the tenths or fifteenths of goods, were assessed upon the lords tempo- ral and spiritual, except where they are pos- ' Rot. Pari., ii., 148. t Id., 200. i Id.. 300 (43 Edw. IH.). § Rot. Pari., iii., 611. View of Middle Ages, IL, 310. Cha. n. — Oonstitutiou.] FROM HENRY VII. TO GEORGE II. 509 itively mentioned, which is frequently the case. But, as I do not remember to have seen this any where asserted by those who have turned their attention to the antiqui- ties of our Constitution, it may possibly be au unfounded surmise, or, at least, only ap- plicable to the earlier period of our Parlia- mentary records. These grants continued to be made as before, bj- the consent, indeed, of the houses of Parliament, but not as legislative enact- ments. Most of the few instances where tliey appear among the statutes are where some condition is annexed, or some relief of grievances so interwoven with tliem that they make part of a new law.* In the reign of Henry VII. they are occasionally insert- ed among the statutes, though still without any enacting words, f In that of Henry VIII. the form is rather more legislative, and they are said to be enacted by the au- thority of Parliament, though the king's name is not often mentioned till about the conclusion of his reign ;t after which, a sense of the necessity of expressing his legislative authority seems to have led to its introduc- tion in some part or other of the bill.§ The * 14 Edw. III., Stat. 1, c. 21 : this statute is re- markable for a promise of the Lords uot to assent in future to any charge beyond the old custom, without assent of the Commons in full Parliament. Stat. 2 same year : the king promises to lay on no charge but by assent of the Lords and Commons. 18 Edw. III., Stat. 2, c. 1 : the Commons grant two fifteenths of the commonaltj , and two tenths of the cities and boroughs. " Et en cas que notie signeur le roi passe la mer, de paier a mesmes les tems les quinzisme et disme del second an, et nemy en autre mauiere. Issint que les deniers de ce levez eoient despenduB, en les besoignes a eux monstez a cest parlement, par avis des grauntz a ce as- signez, et que les aides de la Trent soient mys en defense de north." Tliis is a remarkable prece- dent for the usage of appropriation, which had es- caped me, though I have elsewhere quoted that in 5 Rich, n., Stat. 2, c. 2 and 3. In two or three in- stances we iind grants of tenths and fifteenths in the statutes, without anj- other matter, as 14 Edw. III., Stat. 1, c. 20 ; 27 Edw. IIL, stat. 1, c. 4. t 7 Hen. VII., c. 11 ; 12 Hen. VII., c. 12. t I find only one exception, 5 Hen. VIII., c. 17, which was in the now common fomi: Be it enact- ed by the king our sovereign lord, and by the as- sent, &c. $ In 37 Hen. VIH., c. 25, both Lords and Com- mons are said to grant, and they pray that their grant " may be ratified and confirmed by his maj- esty's royal assent, so to be enacted and author- ized by virtue of this present Parliament as in such cases heretofore has been accustomed-" Lords and Commons are sometimes both said to gi'ant, but more frequently the latter with the former's assent, as continued to be the case through the reigns of Elizabeth and James I. In the first Parliament of Charles I. the Commons began to omit the name of the Lords in the preamble of bills of supply, reciting the grant as if wholly their own, but in the enacting words adopted the cus- tomary form of statutes. This, though once remonstrated against by the Upper House, has continued ever since to be the practice. The originating power as to taxation was thus indubitably placed in the House of Commons ; nor did any controversy arise upon that ground ; but they maintained, also, that the Lords could not make any amendment whatever in bills sent up to them for imposing, directly or indu'ecUy, a charge upon the people. There seems no proof that any difference between the two Houses on this score had arisen before the Restoration ; and in the Convention Parlia- ment, the Lords made several alterations ia undoubted money-bills, to which the Com- mons did not object ; but in 16C1, the Lords having sent down a bill for paving the streets of Westminster, to which they desired the concurrence of the Commons, the latter, on reading the bill a first time, " observing that it went to lay a charge upon the people, and conceiving that it was a privilege inherent in their House that bills of that nature should be first considered there," laid it aside, and caused another to be brought in.* When this was sent up to the Lords, they insert- ed a clause, to which the Commons disa- greed, as contrary to their privileges, be- cause the people can not have any tax or charge imposed upon them, but originally by the House of Commons. The Lords resolved this assertion of the Commons to be against the inherent privileges of the House of Peers; and mentioned one prec- edent of a similar bill iu the reign of Mary, and two in that of Elizabeth, which had be- gun with them. The present bill was de- feated by the imwillingness of either party to recede ; but for a few years after, though the point in question was still agitated, in- stances occur where the Commons suffered * Commons' Journals, 24th and 29th of July ; Lords' Journals, 30th of July. See, also, Hatsell's Precedents, iii., 100, for tliis subject of supply. 510 CONSTITUTIONAL HISTORY OF ENGLAND [Chap. Xlil. amendments in -what were now considered as money-bills to pass, and others where the Lords receded from them rather than defeat the proposed measure. In April, 1671, however, the Lords having reduced the amount of an imposition on sugar, it was resolved by the other House, " That in all aids given to the king by the Commons, the rate or tax ought not to be altered by the Lords."* This brought on several con- ferences between the Houses, wherein the limits of the exclusive privilege claimed by the Commons were discussed with consid- erable ability, and less heat than in the dis- putes concerning judicature ; but, as I can not help thinking, with a decided advantage both as to precedent and constitutional anal- ogy on the side of the peers, f If the Com- mons, as in early times, had merely gi'anted their own money, it would be reasonable that their House should have, as it claimed to have, " a fundamental right as to the mat- ter, the measure, and the time." But that the peers, subject to the same burdens as the rest of the community, and possessing no trifling proportion of the general wealth, should have no other alternative than to re- fuse the necessaiy supplies of the revenue, or to have their exact proportion, with all qualifications and circumstances attending their grant, presented to them unalterably by the other house of Parliament, was an anomaly that could hardly rest on any other ground of defense than such a series of prec- edents as establish a constitutional usage ; * They expressed this with sti'ange latitude in a resolution some years after, that all aids and sup- plies to his majesty in Parliam'ent are the sole gift of the Commons. — Pari. Hist., 1005. As they did not mean to deny that the Lords must concur in tlie bill, much less that they must pay their quota, this language seems indefensible. t Lords' and Commons' Journals, April 17th and 22d, 1679. Pari. Hist., iv., 480. HatseU's Prece- dents, iii., 109, 368, 409. In a pamphlet by Lord Anglesea, if I mistake not, entitled, " Case stated of the Jurisdiction of the House of Lords in point of Impositions," 1696, a vigorous and learned defense of the right of the Lords to make alterations in money-bills, it is ad- mitted that they can not increase the rates ; since that would be to originate a charge on the people, which they can not do. But it is even said in the Year-book, 33 Hen. VI., that if the Commons grant tonnage for four years, and the Lords reduce the | terms to two years, they need not send the bill down again. This, of course, could not be support- ed in modem times. while, in fact,* it could not be made out that such a pretension was ever advanced by the Commons before the present Parliament. In the short Parliament of April, 1640, the Lords having sent down a message, re- questing the other House to give precedency in the business they were about to matter of supply, it had been highly resented, as an infringement of their privilege ; and Mr. Pym was appointed to represent their com- plaint at a conference. Yet even then, in the fervor of that critical period, the boldest advocate of popular privileges who could have been selected was content to assert that the matter of subsidy and supply ought to begin in the House of Commons.* There seems to be still less pretext for the great extension given by the _ . ^ , ■ , , , , The right Commons to their acknowledged extended privilege of originating biUs of sup- ply. The principle was well adapted to that earlier period w^hen security against misgovernment could only be obtained by the vigilant jealousy and uncompromising firmness of the Commons. They came to the gi-ant of subsidy with real or feigned re- luctance, as the stipulated price of redress of grievances. They considered the Lords, generally speaking, as too intimately united with the king's ordinary council, which in- deed sat with them, and had, pei'haps, as late as Edward III.'s time, a deliberative voice. They knew the influence or intimidating as- cendency of the Peers over many of their own members. It may be doubted, in fact, whether the Lower House shook oft", ab- solutely and permanently, all sense of sub- ordination, or at least deference, to the Up- per, till about the close of the reign of Eliz- abeth. But I must confess, that when the wise and ancient maxim that the Commons alone can empower the king to levy the people's money was applied to a private bill for lighting and cleansing a certain town, or cutting dikes in a fen, to local and limited assessments for local benefit (as to which the crown has no manner of interest, nor has any thing to do with the collection), there was more disposition shown to make encroachments than to guard against those of others. They began soon after the Rev- olution to introduce a ^tiU more extraordi- nary construction of their privilege, not re- ceiving from the House of Lords any bill * Pari. Hist., ii., 563. Cha. n.— Constitntion.] FROM HENRY VII. TO GEORGE n. 511 which imposes a pecuniary penalty on of- fenders, nor permitting them to alter the application of such as had been imposed be- low.* These resti'ictions upon the other house of Parliament, however, are now become, in their own estimation, the standing privi- leges of the Commons. Several instances have occun-ed during the last century, though not, I believe, very lately, when bills, chiefly of a private nature, have been unan- imously rejected, and even thrown over the table by the speaker, because they contained some provision in which the Lords had tres- passed upon these alleged rights. f They are, as may be supposed, very differently regai'ded in the neighboring chamber. The Lords have never acknowledged any further privilege than that of originating bills of sup- ply ; but the good sense of both parties, and of an enlightened nation, who must witness and judge of their disputes, as well as the natural desire of the government to prevent in the outset any altercation that must im- pede the course of its measures, have ren- dered this little jealousy unproductive of those animosities which it seemed so happily contrived to excite. The one House, with- out admitting the alleged privilege, has gen- erally been cautious not to give a pretext for eagerly asserting it; and the other, on the trifling occasions where it has seemed, per- * The principles laid down by Hatsell are: 1. That in bills of supply, the Lords can make no al- teration but to correct verbal mistakes. 2. That in bills, not of absolute supply, yet imposing bur- dens, as turnpike acts, &c., the Lords can not al- ter the quantum of the toll, the persons to manage it, &c. ; but in other clauses they may make amendments. 3. That, where a charge may indi- rectly be thrown on the people by a bill, the Com- mons object to the Lords making amendments. 4. That the Lords can not insert pecuniai-y penalties in a bill, or alter those inserted by the Commons, iii., 137. He seems to boast that the Lords during the last century have very faintly opposed the claim of the Commons. But surely they have sometimes done so in practice, by returning a mon- ey-bill, or what the Lower House call one, amend- ed ; and the Commons have had recourse to the evasion of thi-owing out such bill, and bringing in another with the amendments inserted in it, which does not look very triumphant. t The lagt instance mentioned by Hatsell is in 1790, when the Lords had amended a bill for reg- ulating Warwick jail by changing the rate to be imposed from the landowners to the occupiers, iii., 131. I am not at present aware of any subsequent case, but rather suspect that such might be found. haps unintentionally, to be infringed, has commonly resorted to the moderate course of passing a fi'esh bill to the same effect, after satisfying its dignity by rejecting the first. It may not be improper to choose the present occasion for a summary state of the view of the constitution of both Upper House 1 >• 11 under the houses 01 Parliament under the Tudors and lines of Tudor and Stuart. Of their earlier history the I'eader may find a brief, and not, I believe, very incorrect ac- count, in a work to which this is a kind of sequel. The number of temporal lords summoned by writ to the Parliaments of the Augmenta- house of Plantagenet was exceed- Ji,™p°ra?* ingly various; nor was any thing lords, more common in the fourteenth centuiy than to omit those who had previously sat in person, and still more their descendants. They were rather less numerous for this reason, under the line of Lancaster, when the practice of summoning those who were not hereditary peers did not so much pre- vail as in the preceding reigns. Fifty-three names, however, appear in the Parliament of 1454, the last held before the commence- ment of the great contest between Yoi'k and Lancaster. In this troublous period of above thirty years, if the whole reign of Ed- ward IV. is to be included, the chiefs of many powerful families lost their lives in the field or on the scaffold, and their hon- ors perished with them by attainder. New families, adherents of the victorious party, rose in their place ; and sometimes an at- tainder was revei'sed by favor; so that the peers of Edward's reign were not much fewer than the number I have mentioned. Henry VII. summoned but twenty-nine to his first Parliament, including some whose attainder had never been judicially reversed ; a plain act of violence, like his previous usurpation of the crown. In his subsequent Parliaments the peerage was increased by fresh creations, but never much exceeded forty. The greatest number summoned by Henry VIII. was fifty-one, which continued to be nearly the average in the nest two reigns, and was veiy little augmented by Elizabeth. James, in his thoughtless pro- fusion of favor, made so many new crea- tions, that eighty-two peers sat in his first Parliament, and ninety-six in his latest. 512 CONSTITUTIONAL HISTORY OF ENGLAND [Chap. XIH. From a similar facility in granting so cheap a i-eward of service, and in some measure, perhaps, from the policy of counteracting a spirit of o))position to the court, which many of the lords had begun to manifest, Charles called no less than one hundred and seven- teen peers to the Parliament of 1628, and one hundred and nineteen to that of No- vember, 1640. Many of these honors were sold by both these princes ; a disgraceful and dangerous practice, unheard of in earlier times, by which the princely peerage of England might have been gradually leveled with the herd of foreign nobility. This has occasionally, though rarely, been suspected since the Restoration. In the Parliament of 1661, we find one hundred and thirty- nine lords summoned. The spiritual lords, who, though forming another estate in Parliament, have always been so united with the temporality that the suffrages of both upon every question are told indistinctly and numerically, com- posed in general, before the Reformation, a majority of the Upper House, though there was far more iiTegularity in the sum- monses of the mitred abbots and priors than those of the barons. But by the surrender and dissolution of the monasteries, about thirty-six votes of the clergy, on an average, were withdrawn from the Parliament ; a loss ill compensated to them by the creation of five new bishoprics. Thus, the number of the temporal peers being continually aug- mented, while that of the prelates was con- fined to twenty-six, the direct influence of the Church on the Legislature has become comparatively smaD ; and that of the crown, which, by the pernicious system of transla- tions and other means, is generally powerful with the Episcopal bench, has, in this re- spect at least, undergone some diminution. It is easy to perceive, from this view of the case, that the destruction of the monasteries, as they then stood, was looked upon as an indispensable preliminaiy to the Reforma- tion, no peaceable efforts toward which could have been effectual without altering the relative propoitions of the spiritual and temporal aristocracy. The House of Lords, during this period of the sixteenth and seventeenth centuries, were not supine in rendering their collective and individual rights independent of the crown. It became a fundamental princi- ple, according, indeed, to ancient authority, though not strictly observed in nider times, that every peer of full age is entitled to his writ of summons at the beginning of a Par- liament, and that the House will not proceed on business if any one has denied it.* The privilege of voting by proxy, which was origi- nally by special permission of the king, be- came absolute, though subject to such lim- itations as the House itself may impose. The wi'it of summons, which, as I have ob- served, had in earUer ages (if usage is to de- termine that which can rest on nothing but usage) given only a right of sitting in the Parliament for which it issued, was held, about the end of Elizabeth's reign, by a consti'uction founded on later usage, to con- vey an inheritable peerage, which was after- ward adjudged to descend upon heirs gen- eral, female as well as male ; an extension which sometimes raises intricate questions of descent, and though no materially bad consequences have flowed from it, is per- haps one of the blemishes in the constitution of Parliament. Doubts whether a peerage could be surrendered to the king, and wheth- er a territorial honor, of which hardly any remain, could be alienated along with the land on which it depended, were determined in the manner most favorable to the dignity of the aristocracy. They obtained, also, an important privilege ; first, of recording their dissent in the Journals of the House, and aftei-ward of inserting the grounds of it. In- stances of the former occur "not unfi-equently at the period of the Reformation ; but the latter practice was little known before the Long Parliament : a right that Cato or Pho- cion would have prized, though it may some- times have been frivolously or factiously ex- ercised ! The House of Commons, from the earli- est records of its regular exist- st^te of the ence in the 23d year of Edward Commons. I., consisted of seventy-four knights, or rep- resentatives from all the counties of Eng- land, except Chester, Durham, and Mon- * See the case of the Earl of Arundel in Parlia- ment of 1626. In one instance the House took no- tice that a vrrit of summons had heen issued to the Earl of Mulgrave, he beiug under age, and ad- dressed the king that he would be pleased to be sparing of writs of this nature for the future, 20th of Oct., 1667. The king made an excuse that he did not know the earl was much under age, and would be careful for the future.— 29th of Oct. Cha. II.— Constitution.] FROM HENKY VII. TO GEORGE II. 513 mouth, and of a varying number of deputies from the cities and boroughs ; sometimes, in the earliest period of representation, amounting to as many as two hundred and sixty, sometimes, by the negligence or par- tiality of the sherills in omitting places that had formerly returned members, to not more than two thirds of that number. New Increase of lJoro"ghs, however, as being grown their mem- into impoitance, or from some pri- vate motive, acquired the franchise of election ; and at the accession of Henry VIII. we find two hundred and twenty-four citizens and burgesses from one hundred and eleven towns (London sending four), none of which have since intermitted their privilege. I must so far concur with those whose „ .. general principles as to the the- Questionas ^ r i to rights of ory of Parliamentary reform leave election. profess my opinion that the change which appears to have taken place in the English government toward the end of the thirteenth century, was founded upon the maxim that all who possessed landed or movable property ought, as freemen, to be bound by no laws, and especially by no taxation, to which they had not consented through their representatives. If we look at the constituents of a House of Commons under Edward I. or Edward III., and consider the state of landed tenures and of commerce at that period, we shall per- ceive that, excepting women, who have gen- erally been supposed capable of no political right but that of reigning, almost every one who contributed toward the tenths of fif- teenths granted by the Parliament, might have exercised the franchise of voting for those who sat in it. Were we even to ad- mit that in corporate boroughs the franchise may have been usually vested in the free- men rather than the inhabitants, yet this distinction, so important in later ages, was of little consequence at a time when all traders, that is, all who possessed any mov- able property worth assessing, belonged to the former class. I do not pretend that no one was contributory to a subsidy who did not possess a vote, but that the far greater portion was levied on those who, as free- holders or burgesses, were reckoned in law to have been consenting to its imposition. It would be difficult, probably, to name any town of the least consideration in the four- teenth and fifteenth centuries, which did not, K K at some time or other, return members to Parliament. This is so much the case, that if, in running our eyes along the map, we find any sca-port, as Sunderland or Fal- mouth, or any inland town, as Leeds or Bir- mingham, which has never enjoyed the elective franchise, we may conclude at once that it has emerged from obscurity since the reign of Henry VIII.* Though scarce any considerable town, probably, was intentionally left out, except by the slieriffs' partiality, it is not to be sup- posed that all boroughs that made returns were considerable. Several that are cur- rently said to be decayed, were never much better than at present. Some of these were the ancient demesne of the crown ; the ten- ants of which, not being suitors to the coun- ty courts, nor voting in the election of knights for the shire, were, still on the same principle of consent to public burdens, called upon to send their own representatives. Others received the privilege along with their charter of incorporation, in the Ijope that they would thrive more than proved to be the event ; and possibly, even in such early times, the idea of obtaining influence in the Commons through the votes of their burgesses might sometimes suggest itself. That, amid all this care to secure the positive right of representation, so little pro- vision should have been made as to its rel- ative efficiency, tliat the high-born and op- ulent gentry should have been so vastly out- numbered by peddling traders, that the same munber of two should have been deemed sufficient for the counties of York and Rut- land, for Bristol and Gatton, are facts more easy to wonder at than to explain ; for though the total ignorance of the government as to the relative population might be, pei'haps, a sufficient reason for not making an attempt at equalization, yet, if the representation had been founded on any thing like a numerical principle, there would have been no diffi- culty in reducing it to the proportion fur- nished by the books of subsidy for each county and borough, or at least in a rude approximation toward a more rational dis- tribution. * Though the proposition in the text is, I be- lieve, generally true, it has occurred to me since, that there are some exceptions in the northern parts of England ■, and that both Sheffield and Manchester are among them. 514 CONSTITUTIONAL HISTORY OF ENGLAND [Chap. XIIL Heniy VIII. gave a remarkable proof that no pait of the kingdom, subject to the En- glish laws and Parliamentary burdens, ought to want its representation, by extending the right of election to the whole of Wales, the counties of Chester and Monmouth, and even the towns of Berwick and Calais. It might be possible to trace the reason why the county of Durham was passed over. The attachment of those northern parts to popeiy seems as likely as any other. Thir- ty-three were thus added to the Commons. Edward VI. cre.ited fourteen boroughs, and restored ten that had disused their privilege. Mary added twenty-one, Elizabeth sixty, and James twenty-seven members. These accessions to the popular chamber of Parliament after the reign of Henry VIII. were by no means derived from a popular principle, such as had influenced its earlier constitution. We may account, perhaps, on this ground for the writs addressed to a veiy few towns, such as Westminster. But the design of that gi-eat influx of new mem- bers from petty boroughs, which began in the short reigns of Edward and Maiy, and continued under Elizabeth, must have been to secure the authority of government, es- pecially in the successive revolutions of re- ligion. Five towns only in Cornwall made returns at the accession of Edward VI.; twenty-one at the death of Elizabeth. It will not be pretended that the wretched vil- lages, which corruption and peijury still hai'dly keep from famine, were seats of com- merce and industry in the sixteenth cen- tury ; but the county of Cornwall was more immediately subject to a coercive influence, through the indefinite and oppressive juris- diction of the stannary court. Similar mo- tives, if*we could discover the secrets of those governments, doubtless operated in most other cases. A slight difficulty seems to have been raised in 15G3 about the inti'o- duction of representatives from eight new boroughs at once by charters from the crown, but was soon waved with the complaisance usual in those times. Many of the towns which had abandoned their privilege at a time when they were compelled to the pay- ment of daily wages to their members during the session, were now desirous of recover- ering it, when that burden had ceased and the franchise had become valuable ; and the House, out of favor to popular rights, laid it down in the reign of James I. as a principle, that every town which has at any time re- turned members to Parliament, is entitled to a writ as a matter of course. The speaker accordingly issued writs to Hertford, Pom- fret, Ilchester, and some other places, on their petition. The restorations of bor- oughs in this manner, down to 1641, are fifteen in number ; but though the doctrine that an elective right can not be lost by dis- use is still current in Parliament, none of the veiy numerous boroughs which have ceased to enjoy that franchise since the days of the first three Edwards have, from the Restoration downward, made any attempt at retrieving it ; nor is it by any means likely that they would be successful in the appli- cation. Charles I., whose temper inspired him rather with a systematic abhorrence of Parliaments than with any notion of mana- ging them by influence, created no new bor- oughs. The right, indeed, would certainly have been disputed, however frequently ex- ercised. In 1673, the county and city of Durham, which had strangely been unrep- resented to so late an era, were raised by act of Parliament to the privileges of their fellow-subjects.* About the same time a charter was gi-anted to the town of Newark, enabling it to return two burgesses. It passed with some little objection at the time ; but four years afterward, after two debates, it was carried on the question, by 125 to 73, that by viitue of the charter grant- ed to the town of Newark, it hath )-ight to send burgesses to sei-ve in Parliament.f Notwithstanding this apparent recognition of the king's prerogative to summon burgess- es fi-om a town not previously represented, no later instance of its exercise has occur- red ; and it would unquestionably have been resisted by the Commons, not, as is vulgai-ly supposed, because the act of union with Scotland has limited the English members to 513 (which is not the case), but upon the broad maxims of exclusive privilege in mat- ters relating to their own body, w'hich the House was become powerful enough to as- sert against the crown. It is doubtless a problem of no inconsid- * 25 Car. II., c. 9. A bill had passed the Com- mons in 1624 for the same effect, but failed through the dissolution. t Journals, 26th of Feb. and 20th of March, 167C-7. Cha. n.— Constitution.] FROM HENRY Vn. TO GEORGE II. 515 eiable difficulty to determine with perfect exactness by what class of persons the elect- ive franchise in ancient boroughs was orig- inally possessed ; yet not, perhaps, so much so as the carelessness of some, and the artifi- ces of others, have caused it to appear. The difi'erent opinions on this controverted Four differ- question may be reduced to the ent theories four following theses : 1. The original Original right, as enjoyed by bor- principle. oughs represented in the Parlia- ments of Edward I., and all of later crea- tion, where one of a different nature has not been expressed in the charter from which they derive the privilege, was in the inhab- itant householders resident in the borough, and paying scot and lot ; under those words including local rates, and probably general taxes. 2. The right sprang from the tenure of certain freehold lands or burgages within the borough, and did not belong to any but Buch tenants. 3. It was derived from char- ters of incorporation, and belonged to the community or freemen of the corporate body. 4. It did not extend to the generality of freemen, but was limited to the govern- ing part or municipal magistracy. The act- ual right of election, as fixed by determina- tions of the House of Commons before 1772, and by committees under the Grenville Act since, is variously grounded upon some of these four principal rules, each of which has been subject to subordinate modifications which produce still more complication and irregularity. Of these propositions, the first was laid „, . , down by a celebrated committee Their proba- ^ . •'^ ^ „ biiityconsid- 01 the HousB 01 Commons m ered. 1624, the chau-man whereof was Sergeant Glanville, and the members, as ap- pears by the list in the Journals, the most eminent men, in respect of legal and consti- tutional knowledge, that were ever united in such a body. It is called by them the common-law right, and that which ought al- ways to obtain, where prescriptive usage to the contrary can not be shown. But it has met with very Uttle favor fi-om the House of Commons since the Restoration. The second has the authority of Lord Holt in the case of Ashby and White, and of some other lawyers who have turned their attention to the subject. It countenances what is called the right of burgage tenure ; the electors in boroughs of this description being such as hold burgages or ancient tenements within the borough, '.'^he next theory, which at- taches the primary franchise to the freemen of corporations, has, on the whole, been most received in modern times, if we look either at the decisions of the proper tribunal, or the current doctrine of lawyers. The last proposition is that of Dr. Brady, who in a treatise of boroughs, written to serve the purposes of James II., though not published till after the Revolution, endeavored to settle all elective rights on the narrowest and least popular basis. This work gained some credit, which its perspicuity and acutenes3 would deserve, if these were not disgraced by a perverse sophistry and suppression of truth. It does not appear at all probable that such varying and indefinite usages as we find in our present representation of bor- oughs, could have begun simultaneously, when they were first called to Parliament by Edward I. and his next two descendants. There would have been what may be fairly called a common-law right, even weie we to admit that some variation from it may, at the veiy commencement, have occurred in particular places. The earliest writ of sum- mons directed the sheriff to make a return from every borough within his jurisdiction, without any limitation to such as had ob- tained charters, or any rule as to the elect- oral body. Charters, in fact, incorporating towns, seem to have been by no means com- mon in the thirteenth and fourteenth centu- ries ; and though they grew more frequent aftemard, yet the first that gave expressly a right of returning members to Parliament was that of Wenlock under Edward IV. These charters, it has been contended, were incorporations of the inhabitants, and gave no power either to exclude any of them, or to admit non-resident sti-angers, accord- ing to the practice of later ages. But, how- ever this may be, it is highly probable that the word burgess (burgensis), long before the elective franchise or the charter of a corporation existed, meant literally the free inhabitant householder of a borough, a member of its court-leet, and subject to its jui-isdiction. We may, I believe, reject with confidence what I have reckoned as the third proposition, namely, that the elect- ive franchise belonged, as of common right, to the freemen of corporations; and still 516 more tbat of Brady, which few would be found to support at the present day. There can, I should conceive, be little pre- tense for affecting to doubt that the burgess- es of Domesday-Book, of the various early records cited by Madox and others, and of the writs of summons to Edward's Parlia- ment, were inhabitants of tenements within the borough ; but it may remain to be proved that any were entitled to the privileges or rank of burgesses, who held less than an estate of freehold in their possessions. The burgage tenure, of which we read in Little- ton, was evidently freehold ; and it might be doubtful whether the lessees of dwellings for a term of years, whose interest, in con- templation of law, is far inferior to a free- hold, were looked upon as sufificiently domi- ciled within the borough to obtaiu the ap- pellation of burgesses. It appears from Domesday that the burgesses, long before any incorporation, held lands in common be- longing to their town ; they had also their guild or market-house, and were entitled in some places to tolls and customs. These permanent rights seem naturally restrained to those who possessed an absolute propei-ty in the soil. There can surely be no ques- tion as to mere tenants at will, liable to be removed from their occupation at the pleas- ure of the lord ; and it is perhaps unneces- saiy to mention that the tenancy from year to year, so usual at present, is of veiy re- cent introduction. As to estates for a term of years, even of considerable dui'ation, they were probably not uncommon in the time of Edward I. ; yet far outniunbered, as I should conceive, by those of a freehold na- ture. Whether these lessees were contrib- utory to the ancient local burdens of scot and lot, as well as to the tallages exacted by the king, and tenths aftenvard imposed by Parliament in respect of movable estate, it seems not easy to determine ; but if they were so, as appears more probable, it was not only consonant to the principle that no freeman should be liable to taxation without the consent of his representatives, to give them a share in the general privilege of the borough, but it may be inferred with suffi- cient evidence from several records, that the privilege and the burden were absolute- ly commensurate ; men having been spe- cially discharged from contributing to talla- ges because they did not participate iu the [Chap. XIIL liberties of the borough, and others being expressly declared subject to those imposi- tions, as the condition of their being admit- ted to the rights of burgesses.* It might, however, be conjectured, that a difference of usage between those boroughs, where the ancient exclusive rights of burgage ten- ants were maintained, and those where the equitable claim of taxable inhabitants possessing only a chattel interest received attention, might ultimately produce those very opposite species of franchise, which we find in the scot and lot borough, and in those of burgage tenure. If the franchise, as we now denominate it, passed in the thirteenth centuiy for a burden, subjecting the elector to bear his part in the payment of wages to the representative, the above conjecture will be equally applicable, by changing the words right and claim into lia- bility.f It was according to the natural coui'se of things that the mayors or bailiffs, as return- ing officers, with some of the principal bur- gesses (especially where incorporating char- ters had given them a pre-eminence), would take to themselves the advantage of serving * Madox Firma, Burgi, p. 270, et post. t The popular character of the elective franchise in early times has been maintained by two writers of considerable research and ability : Mr. Luders, Reports of Election Cases, and Mr. Merewether, in his Sketch of the History of Boronghs and Re- port of the West Looe Case. The former writer has the following observations, vol. i., p. 99 : " The ancient history of boroughs does not confirm the opinion above referred to, which Lord-chief-justice Holt deUvered in the case of Ashby v. White, viz., that inhabitants not incorporated can not send members to Parliament but by prescription ; for there is good reason to beUeve that the elections in boroughs were in the beginning of representa- tion popular ; yet in the reign of Edward 1. there were not. perhaps, thirty corporations in the king- dom. Who then elected the members of boroughs not incorporated ? Plainly, the inhabitants or burgh- ers [according to their tenure or situation] ; for at that time every inhabitant of a borough was called a burgess ; and Hobart refers to this usage in support of his opinion in the case of Dungannon. The manner in which they exercised this right was the same as that in which the inhabitants of a town, at this day, hold a right of common, or other such privilege, which many possess who are not incorporated." The words in brackets, which are not in the printed edition, are inserted by the author himself in a copy bequeathed to the Inner Temple Library. The remainder of Mr. Luder's note, though too long for this place, is very good, and successfully repels the corporate theory. CONSTITUTIONAL HISTORY OF ENGLAND Cha. n.— Constitution.] FROM HENRY TO GEORGE II. 517 a courtier or neigliboiing gentleman, by re- turning him to Parliament, and virtually ex- clude the general class of electors, indiffer- ent to public matters, and without a suspi- cion that their individual suffrages could ever be worth purchase. It is certain that a seat in the Commons was an object of am- bition in tho time of Edward IV., and I have little doubt that it was so in many instances much sooner ; but there existed not the means of that splendid corruption which has emulated the Crassi and LucuUi of Rome. Even so late as 1571, Thomas Long, a mem- ber for Westbury, confessed that he had given four pounds to the mayor and another person for his return. The elections were thus generally managed, not often, perhaps, by absolute bribery, but through the influ- ence of the government and of the neigh- boring aristocracy ; and while the freemen of the corporation, or resident household- ers, were frequently permitted, for the sake of form, to concur in the election, there were many places where the smaller part of the municipal body, by whatever names distinguished, acquired a sort of prescriptive right through a usage of which it was too late to show the commencement.* * The foUowiug passage from Vowell's treatise on the order of the Pai-liament, published in 1571, and reprinted in Holingshed's Chronicles of Ire- land (vi., 345), seems to indicate that, at least in practice, the election was in the principal or gov- eniing body of the corporation. " The sheriff of ev- ery county, having received his writ, ought forth- with to send his precepts and summons to the mayors, bailiffs, and head officers of evorj' city, town corporate, borough, and sach places as have been accustomed to send burgesses within his county, that they do choose and elect among them- selves two citizens for every city, and two burgess- es for every borough, according to their old cus- tom and usage ; and these head ofHceis ought then to assemble themselves, and the aldermen and common council of every city or tcncn, and to make choice among themselves of two able and sufficient men of every city or town, to serve for and in the said Parliament." Now, if these expressions are accurate, it cer- tainly seems that, at this period, the great body of freemen or inhabitants were not partakers in the exercise of their franchise ; and the foUovfing pass- age, if the reader will turn to it, wherein Vowell adverts to the form of a county election, is so dif- ferently worded in respect to the election by the free- holders at large, that we may fairly put a literal construction upon the former. In point of fact, I have little doubt that elections in boroughs were for the most part verj- closely managed in the six- teenth century, and probably much earlier. This, It was perceived, however, by the as- serters of the popular cause under James I., that by this narrowing of the elective franchise many boroughs were subjected to the influence of the privy council, which, by restoring the householders to their legit- imate rights, would strengthen the interests of the country. Hence Lord Coke lays it down in his fourth Institute, that " if the king newly incorporate an ancient borough, which before sent burgesses to Parliament, and granteth that certain selected burgesses shall make election of the burgesses of Par- liament, where all the burgesses elected be- fore, this charter taketh not away the elec- tion of the other burgesses ; and so, if a city or borough hath power to make ordinances, they can not make an ordinance that a less number shall elect burgesses for the Parlia- ment than made the election before ; for free elections of members of the high court of Parliament are pro bono publico, and not to be compared to other cases of election of mayois, bailiffs, &c., of corporations."* He adds, however, " By original grant or by custom, a selected number of burgesses may elect and bind the residue." This restric- tion was admitted by the committee over which Glanville presided in lG-'4 ;f but both they and Lord Coke believed the represent- ation of boroughs to be from a date before what is called legal memory, that is, the ac- cession of Richard I. It is not easy to rec- however, will not by any means decide the ques- tion of right ; for we know that in the reigns of Henry IV. and Hem-y V., returns for the great county of York were made by the proxies of a few peers and a few knights ; and there is a still more anomalous case in the reign of Elizabeth, when a Lady Packington sealed the indenture for the county of Worcester. — Carcw's Hist, of Elec- tions, part ii., p. 282. But uo one would pretend that the right of election was in these persons, or supposed by any human being to be so. The difficulty to be got over by those who defend the modern decisions of committees is Jhis. We know that in the reign of Edward I. more than one hundred boroughs made returns to the writ. If most of these were not incorporated, nor had any aldenneu, capital burgesses, and so forth, by whom were the elections made ? Surely by the free- holders, or by the inhabitants. And if they were so made in the reign of Edward I., how has the franchise been restrained afterward ? * 4 lust., 48. Glanville, p. 53, 66. That no private agreement, or by-law of the borough, can restrain the right of election, is laid down in the same book, p. 17. t Glanville's case of Bletchingly, p. 33. 518 COXSTITUTIONAL HISTOEY OF ENGLAND [Chap. XUI oDcile their principle, that an elective right once sabsisting could not be limited by any thing short of immemorial prescription, with some of their own determinations, and still less with those which have subsequently occurred, in favor of a restrained right of suffrage. There seems, on the whole, great reason to be of opinion, that where a bor- ough is so ancient as to have sent members to Parliament before any charter of incorpo- ration proved, or reasonably presumed to have been granted, or where the word bur- gensb is used without any thing to restrain its meaning in an ancient charter, the right of election ought to have been acknowledged either in the resident householders paying general and local taxes, or in such of them as possessed an estate of freehold within the borough ; and whatever may have been the primary meaning of the word burgess, it appears consonant to the popular spirit of the English Constitution, that after the possessors of leasehold interest became so numerous and opulent as to bear a very large share in the public burdens, they should have enjoyed commensurate privi- leges ; and that the resolution of Mr. Glan- vilJe's committee in favor of what they called the common-law right should have been far more uniformly received, and more consist- ently acted upon, not merely as agreeable to modem theories of liberty, from which some have intimated it to have sprung, but as grounded on the primitive .spirit and in- tention of the law of Parliament. In the reign of Charles II. the House of Commons seems to have become less favor- able to this species of franchise : but after the Revolution, when the struggle of parties was renewed every three years throughout the kingdom, the right of election came more continually into question, and was treated with the grossest partiality by the HoTXse, as subordinate- to the main interests of the rival factions. Contrary determina- tions for the sole purpose of serving these interests, as each grew in its turn more powerful, frequently occurred : and at this time the ancient right of resident house- holders seems to have grown into disreptite, and given way to that of corporations, some- times at large, sometimes only in a limited and very smaD number.* A slight check | * [I incUne to soapect tfa&t it woold be ffjotul on j tesearcii that, in a plurality of tz^aocea, the To- 1 was imposed on this scandalous and syste- matic injustice by the act 2 Geo. II., c. 2, which renders the last determination of the House of Commons conclusive as to the right of election.* But this enactment con- firmed many decisions that can not be rec- onciled with any sensible rule. The same iniquity continued to prevail in cases beyond its pale; the fall of Sir Piobert Walpole from power was reckoned to be settled when there appeared a small majority against him on the right of election at Chip- penham, a question not very logically con- nected with the merits of his administra- tion ; and the House would to this day have gone on trampling on the franchises of their constituents, if a statute had not been pass- ed through the authority and eloquence of Mr. GrenviDe, which has justly been known by his name. I shall not enumerate the particular provisions of this excellent law, which, in point of time, does not fall within the period of my present work ; it is gener- ally acknowledged that, by transferring the judicature in all cases of controverted elec- tions from the House to a sworn committee of fifteen members, the reproach of partial- ity has been a good deal lightened, though not, perhaps, effaced, f riei favored the right of reaidenta, either booje- boldera or bargage temmts, to the czclojioD of freemen, who. being in a cTeat measare outvoteri, were less Kkely to hf. influenced by the neighbor- ing gentry. In le^-l a bill was brought in to dis- franchise the boroxigh of Stoclibridge for bribery ; bat the burgesses petitioned against it, declaring themselves resolved, for the fatore, in ail difficult cases, to consnlt the gentlemen of the county. — Jonmals, 7th of Feb. They by no means kept their word in the next centory, no place having been more not/jriously venal The bill was thrown oat by a small majoritj- ; but the Whigs seem to have SQpported it, as far as we can judge by the tellets. —Id., March 30.— 1«45.] * This clause, in an act imposing severe penal- ties on bribery, was inserted by the House rf Lords with the insidious design of causing the re- jection of the whole biH, if the Commons, as might be expected, should resent such an interference with tbeir privileges. The ministry accordingly endeavored to exdte this sentiment : but those who had introduced the bill very wisely thought it better to sacrifice a point of dignity rather than lose so important a statute. It was, however, only carried by two voices to agree with the amend- ment.—Pari. Hist., viii., 7'A. t These pages were first published in 1327. The Reform BiH of has of course rendered a dis- fjnisition on the ancient rights of election in bor- oughs a matter of merely historical interest Jakes II.] FROM HEN'RY VU. TO GEORGE IL 519 CIL^PTER XIV. THE HEIGX OP JAMES II. Designs of the King. — Parliament of Ib'^o. — King's Intention to repeal the Test Act. — Deceived as to the Dispositions of his Subjects. — Proivgariou of ParUameut. — Dispensing Power confirmed by the Judges. — Ecclesiastical Commission. — King's Scheme of establishing Poperj-. — Dis- missal of Lord Rochester. — Prince of Orange alarmed. — Plan of setting the Princess aside. — Rejected by tlie King. — Overtures of the Mal- contents to Prince of Orange. — Declaration for Liberty of Conscience. — Addresses in Favor of it. — New-modeling of the Corporations. — Affair of Masdaleu CoUege. — InJ'atuation of the King. — His Coldness toward Louis. — Invitation sign- ed to the Prince of Orange. — Birth of Prince of Wales. — Justice and Necessitj- of the Revolu- tion.— Favorable Circumstances attending it. — Its salutarj- Consequences.— Proceeilings of the Convention. — Ended by the Elevation of Will- iam and Mary to the Thiuae. The great question that has been brought forward at the end of the last chapter, con- cerning the right and usage of election in boroughs, was perhaps of less practical im- portance in the reign of Charles the Second than we might at first imagine, or than it might become in the present age. Whoev- er might be the legal electors, it is undoubt- ed that a great prejwnderauce was vLrtually lodged in the select body of corporations. It was the knowledge of this that produced the Corporation Act soon after the Resto- ration, to exclude the Presbyterians, and the more violent measures of quo wan-anto at the end of Charles's reign. If by placing creatiu-es of the court in municipal offices, or by intimidating the former corporators through apprehensions of forfeiting their common property and lucrative privileges, what was called a loyal Parliament could be prociu^d, the business of government, both as to supply and enactment or repeal of laws, would be carried on far more smootli- ly, and with less scandal than by their entire disuse. Few of those who assumed the Dame of Tories were prepared to sacrifice the ancient fundamental forms of the Con- stitntion. They thought it equally neces- saiy that a Parliament should exist, and tliat it should have no will of its own, or Done, at least, e.xcept for the preservation of that ascendency of the established religion which even their loyalty would not consent to surrender. It is not easy to determine whether James II. had resolved to com- Deigns of plete his schemes of arbitrary gov- erument by setting aside even the nominal concurrence of the two houses of Parlia- ment in legislative enactments, and espe- ciidly in le>"ying money on his subjects. Lonl Halifax had given him much oti'ense toward the close of the late reign, and was considered from thenceforth as a man imfit to be employed, because in the cabinet, on a question whether the people of New En- gland should be niled in future by an as- semblj- or by the absolute pleasure of the crown, he had spoken very freely agtunst un- limited monarchy.* James, indeed, could hanlly avoid perceiving that the constant ac- quiescence of an Englisli House of Com- mons in the measures proposed to it, a re- spectful abstinence from all intermeddling with the administration of atlairs, could never be relied upon or obtained at all, without much of that dextrous uumage- ment and intluence which he thought it both unworthy and impolitic to exert. It seems clearly that he had determined on trying their obedience merely as an exper- iment, and by no means to put his authority in any mamier within their control. Hence he took the bold step of issuing a procla- mation for the payment of customs, which by law expired at the late king's death ;f ' Fox, Appendix, p. 8. I "The legal method," says Bamet, "was to have made entries, and to have taken bonds for those duties to be paid when the Parliament should meet and renew the grant." Mr. Onslow remarks on this, that he sliould have said the least illegal and the only justifiable method. To which the Oxford editor subjoins that it was the proposal of Lord-keeper Xorth. while the other, which was adopted, was suggested by Jefferies. This is a mistake. North's proi>o8al was to collect the du ties nnder the proclamation, bat to keep them apart from the other revenues in the Esche • , ^ _ ' Dismissal of ot lord-treasurer ; so nearly con- J.ord Ro- sequenton his positive declaration of adherence to the Protestant religion, after the dispute held in his ])resence at the king's particular command, between divines of both persuasions, that it had much the appear- ance of a resolution taken at court to exclude from the high offices of the state all those who gave no hope of conversion.* Claren- don had already given way to Tyrconnel in the government of Ireland ; the privy seal was bestowed on a Catholic peer, Lord Arundel; Lord Bellasis, of the same relig- ion, was now placed at the head of the commission of the treasury ; Sunderland, though he did not yet cease to conform, made no secret of his pretended change of opinion ; the council board, by virtue of the dispensing power, was filled with those who would refuse the test ; a small junto of Cath- olics, with Father Petre, the king's confess- or, at their head, took the management of almost all affairs upon themselves ;t men, 168G, and subscribed by Powis, the solicitor-gener- al. The attorney-general, Sawyer, had refused; as W'O learn from Reresby, p. 133, the only cotem- porary writer, perhaps, who mentions this verj- re- markable aggression on the Established Church. * The Catholic lords, according to BariUon, had represented to the king that nothing could be done with Parliament so long as the treasurer caballed against the designs of his majesty. James prom- ised to dismiss him if he did not change his relig- ion.— Mazure, ii., 170. The queen had previously been rendered his enemy by the arts of Sunder- land, who persuaded her that Lord and Lady Ro- chester had favored the king's intimacy with the Countess of Dorchester, in order to thwart the pop- ish intrigue. — Id., 149. "On voit," says BariUon on the tieasurer's dismissal, "que la cabale Cath- olique a enticrement prevalu. On s'attendoit de- puis qnelque temps a ce qui est arrive au Comte de Rochester ; mais I'execution fait encore una nouvelle impression sur les esprits." — P. 181. t Life of James, 74. BariUon frequently men- tions this cabal, as having, in effect, the whole con- duct of affairs in their hands. Sunderland belong- ed to them; but Jefferies, being reckoned on the Protestant side, had, I believe, very little influ- ence for at least the two latter years of the king's reign. "Les affaires de ce pays-ci," says Bonre- pos, in 1686, " ne roulent a present que sur la reli- gion. Le roi est absolument gouveme par les Cath- oliques. My Lord Sunderland ne se maintient que par ceux-ci, et par son devoucmeut a faire tout ce qu'il croit etre agreable sur ce point. II a le se- cret des affaires de Rome." — Mazure, ii., 124. " On feroit ici," says BariUon, the same year, "ce que on fait en France" [that is, I suppose, dragon- JjLSiES 11] FROM HEXRY VII. TO GEORGE H. 529 whose known want of principle gave reason to expect their compliance, were raised to bishoprics ; there could be no rational doubt of a concerted scheme to depress and dis- countenance the Established Church. The dismissal of Rochester, who had gone great lengths to preserve his power and emolu- ments, and would, in all probabilitj", have concurred in the establishment of arbitraiy power under a Protestant sovereign,* may oe reckoned the most unequivocal evidence of the king's intentions ; and from thence we may date the decisive measures that were taken to counteract them. It was, I do not merely say the interest, „ . ,^ but the clear right and bounden Prince of Or- " »nge alarm- duty, of the Prince of Orange, to watch over the internal politics of England, on account of the near connection which his own birth and his marriage with the presumptive heir had created. He was never to be reckoned a foreigner as to this country, which, even in the ordinary course of succession, he might be called to govern. From the time of his union with the Prin- cess Maiy, he was the legitimate and natu- ral ally of the Whig party ; alien in all his sentiments fi-om his two uncles, neither of whom, especially James, treated him with much regard, on account merely of his at- tachment to religion and liberty, for he might have secured their affection by falling into their plans. Before such differences as sub- sisted between these personages, the bonds of relationship fall asunder like flax ; and William would have had at least the sanction ner et fusilier les heretiqnes], " si Ton pouvoit es- perer de reussir." — P. 1127. * Rochester makes so very bad a figure in all Barillon's correspondence, that there really seems no want of candor in this supposition. He was ev- idently the most active co-operator in the connec- tion of both the brothers with France, and seems to have had as few compunctious visitiugs, where the Church of England was not concerned, as Sun- derland himself. Qodolphin was too much impli- cated, at least by acquiescence, in the counsels of this reign ; yet we find him suspected of not wish- ing " se passer entierement de Parlement, et a rompre nettemeut avec le Prince d'Orange." — Fox, Append., p. 60. If Rochester had gone over to the Romanists, manj', probably, would have followed : on the oth- er hand, his steadiness retained the wavering. It was one of the first great disappointments with which the king met. But his dismissal from the treasury created a sensible alarm. — Dalrymplp, 179. L L of many precedents in history if he had em- ployed his influence to excite sedition against i Charles or James, and to thwart their ad- I ministration. Yet his conduct appeals to have been merely defensive ; nor had he [ the remotest connection with the violent and factious proceedings of Shaftesbury and his partisans. He played a very dextrous, but apparently very fair, game throughout the last years of Charles ; never losing sight of the popular party, through whom alone he could expect influence over England during the life of his father-in-law, while he avoided any direct rupture with the brothers, and every reasonable pretext for their taking offense. It has never been established by any I'ep- utable testimony, though perpetually as- serted, nor is it in the least degi'ee probable, that William took any share in prompting the invasion of Monmouth ;* but it is never- theless manifest that he derived the greatest advantage from this absurd rebellion and from its fiulure, not only as it I'emoved a mischievous adventurer, whom the multi- tude's idle predilection had elevated so high, that factious men would, under every gov- ernment, have turned to account his am- bitious imbecilitj-, but as the cruelty with which this unhappy enterprise was punish- ed rendered the king odious,! while the suc- * Lord Dartmouth wrote to say that Fletcher told him there were good grounds to suspect that the prince, underhand, encouraged the expedition, with design to ruin the Duke of Monmouth ; and this Dalrjmple believes, p. 136. It is needless to obser\'e, that such subtle mid hazardous policy was totally out of William's character: nor is there much more reason to believe, what is insinuated by James himself (Macpherson's Extracts, p. 144 ; Life of James, ii., 34), that Sunderland had been in secret correspondence with Monmouth, unless, indeed, it were, as seems hinted in the latter work, with the king's knowledge. t The number of persons who sufiered the sen- tence of the law, in the famous western assize of Jefieries, has been ditferently stated ; but, accord- ing to a list in the Harleian Collection, u. 46S9, it appears to be as follows : at Winchester, one (Mrs. Lisle) executed ; at SaUsbury, none ; at Dor- Chester, 74 executed, 171 transported ; at Exeter, 14 executed, 7 transported ; at Taunton, 144 exe- cuted, 284 transported ; at Wells, 97 executed, 393 transported. In all, 330 executed, 855 tiansport- ed ; besides many that were left in custody for want of evidence. It may be obseni-ed, that the prisoners sentenced to transportation appear to have been made over to some gentlemen of inter- est at court; among others, to Sir Christopher 530 CONSTITUTIONAL HISTOBY OF ENGLAJJD [Chap. XIV. cess of his arms inspired him with false confidence and neglect of caution. Every month, as it brought forth evidence of James's arbitraiy projects, increased the number of those who looked for deliverance to the Prince of Orange, either in the course of succession, or by some special inter- ference. He had, in fact, a sti'onger motive for watching the councils of his father-in- law than has generally been known. The king was, at his accession, in his fifty-fifth year, and had no male children ; nor did the queen's health give much encouragement to expect them. Every dream of the nation's voluntary return to the Church of Rome must have vanished, even if the consent of a Parliament could be obtained, which was nearly vain to think of : or if open force and the aid of France should enable James to subvert the established religion, what had the Catholics to anticipate from his death but that feaiful reaction which had ensued upon the accession of Elizabeth ? This had already so much disheartened the moderate part of theu- body, that they were most anx- ious not to m'ge forward a change, for which Musgrave, who did not blush to heg the grant of their unforttinate countrymen, to be sold as slaves in the colonies. The apologists of James II. have endeavored to lay the entire blame of these cruelties on Jefiferies, and to represent the king as ignorant of them. Roger North tells a story of his brother's interfer- ence, which is plainly contradicted by knovra dates, and the falsehood of which throws just suspicion on his numerous anecdotes. — See State Trials, xi., 303. But the king speaks with appai-ent appro- bation of what he calls JefFeries's campaign, in writ- ing to the Prince of Orange (Dahymple, 165) ; and I have heard that there are extant additional proofs of his perfect acquaintance with the details of those assizes : nor, indeed, can he be supposed ignorant of them. JefFeries himself, before his death, declared that he had not been half bloody enough for him by whom he was employed.— Bur- net, 651 (note to Oxford edition, vol. iii.). The king, or his biographer in his behalf, makes a very awkward apology for the execution of Major Holmes, which is shown by himself to have been a gross breach of faith. — Life of James, ii., 43. It is-mmecessary to dwell on what may be found in every history, the trials of Mrs. Lisle, Mrs. Gaunt, and Alderman Comish ; the former before JefFeries, the two latter before Jones, his successor as chief-justice of the King's Bench, a judge near- ly as infamous as the former, though not altogeth- er so brutal. Both Mrs. Lisle's and Cornish's con- victions were without evidence, and, consequentlj', were reversed after the Revolution. — State Trials, vol. xi. the kingdom was not ripe, and which was so little likely to endure, and used their in- fluence to promote a reconciliation between the king and Prince of Orange, contenting themselves with that free exercise of their worship which was permitted in Holland.* But the ambitious priesthood who sun-ound- ed the throne entertained bolder projects. A scheme was formed early in the king's reign to exclude the Princess of Orange from the succession in favor of _, Plan of set- her sister Anne, in the event of ting the prin- the latter's conversion to the «^'*^"'<=; Romish faith. The French ministers at our court, Barillon and Bonrepos, gave ear to this hardy intrigue. They flattered them- selves that both Anne and her husband were favorably disposed ; but in this they were wholly mistaken. No one could be more unconquerably fixed in her religion j^jected by than that princess. The king him- thekmg. self, when the Dutch ambassador, Van Ci- ters, laid before him a document, probably drawn up by some Catholics of his court, in which these audacious speculations were developed, declared his indignation at so criminal a project. It was not even in his power, he let tlie prince afterward know by a message, or in that of Parliament, accord- ing to the principles which had been main- tained in his own behalf, to change the fun- damental order of succession to the crowm.f ■* Several proofs of this appear in the corre- spondence of BariUoD. — Fox, 135. Mazure, ii., 22. The nuncio, M. d'Adda, was a moderate man, and united with the moderate Catholic peers, Bellasis, Arundel, and Powes. — Id., 1-27. This party urged the king to keep on good terms with the Prince of Orange, and to give way about the Test. — Id., in, 255. They were disgusted at Father Petre's introduction into the privy coimcil, 308, 353. But it has ever been the misfortune of that respecta- ble body to snffer unjustly for the follies of a few. Barillon admits very early in James's reign that many of them disliked the arbitrarj- proceedings of the court : " Us pretendent etre bons Anglois, c'est-a-dire, ne pas desirer que le roi d'Angleterre ote a la nation ses privileges et ses libertes.'' — Mazure, i , 404. William openly declared his willingness to con- cur in taking off the penal laws, provided the Test might remain. — Burnet, 694. Dalrymple, 154. Mazure, ii., 216, 250, 346. James replied that he must have all or nothing. — Id., 353. t I do not know that this intrigue has been brought to light before the recent valuable pubh- cation of M. Mazure, certainly not with such full evidence.— See i., 417 ; ii., 128, 160, 165, 167, 1S2, 183, 192. Barillon says to his master in one place: James n.] FROM HENRY VII. TO GEORGE II. 531 Nothing, indeed, can more forcibly paint the desperation of the popish faction than their entertainment of so preposterous a scheme ; but it naturally increased the solicitude of William about the intrigues of the English cabinet. It does not appear that any direct overtures were made to the Prince of Or- ange, except by a very few malcontents, till the embassy of Dykvelt from the States in the spring of 1687. It was William's ob- Overturesof j^*^^ ^° ascertain, through that the maicon- minister, the real state of parties tents to the . PrinceofOr- m England, buch assurances as ^"s*- he carried back to Holland gave encouragement to an enterprise that would have been equally injudicious and unwar- rantable without them.* Danby, Halifax, Nottingham, and others of the Tory, as well as Whig factions, entered into a secret corresjwndence with the Prince of Orange ; some from a real attachment to the consti- tutional limitations of monarchy ; some from a conviction that, without open apostasy from the Protestant faith, they could never obtain from James the prizes of their am- bition. This must have been the predomi- nant motive with Lord Churchill, who never gave any proof of solicitude about civil lib- erty ; and his influence taught the Princess Anne to distinguish her interests from those of her father. It was about this time, also, tJiat even Sunderland entered upon a mys- terious communication with the Prince of Orange ; but whether he afterv^-ard sen-ed his present master only to betray him, as has been generally believed, or sought rather to propitiate, by clandestine professions, one who might in the course of events become such, is not, perhaps, what the evidence al- ready known to the world will enable us to determine, t The apologists of James have "C'estnne matiere fort delicate a trailer. Je sais poartant qu'on en parle aa roi d' Angleterre ; et qu'avec le temps on ne desespere pas de tioaver des moyens pour faire passer la couronne sar la tete d'un heritier Catholique. II faut pour cela venir a bout de beaucoup Ics choses qui ne sont encore que commenc^es." * Burnet. Dalrjmple. Mazure. t The correspondence began by an affectedly obscure letter of Lady Sunderland to the Prince of Orange, dated March 7, 1687. — Dab^mple, 187. The nleaning^ however, can not be misunderstood. Sunderland himself sent a short letter of compli- ment by Dykvelt, May 28, referring to virhat that envoy had to communicate. Chm-chill, Notting- ham, Rochester, Devonshire, and others, wrote often represented Sunderland's treachery as extending back to the commencement of this reign, as if he had entered upon the king's seiTice with no other aim than to put him on measures that would naturally lead to his ruin. But the simpler hypothesis is probably nearer the ti'uth : a corrupt and artful statesman could have no better pros- pect for his own advantage than the power and popularity of a government which he administered ; it was a conviction of the king's incorrigible and infatuated adherence to designs which the rising spirit of the na- tion rendered utterly infeasible, an appre- hension that, whenever a free Parliament should be called, he might experience the fate of Strafford as an expiation for the sins of the crown, which determined him to se- care, as far as possible, his own indemnity upon a revolution that he could not have withstood.* The dismissal of Rochester was foUowed up, at no great distance of time, T^ , ' ° Declaration by the famous declaration for for liberty of liberty of conscience, suspending the execution of aU penal laws conceraing religion, and freely pai'doning all offenses against them, in as full a manner as if each individual had been named. He declared, also, his will and pleasure tliat the oaths of supremacy and allegiance, and the several also by Dykvelt. Halifax was in correspondence at the end of 1686. * Sunderland does not appear, by the extracts from Barillon's letters, published by M. Mazure, to have been the adviser of the king's most injudi- cious measures. He was united with the queen, who had more moderation than her husband. It is said by Barillon that both he and Petre were against the prosecution of the bishops, ii., 448. The king himself ascribes this step to Jefferies, and seems to glance also at Sunderland as its ad- viser.— Life of James, ii., 156. He speaks more explicitly as to Jefferies in Macpherson's Extracts, 151. Yet Lord Clarendon's Diary, ii., 49, tends to acquit Jefferies. Probably the king had nobody to blame but himself. One cause of Sunderland's continuance in the apparent support of a policy which he knew to be destractive was his poverty. He was in the pay of France, and even importu- nate for its money. — Mazure, 372. Dalrymple, 270, et post. Louis only gave him half what he demanded. Without the blindest submission to the king, he was every moment falling ; and this drove liira into a step as injudicious as it was un- principled, his pretended change of religion, which was not publicly made till June, 1688, though he had been privately reconciled, it is said (Mazure, ii., 463), more than a year before by Father Petre. 532 CONSTITUTIONAL HISTORY OF ENGLAND [Chap. XIV. tests enjoined by statutes of the late reign, should uo longer be required of any one be- fore his admission to offices of trust. The motive of this declaration was not so much to relieve the Roman Catholics from penal and incapacitating statutes (which, since the king's accession and the judgment of the Court of King's Bench in favor of Hales, were virtually at an end), as, by extending to the Protestant Dissenters the same full measure of toleration, to enlist under the standard of arbitrary power those who had been its most intrepid and steadiest adver- saries. It was after the prorogation of Par- liament that he had begun to caress that party, who in the first months of his reign had endured a continuance of their persecution ;* but the clergy in general detested the Non- conformists hardly less than the papists, and had always abhorred the idea of even a Par- liamentary toleration. The present declara- tion went much further than the recognized prerogative of dispensing with prohibitory statutes. Instead of removing the disability from individuals by letters patent, it swept away at once, in effect, the solemn ordi- nances of the Legislature. There was, in- deed, a reference to the future concurrence of the two Houses, whenever he should think it convenient for them to meet, but so expressed as rather to insult, than pay respect to, their authority;! and no one could help considering the declaration of a similar nature just published in Scotland as tlie best commentaiy on the present. In that he suspended all laws against the Ro- man Catholics and moderate Presbyterians, " by his sovereign authority, prerogative royal, and absolute power, which all his subjects were to obey without reserve;" and its whole tenor spoke, in as unequivocal language as his gi'andfather was accustomed to use, his contempt of all pretended limita- tions on his will.t Though the Constitu- tion of Scotland was not so well balanced as our own, it was notorious that the crown did not legally possess an absolute power in * " This defection of those his majesty had hith- erto put the g^reatest confidence in [Clarendon and Kochester], and the sullen disposition of the Church of England party in general, made him think it necessaiy to reconcile another ; and yet he hoped to do it in such a manner as not to disgust quite the churchman neither." — Life of James, ii., 102. t London Gazette, March 18, 1687. Ralph, 945. t Ralph, 943. Mazure, ii., 207. that kingdom ; and men might conclude that- when he should think it less necessaiy to observe some measures with his English subjects, he would address them in the same strain. Those, indeed, who knew by what course his favor was to be sought, did Addresses in not hesitate to go before, and light ^^^"^ °^ him, as it were, to the altar on which their country's liberty was to be the victim. Many of the addresses which fill the columns of the London Gazette in 1687, on occasion of the Declaration of Indulgence, flatter the king with assertions of his dispensing power. The benchers and ban'isters of the Middle Temple, under the direction of the prosti- tute Shower, were again foremost in the, race of infamy.* They thank him " for asserting his own royal prerogatives, the very life of the law, and of their profession ; which prerogatives, as they were given by God himself, so no power upon earth could diminish them, but they must always re- main entire and inseparable fi'om his royal person ; which prerogatives, as the address- ers had studied to know, so they were re- solved to defend, by asserting with their lives and fortunes that divine maxim, a Deo rex, d rege ?er."f These addresses, which, to the number of some hundreds, were sent up from every description of persons, the clergy, the non- conformists of all denominations, the grand juries, the justices of the peace, the corpo- rations, the inhabitants of towns, in conse- quence of the Declaration, afford a singular contrast to what we know of the prevailing dispositions of the people in that year, and of their general abandonment of the king's cause before the end of the next. Those from the clergy, indeed, disclose their ill humor at the unconstitutional indulgence, limiting their thanks to some promises of * [But these addresses from the Middle and In- ner Temple, we are informed by Sir James Mack- intosh, " from recent examination of the records of those bodies, do not appear to have been voted by either. The former, eminent above others for ful- some servility, is ti-aditionally said to be the clan- destine production of three of the benchers, of whom Chauncy, the historian of Hertfordshire, was one." — Hist, of James II., p. 177.] t London Gazette, June 9, 1687. Shower had been knighted a little before, on presenting, as re corder of London, an address from the grand jurj of Middlesex, thanking the king for his declara tiou.— Id , May 12. James 11.] FROM HENRY VII. TO GEORGE II. 533 favor the king had used toward the Estab- lished Church ; but as to the rest, we should have cause to blush for the sen'ile hypocrisy of our ancestors, if there were not good reason to believe that these addresses were sometimes the work of a small minority in the name of the rest, and that the grand juries and the magistracy in general had been so gai'bled for the king's purposes in this year that they formed a very inadequate representation of that great class from which they ought to have been taken.* It was, however, very natural that they should de- ceive the court. The Catholics were eager for that security which nothing but an act of the Legislature could afford ; and James, who, as well as his minister, had a sti-ong aversion to the measure, seems about the latter end of the summer of 1687 to have made a sudden change in his scheme of government, and resolved once more to try the disposition of a Parliament. For this purpose, having dissolved that from which he could expect nothing hostile to the Church, he set himself to manage the elec- tion of another in such a manner as to in- sure his main object, the security of the Romish religion. f * London Gazette of 1687 and 1688, passim. Ralph, 946, 368. These addresses grew more ar- dent after the queen's pregnancy became known. They were renewed, of course, after the hirtli of the Prince of Wales. But scarce any appear after the expected invasion was announced. The Tories (to whom add the Dissenters) seem to have thrown off the mask at once, and deserted the king whom they had so gi-ossly flattered, as instantaneously as parasites on the stage desert their patron on the first tidings of his ruin. The Dissenters have been a little ashamed of their compliance with the declaration, and of their silence in the popish controversy during this reign. — Neal, 75.1, 768 ; and see Biog. Brit., art. Alsop. The best excuses are, that they had been so har- assed that it was not in human natui'e to refuse a mitigation of suffering almost on any tenns ; that they were by no means unanimous in their transi- tory support of the couit ; and that they gladly em- braced the first offers of an equal indulgence held out to them by the Church. t "The king, now finding that nothing which had the least appearance of novelty, though never so well warranted by the prerogative, would go down with the people, unless it had the Parlia- mentary stamp on it, resolved to try if he could get the penal laws and test taken off by that au- thority."— Life of James, ii., 134. But it seems by M. Mazure's authorities that neither the king nor Lord Sunderland wished to convoke a Parliament, which was pressed foi-ward by the eager Catho- " His first care," says his biographer In- nes, " was to purge the corpora- j^^^^ model tions from that leaven which was ing of the in danger of corrupting the whole kingdom ; so he appointed certain regulators to inspect the conduct of several borough towns, to con-ect abuses where it was prac- ticable, and where not, by forfeiting their charters, to turn out such rotten members as infected the rest. But in this, as in most other cases, the king had the fortune to choose persons not too well qualified for such an employment, and extremely disagreeable to the people ; it was a sort of motley coun- cil made up of Catholics and Presbyterians, a composition which was sure never to hold long together, or that could probably unite in any method suitable to both their inter- ests ; it served, therefore, only to increase the public odium by their too arbitraiy ways of turning out and putting in ; and yet those who were thus intruded, as it were, by force, being of the Presbyterian party, were by this time become as little inclinable to favor the king's intentions as the excluded mem- bers."* This endeavor to violate the legal rights of electors, as well as to take away other vested franchises, by new-modeling corpo- rations through commissions granted to reg- ulators, was the most capital delinquency of the king's government, because it tended to preclude any repai'ation for the rest, and directly attacked the fundamental Constitu- tion of the state ;f but, like all his other measures, it displayed not more ill will to the liberties of the nation than inability to overthrow them. The Catholics were so small a body, and so weak, especially in cor- porate towns, that the whole effect produced by the regulators was to place municipal power and trust in the hands of the Non- conformists, those precarious and unfaithful lies, ii., 399 ; iii., 65. [The proclamation for a new ParUament came out Sept. 21, 1688. The king in- tended to create new peers enough to insure the repeal of the Test, Mazure, iii., 81 ; but intimates in his proclamation that he would consent to let Roman Catholics remain incapable of sitting in the Lower House.— Id., 82. Ralph, 1010. But this very proclamation was revoked in a few days.] * Life of James, p. 139. t Ralph, 965, 966. The object was to let in the Dissenters. This was evidently a desperate game : James had ever mortally hated the sectaries as en- emies to monarchy, and they were irreconcilably adverse to all his schemes. 534 CONSTITUTIONAI/ HISTOEY OF ENGLAND [Chap. XIV. allies of the court , whose resentment of past oppression, hereditary attachment to pop- ular principles of government, and inveter- ate abhorrence of popery, were not to be effaced by an unnatural coalition. Hence, though they availed themselves, and surely without reproach, of the toleration held out to them, and even took the benefit of the scheme of regulation, so as to fill the corpo- ration of London and many others, they were, as is confessed above, too much of Englishmen and Protestants for the pur- poses of the court. The wiser part of the churchmen made secret overtures to their party, and by assurances of a toleration, if not also of a comprehension within the An- glican pale, won them over to a hearty con- currence in the great project that was on foot.* The king found it necessary to de- scend so much from the haughty attitude he had taken at the outset of his reign, as per- sonally to solicit men of rank and local in- fluence for their votes on the two great measures of repealing the test and penal laws. The country gentlemen, in their dif- ferent counties, Avere tried with circular questions, whether they would comply with the king in their elections, or, if themselves chosen, in Parliament. Those who refused 6uch a promise were erased from the lists of justices and deputy -lieutenants ;f yet his biographer admits that he i-eceived little en- couragement to proceed in the experiment of a Parliament ;t and it is said by the French ambassador that evasive answers were returned to these questions, with such uniformity of expression as indicated an alarming degree of concert. § It is unnecessaiy to dwell on circumstan- « Burnet. Life of James, 169. D'Oyly's Life of Sancroft, i., 326. Lord Halifax, as is supposed, published a letter of advice to the Dissenters, warning them against a coalition with the court, and promising all indulgence from the Church. — Ralph, 950. Somers Tracts, viii., 50. t Ralph, 967. Lonsdale, p. 15. "It is to be ob- served," says the author of this memoir, " that most part of the offices in the nation, as justices of the peace, deputy-lieutenants, mayors, aldermen, and freemen of towns, are filled with Roman Catholics and Dissenters, after having suffered as many reg- ulations as were necessary for that purpose. And thus stands the ^tate of this nation in this month of September, 1688." — P. 34. Notice is given in the London Gazette for December 11, 1687, that the lists of justices and deputy-lieutenants would be revised. t Life of James, 183. $ Mazure, ii., 302. ces 80 well known as the expul- . „ . , ■ Affair of sion of the fellows of Magdalen Col- Magdalen lege.* It was less extensively mis- ^"""S"- chievous than the new-modeling of corijora- tions, but perhaps a more glaring act of des- potism ; for though the crown had been ac- customed from the time of the Reformation to send very peremptoiy commands to ec- clesiastical foundations, and even to dispense with their statutes at discretion, with so little resistance that few seemed to doubt of its prerogative ; though Elizabeth would probably have treated the fellows of any col- lege much in the same manner as James II., if they had proceeded to an election in de- fiance of her recommendation, yet the right was not the less clearly theirs, and the struggles of a century would have been thrown away if James II. was to govern as the Tudors, or even as his father and grand- father had done before him.f And though Parker, bishop of Oxford, the first president whom the ecclesiastical commissioners ob- truded on the college, was still nominally a Protestant.t his successor Giffard was an avowed member of the Church of Rome. The college was filled with persons of the same persuasion ; mass was said in the chap- el, and the estaljlished religion was excluded with a degree of open force which entirely took away all security for its preservation in any other place. This latter act, especial- ly, of the Magdalen drama, in a still gi-eater degi'ee than the nomination of Massey to the deanery of Christ Church, *ems a de- cisive proof that the king's repeated promises of contenting himself with a tolaration of his * The reader will find almost every thing rela- tive to the subject in that incomparable repertorj' the State Trials, xii., 1 ; also, some notes in the Oxford edition of Burnet. t [This is the only ground to be taken in the great case of Magdalen College, as in that of Fran- cis, at Cambridge, a little earlier; for the prece- dents of dispensing with college statutes by the royal authority were numerous. — See Ralph, 958. But it is one thing to do an irregular act, and anoth- er to enforce it. A vindication of the proceedings of the ecclesiastical commission was published, wherein it is said that " the legislative power in matters ecclesiastical was lodged in the king, and too ample to be limited by act of Parliament." — Id., 971.] } Parker's Reasons for Abrogating the Test are written in such a tone as to make his readiness to abandon the Protestant side very manifest, even if the common anecdotes of him should be exag- gerated. James TL] FBOM HENRY VII. TO GEORGE II. 535 own religion would have yielded to his in- superable bigotry and the zeal of his con- fessor. We may perhaps add to these en- croachments upon the Act of Uniformity, the design imputed to him of conferring the archbishopric of York on Father Petre; yet there would have been difficulties that seem insurmountable in the way of this, since, the validity of Anglican orders not being acknowledged by the Church of Rome, Petre would not have sought con- secration at the hands of Sancroft ; nor, had he done so, would the latter have confen-ed it on him, even if the chapter of York had gone through the indispensable form of an election.* The infatuated monarch was in-itated by Infatuation that wliicli he should have taken of the king, g, terrible warning, this resist- ance to his will from the University of Ox- ford. That sanctuary of pure, unspotted loyalty, as some would say, that sink of all that was most abject in servility, as less courtly tongues might murmur, the Univer- sity of Oxford, which had but four short years back, by a solemn decree in convoca- tion, poured forth anathemas on all who had doubted the divine right of monarchy, or as- serted the privileges of subjects against their sovereigns, which had boasted in its address- es of an obedience without any restrictions or limitations, which but recently had seen a known convert to popery, and a person disqualified in other ways, installed by the chapter without any remonstrance in the deaneiy of Christ Church, was now the scene of a fiiTO though temperate opposition to the king's positive command, and soon after the wilhng instrument of his ruin. In vain the pamphleteers, on the side of the court, upbraided the clergy with their apos- tasy fi-om the principles they had so much vaunted. The imputation it was hard to repel ; but, if they could not retract their course without shame, they could not con- tinue in it without destruction.} They * It seems, however, confirmed by Mazure, ii., 390, with the addition that Petre, )ike a second Wolsey, aspired also to be chancellor. The pope, however, would not make him a bishop, against the rules of the order of Jesuits to which he be- longed.— Id., James then tried, through Lord Castlemain, to get him a cardinal's hat, but with as little sQcceis. t "Above twenty years together," says Sir Roger L 'Estrange, perhaps himself a disguised were driven to extremity by the order of May 4, 1688, to read the Declaration of In- dulgence in their churches.* This, as is well known, met with great resistance, and, by inducing the primate and six other bish- ops to present a petition to the king against it, brought on that famous prosecution, which, more, perhaps, than all his former actions, cost him the allegiance of the An- glican Church. The proceedings upon the trial of those prelates are so familiar as to require no particular notice. f What is most worthy of remark is, that the very party who had most extolled the royal preroga- tive, and often in such terms as if all limita- tions of it were only to subsist at pleasure, became now the instruments of bringing it down within the compass and control of the law. If the king had a right to suspend the execution of statutes by proclamation, the bishop's petition might not indeed be libel- ous, but their disobedience and that of the clergy could not be warranted ; and the prin- cipal argument both of the bar and the bench rested on the gi'eat question of that preroga- tive. The king, meantime, was blindly hurry- ing on at the instigation of his own pride and bigotry, and of some ignorant priests ; confident in the fancied obedience of the Church, and in the hollow support of the Dissenters, after all his wiser counselors, the Catholic peers, the nuncio, perhaps the queen herself, had gi'own sensible of the danger, and solicitous for temporizing meas- ures. He had good reason to perceive that neither the fleet nor the army could be re- lied upon ; to cashier the most rigidly Prot- estant officers, to draft Irish troops into the Catholic, in his reply to the reasons of the clergy of the diocese of Oxford against petitioning (Som- ers Tracts, viii., •15), " without any regard to the nobility, gentry, and commonalty, our clergy have been publisliing to the world that the king can do greater things than are done in his declaration; but now the scene is altered, and they are become more concerned to maintain their reputation even with the commonalty than with the king." See, also, in the same volume, p. 19, " A Remonstrance from the Church of England to both Houses of Par- liament," 1685 ; and p. 145, " A new Test of the Church of England's Loyalty ;" both, especially the latter, bitterly reproaching her members for their apostasy from former professions. * Ralph, 982. t See State Trials, xii., 183. D'Oyly's Life of Sancroft, i., 250. 536 CONSTITUTIONAL HISTORY OF ENGLAND [Chap. XIV. regiments, to place all important commands I in the hands of Catholics, were difficult and even desperate measures, which rendered his designs more notorious, without render- ing them more feasible. It is among the most astonishing parts of this unhappy sov- ereign's impolicy, that he sometimes neg- lected, even offended, never steadily and sufficiently courted, the sole ally that could by possibility have co-operated in his scheme of government. In his brother's reign, James had been the most obsequious and unhesitating sei-vant of the French king. Before his own accession, his first step was to implore, through Bai'illon, a continuance of that support and protection, without which he could undertake nothing which he had designed in favor of the Catholics. He received a present of 500,000 livres with tears of gratitude ; and telling the ambassa- dor he had not disclosed his real designs to his ministers, pressed for a strict alliance with Louis, as the means of accomplishing them ;* yet, with a strange inconsistency, he drew off" gi'adually from these profes- sions, and not only kept on rather cool terms with France during part of his reign, but sometimes played a double game by treating of a league with Spain. The secret of this uncertain policy, which J , has not been well known till very ness toward lately, is to be found in the king's Louis. character. James had a real sense of the dignity pertaining to a king of England, and much of the national pride as well as that of his rank. He felt the degi-a- dation of importuning an equal sovereign for money, which Louis gave less frequently and in smaller measure than it was demand- ed. It is natural for a proud man not to love those before whom he has abased him- self. James, of frugal habits, and master of a great revenue, soon became more indiflfer- ent to a French pension. Nor was he in- sensible to the reproach of Europe, that he was grown the vassal of France and had tarnished the luster of the English crown. f * Fox, App., 29. Dalrymple, 107. Maznre, i., 396, 433. t Several proofs of this occur in the course of M. Mazare's work. When the Dutch ambassador, Van Citers, showed him a paper, probably forged to exasperate him, but purporting to be written by some Catholics, wherein it was said that it would be better for the people to be vassals of France than slaves of the devil, he burst out into Had he been himself Protestant, or his sub- jects Catholic, he would jjrobably have given the reins to that jealousy of his ambitious neighbor, which, even in his peculiar cir- cumstances, restrained him from the most expedient course ; I mean expedient, on the hypothesis that to overthrow the civil and religious institutions of his people was to be the main object of his reign ; for it was idle to attempt this without the steady co-opera- tion of France ; and those sentiments of dig- nity and independence, which at first sight appear to do him honor, being without any consistent magnanimity of character, seiTed only to accelerate his ruin, and confirm the persuasion of his incapacity.** Even in the memorable year 1688, though the veil was at length torn fi-om his eyes on the verge of the precipice, and he sought in trembling rage : " ' Jamais ! non, jamais ! je ne ferai rien qui me puisse mettre au-dessons des rois de France et d'Espague. Vassal ! vassal de la France !' s'ecria-t-il avec emportement. 'Monsieur! si le Parlcment avoit voulu, s'il vouloit encore, j'aurois porte, je porterois encore la monarchic a un de consideration qu'elle n'a jamais en sous aucane des rois mes predecessears, et votre etat y tronveroit peut-etre sa propre securite.' " — Vol. H., 165. Sun- derland said to Barillon, "Le roy d'Angleterre se reproche de ne pas etre en Europe tout ce qu'il devoit etre ; et souveut il se plaint que le roi votre maitre n'a pas pour lui assez de consideration." — Id., 313. On the other hand, Louis was much mor- tified that James made so few applications for his aid. His hope seems to have been, that by means of French troops, or troops at least in his pay, he should get a footing in England; and this was what the other was too proud and jealous to per- mit. " Conmie le roi," he said, in 1687, " ne doute pas de mon affection et du desir que j'ai de voir la religion Catholique bien Stabile en Angleterre, il fant croire qu'il se trouve assez de force et d'aa- torite pour executer ses desseins, pnisqu'il n'a pas recours a moi."— P. 258; also 174, 225, 320. * James affected the same ceremonial as the King of France, and received the latter's ambas- sador sitting and covered. Louis only said, smil- ing, " Le roi mon frere est fier, mais il aune assez les pistoles de France." — Mazure, i., 423. A more extraordinaiy trait of James's pride is mentioned by Dangeau, whom I quote from the Quarterly Review, xix., 470. After his retirement to St. Germains, he wore \-iolet in court mourning, which, by etiquette, was confined to the kings of France. The courtiers were a little astonished to see solem geminum, though not at loss where to worship. Louis, of course, had too much magnanimity to ex- press resentment. But what a picture of littleness of spirit does this exhibit in a wretched pauper, who could only escape by the most contemptible insignificance the charge of most ungrateful inso- lence ! James II.] FROM HENRY VII. TO GEORGE II. 537 the assistance he had slighted, his silly pi ide made him half unwilling to be rescued ; and, when the French ambassador at the Hague, by a bold raanoeuver of diplomacy, asserted to the States that an alliance already sub- sisted between his master and the King of England, the latter took ofl'ense at the un- authorized declaration, and complained pri- vately that Louis treated him as an inferior.* It is probable that a more ingenuous policy in the court of Whitehall, by determining the King of France to declare war sooner on Holland, would have prevented the ex- pedition of the Prince of Orange. f The latter continued to receive strong assurances of attachment from men of rank in England, but wanted that direct invitation to enter the kingdom with force which he required both for his security and his justi- fication. No men who thought much about their country's interests or their own would be hasty in venturing on so awful an enter- prise. The punishment and ignominy of treason, the reproach of history, too often the sworn slave of fortune, awaited its fail- ui*e. Thus Halifax and Nottingham found their conscience or their courage unequal to the crisis, and drew back from the hardy * Mazure, iii., 50. James waa so much oat of humor at D'Avaux's interference, that he asked his confidents " if the King of France thought he coald treat him Uke the Cardinal of Furstenburg," a creature of Louis XIV. w)iom he had set up for the electorate of Cologne. — Id., 69. He was, in short, BO much displeased with his own ambassa- dor at the Hague, Skelton, for giving in to this declaration of D'Avaux, that he not only recalled, but sent him to the Tower. Buniet is therefore mistaken, p. 769, in believing that there was act- ually an alliance, though it was veiy natural that he should give credit to what an ambassador as- serted in a matter of such importance. In fact, a treaty was signed between James and Louis, Sept. 13, by which some French ships were to be under the former's orders. — Mazure, iii., 67. t Louis continued to find money, though despis- ing James and disgusted with him, probably with a view to his own grand interests. He should, nev- ertheless, have declared war against Holland in October, which must have put a stop to the arma- ment. But he had discovered that James, with extreme meanness, had privately offered, about the end of September, to join the alliance against him as the only resource. This wretched action is first brought to light by M. Mazure, iii., 104. He excused himself to the King of France by an as- surance that he was not acting sincerely toward Holland. Louis, though he gave up his intention of declaring war. behaved with gi-eat magnanimi- ty and compassion toward the falling bigot. conspiracy that produced the Revolution.* Nor, perhaps, would the seven invitation eminent persons, whose names pf.nce of"''' are subscribed to the invitation Orange, addressed on the 30th of June, 1G88, to the Prince of Oi ange, the Earls of Danby, Shrewsbury, and Devonshire, Lord Lum- ley, the Bishop of London, Mr. Henry Sid- ney, and Admiral Russell, have committed themselves so far, if the recent „. , ' Birth of th8 birth of a prince of Wales had Prince of not made some measures of force absolutely necessary for the common inter- ests of the nation and the Prince of Or- ange, f It can not be said without absurdi- ty that James was guilty of any offense in becoming father of this child ; yet it was evidently that which rendered his other of- fenses inexpiable. He was now considera- bly advanced in life ; and the decided resist- ance of his subjects made it improbable that he could do much essential injury to the established Constitution during the remain- der of it. The mere certainty of all revert- ing to a Protestant heir would be an effect- ual guarantee of the Anglican Church. But the birth of a son to be nursed in the obnox- ious bigotry of Rome, the prospect of a re- gency under the queen, so deeply implica- ted, according to common report, in the schemes of this reign, made every danger appear more terrible. From the moment that the queen's pregnancy was announced, the Catholics gave way to enthusiastic, un- repressed exultation ; and, by the confi- dence with which they prophesied the birth of an heir, furnished a pretext for the sus- picions which a disappointed people began to entertain. t These suspicions were very general ; they extended to the highest ranks, and are a conspicuous instance of that * Halifax all along discouraged the invasion, pointing out that the king made no progi'ess in his schemes. — Dalrymple, passim. Nottingham said he would keep the secret, but could not be a party to a treasonable undertaking (Id., 228 ; Bumet, 764) ; and wrote as late as July to advise delay and caution. Notwithstanding the splendid suc- cess of the opposite counsels, it would be judging too servilely by the event not to admit that they were tremendously hazardous. t The invitation to WiUiam seems to have been in debate some time before the Prince of Wales's birth; but it does not follow that it would have been dispatched if the queen had borne a daugh- ter; nor do I think that it should havo been. t Ralph, 980. Mazure, ii., 367. 538 CONSTITUTIONAL HISTORY OF ENGLAND [Chap. XIV. prejudice which is chiefly founded on our wishes. Lord Dauby, iu a letter to Will- iam of 3Iarch 27, insinuates his doubt of the queen's pregnancy. After the child's birth, the seven subscribers to the association in- viting the prince to come over, and pledging themselves to join him, say that not one in a thousand believe it to be the queen's; Lord Devonshire separately held language to the same effect.* The Princess Anne talked with little restraint of her suspicions, and made no scruple of imparting them to her sister.f Though no one can hesitate at present to acknowledge that the Prince of Wales's legitimacy is out of all question, there was enough to raise a reasonable ap- prehension in the presumptive heir, that a party not really veiy scrupulous, and through religious anunosity supposed to be still less so, had been induced by the undoubted prospect of advantage to draw the king, who had been wholly then* slave, into one of those frauds which bigotry might call pious, t The great event, however, of what has Justice and been emphatically denominated, the Reroiu- i° language of our public acts, lion. the Glorious Revolution, stands in need of no vulgar credulity, no mistaken prejudice, for its support. It can only rest * on the basis of a liberal theory of govern- ment, which looks to the public good as the gi"eat end for which positive laws and the constitutiouEd order of states have been in- stituted. It can not be defended without rejecting the slavish principles of absolute " Dalrymple, 216, 228. The prince was urged in the memorial of the seven to declare the fraud of the queen's pregnancj' to be one of the grounds of his expedition. He did this : and it is the only part of his declaration that is false. t State Trials, xii., 151. Mary put some very sensible questions to her sister, which show her de- eire of reaching the truth in so important a matter. They were answered in a stjle which shows that Anne did not mean to lessen her sister's suspi- cions.— Dalrymple, 305. Her conversation with Lord Clarendon on this subject, after the deposi- tions had been taken, is a proof that she had made up her mind not to be convinced. Henrj- Earl of Clarendon's Diary, 77, 79. State Trials, nbi snpra. i M. Mazure has collected all the passages in the letters of Barillon and Bonrepos to the court of France relative to the queen's pregnancy, ii.. 366 ; and those relative to the birth of the Prince of Wales, p. 547. It is to be observed that this took place more than a month before the time ex- pected. obedience, or even that pretended modifica- tion of them which imagines some extreme case of intolerable tyranny, some, as it were, lunacy of despotism, as the only plea and palliation of resistance. Doubtless the administration of James II. was not of this nature. Doubtless he was not a Caligula, or a Commodus, or an Ezzelin, or a Gale- azzo Sforza, or a Christiern II. of Den- mark, or a Charles IX. of France, or one of those almost innumerable tyrants whom men have endured in the wantonness of un- limited power. No man had been deprived of his liberty by any illegal warrant. No man, except m the single though veiy im- portant instance of Magdalen College, had been despoiled of his property. I must also add that the government of James II. will lose little by comparison with that of his father. The judgment in favor of his pre- rogative to dispense with the Test was far more according to received notions of law, far less injurious and unconstitutional, than that which gave a sanction to sliip-money. The injunction to read the Declaration of Indulgence in churches was less offensive to scrupulous men than the similar com- mand to read the Declaration of Sunday I Sports in the time of Charles I. Nor was any one punished for a refusal to comply with the one, while the prisons had been filled with those who had disobeyed the other. Nay,-^vhat is more, there are much stronger presumptions of the father's than of the son's intention to lay aside Parlia- ments, and set up an avowed despotism. It is, indeed, amusing to observe that many, who scarcely put bounds to their eulogies of Charles I., have been content to abandon the cause of one who had no faults in his public conduct but such as seemed to have come by inheritance. The characters of the father and son were very closely simi- lar; both proud of their judgment as well as their station, and still more obstinate in their understanding than in their purpose ; both scrupulously conscientious in certain great points of conduct, to the sacrifice of that power which they had preferred to eveiy thing else : the one far superior in relish for the arts and for polite letters, the other more diligent and indefatigable in bus- iness ; the father exempt from those vices of a court to which the son was too long ad- dicted ; not so harsh, perhaps, or prone to James II.] FROM HENEY VII. TO GEORGE II. 539 severity in his temper, but inferior in gen- eral sincerity iind adherence to his word. They were both equally unfitted for the condition in which they were meant to stand — the limited kings of a wise and free people, the chiefs of the English Common- wealth. The most plausible argument against the necessity of so violent a remedy for public gi'ievances as the abjuration of allegiance to a reigning sovereigu, was one that misled half the nation in that age, and is still some- times insinuated by those whose pity for tlie misfortunes of the house of Stuart ap- pears to predominate over every other sen- timent which the history of the Revolution should excite. It was alleged that the con- stitutional mode of redress by Parliament was not taken away; that the king's at- tempts to obtain promises of support from the electors and probable representatives showed his intention of calling one ; that the wi-its were in fact ordered before the Prince of Orange's expedition ; that after the invader had reached London, James still offered to refer the terms of reconcilia- tion with his people to a free Parliament, though he could have no hope of evading any that might be proposed ; that by re- versing illegal judgments, by annulling un- constitutional dispensations, by reinstating those who had been unjustly dispossessed, by punishing wicked advisers — above all, by passing statutes to restrain the excesses and cut off the dangerous prerogatives of the monarchy (as efficacious, or more so, than the Bill of Rights and other measures that followed the Revolution), all risk of arbitra- ly power, or of injury to the established religion, might have been prevented, with- out a violation of that hereditary right which was as fundamental in the Constitution as any of the subject's privileges. It was not necessary to enter upon the delicate prob- lem of absolute non-resistance, or to deny that the conservation of the whole was par- amount to all positive laws. The question to be proved was, that a regard to this gen- eral safety exacted the means employed in the Revolution, and constituted that ex- tremity which could alone justify such a deviation from the standard rules of law and religion. It is evidently ti'ue that James had made very little progi-ess, or, rather, experienced a signal defeat, in his endeavor to place the professors of his own religion on a firm and honorable basis. There seems the stron- gest reason to believe, that, far from reach- ing his end tlu-ough the new Parliament, he would have experienced those warm as- saults on the administration which generally distinguished the House of Commons under his father and brother ; but as he was in no want of money, and had not the temper to endure what ho thought the language of Republican faction, we may be equally sure that a short and angiy session would have ended with a more decided resolution on his side to govern in future without such impracticable counselors. The doctrine im- puted of old to Lord Strafford, that, after trying the good-will of Parliament in vain, a king was absolved from the legal maxims of government, was always at the heart of the Stuarts. His army was numerous, ac- cording, at least, to English notions ; he had already begun to fill it with popish officers and soldiers ; the militia, though less to be depended on, was under the command of lord and deputy lieutenants carefully se- lected ; above all, he would, at the last, have recourse to France ; and though the experiment of bringing over French troops was very hazardous, it is difficult to say that he might not have succeeded, with all these means, in preventing or putting down any concerted insurrection. But at least the renewal of civil bloodshed and the an- archy of rebellion seemed to be the alter- native of slavery, if William had never earned the just title of our deliverer. It is still more evident that, after the invasiort had taken place, and a general defection had exhibited the king's inability to resist, there could have been no such compromise as the Tories fondly expected, no legal and peaceable settlement in what they called a free Parliament, leaving James in the real and recognized possession of his consti- tutional prerogatives. Those who have gi-udged William III. the laurels that he won for our sei'vice are ever prone to insin- uate, that his unnatural ambition would be content with nothing less than the crown, instead of returning to his countty after he had convinced the king of the error of his counsels, and obtained securities for the re- ligion and liberties of England. The hazard of the enterprise, and most hazardous it 540 CONSTITUTIONAL HISTORY OF ENGLAND [Chap. XIV. truly was, was to have been his ; the profit and advautage our own. I do not know that William absolutely expected to place himself on the throne, because he could hardly anticipate that James would so pre- cipitately abandon a kingdom wherein he was acknowledged, and had stiU many ad- herents ; but undoubtedly he must, in con- sistency with his magnanimous designs, have determined to place England in its natural station, as a party in the great al- liance against the power of Louis XIV. To this one object of secimng the liberties of Europe, and chiefly of his own countiy, the whole of his heroic life was directed with undeviating, undisheartened firmness. He had in view no distant prospect, when the entire succession of the Spanish mon- archy would be claimed by that insatiable prince, whose renunciation at the treaty of the Pyrenees was already maintained to be invalid. Against the present aggressions and future schemes of this neighbor the league of Augsburg had just been con- cluded. England, a free, a Protestant, a maritime kingdom, would, in her natural position, as a rival of France, and deeply concerned in the independence of the Neth- erlands, become a leading member of this confederacy. But the sinister attachments of the house of Stuart had long diverted her from her tiTie interests, and rendered her councils disgracefully and treacherously subseiTient to those of Louis. It was there- fore the main object of the Prince of Or- ange to strengthen the alliance by the vig- orous co-operation of this kingdom ; and with no other view, the emperor, and even the pope, had abetted his undertaking. But it was impossible to imagine that James would have come with sincerity into meas- ures so repugnant to his predilections and interests. What better could bo expected than a reciurence of that false and hollow system which had betrayed Europe and dishonored England under Charles II. ; or, rather, would not the sense of injury and thraldom have inspired still more deadly aversion to the cause of those to whom he must have ascribed his humiliation ? There was as little reason to hope that he would abandon the long-cherished schemes of ar- bitrary power, and the sacred interests of his own faith. We must remember that, when the adherents or apologists of James II. have spoken of him as an unfortunately misguided prince, they have insinuated what neither the notorious history of those times, nor the more secret information since brought to light, will in any degree confirm. It was, indeed, a strange excuse for a king of such mature years, and so trained in the most diligent attention to business. That in some particular instances he acted under the influence of his confessor, Peti'e, is not unlikely ; but the general temper of his ad- ministration, his notions of government, the objects he had in view, were perfectly his own, and were pursued rather in spite of much dissuasion and many warnings, than through the suggestions of any treacherous counselors. Both with respect, therefore, to the Prince of Orange and to the English nation, James II. was to be considered as an enemy whose resentment could nev«r be appeased, and whose power, consequently, must be wholly taken away. It is ti-ue that, if he had remained in England, it would have been extremely difficult to deprive him of the nominal sovereignty ; but in this case, the Prince of Orange must have been in- vested, by some course or other, with all its real attributes. He undoubtedly in- tended to remain in this countiy, and could not otherwise have preseiTed that entire ascendency which was necessary for his ultimate purposes. The king could not have been permitted, with any common prudence, to retain the choice of his min- isters, or the command of his array, or his negative voice in laws, or even his personal liberty ; by which I mean, that his guards must have been either Dutch, or at least appointed by the prince and Parliament. Less than this it would have been childish to require ; and this would not have been endured by any man even of James's spirit, or by the nation, when the reaction of loy- alty should return, without continued efforts to get rid of an ari'angement far more revo- lutionaiy and subversive of the established monarchy than the king's deposition. In the Revolution of 1688 there was an unusual combination of favoring Favorable cir- circumstances, and some of the ^?,T^',^"''*'1),. ^ attending the most important, such as the Revoiutmn. king's sudden flight, not within prior cal- culation, which render it no precedent for other times and occasions in point of ex- James II.] FROM HENRY VII. TO GEORGE II. 541 pediency, whatever it may be in point of justice. Resistance to tyranny by overt rebellion incurs not only the risks of failure, but those of national impoverishment and confusion, of vindictive retaliation, and such aggressions (pei'haps inevitable) on private right and liberty as render the name of rev- olution and its adherents odious. Those, on the other hand, who call in a powerful neighbor to protect them from domestic op- pression, may too often expect to realize the horse of the fable, and endure a subjection more severe, permanent, and ignominious than what they shake off. But the rev- olution effected by William III. united the independent character of a national act with the regularity and the coercion of anarchy which belong to a militaiy invasion. The United Provinces were not such a foreign potentate as could put in jeopardy the inde- pendence of England ; nor could his army have maintained itself against the inclina- tions of the kingdom, though it was suffi- cient to repress any turbulence that would naturally attend so exti'aordinary a crisis. Nothing was done by the multitude ; no new men, either soldiers or demagogues, liad their talents brought forward by this rapid and pacific revolution ; it cost no blood, it violated no right, it was hardly to be traced in the course of justice ; the formal and ex- terior character of the monarchy remained nearly the same in so complete a regenera- tion of its spirit. Few nations can hope to ascend up to the sphere of a just and hon- orable liberty, especially when long use has made the track of obedience familiar, and they have learned to move as it were only by the clank of the chain, with so little toil and hardship. We reason too exclusively fi'om this peculiar instance of 1688, when we hail the fearful stniggles of other revo- lutions with a sanguine and confident sym- pathy. Nor is the only error upon this side ; for, as if the inveterate and cankerous ills of a commonwealth could be extirpated with no loss and suffering, we are often prone to abandon the popular cause in agitated na- tions with as much fickleness as we em- braced it, when we find that intemperance, irregularity, and confusion, from which gi-eat revolutions are very seldom exempt. These are, indeed, so much their usual attendants, the reaction of a self-deceived multitude is so probable a consequence, the general pros- pect of success in most cases so precarious, that wise and good men are more likely to hesitate too long, than to rush forward too eagerly ; yet, " whatever be the cost of this noble liberty, we must be content to pay it to Heaven." * It is unnecessary even to mention those circumstances of this great event, which are minutely known to almost all my readers. They wore all eminently favorable in their effect to the regeneration of our Constitu- tion ; even one of temporary inconvenience, namely, the return of James to London, after his detention by the fishermen near Feversham. This, as Burnet has obsei-ved, and as is easily demonsti'ated by the writ- ings of that time, gave a different color to the state of affairs, and raised up a party which did not before exist, or at least was too disheartened to show itself. f His first desertion of the kingdom had disgusted eveiy one, and might be construed into a voluntaiy cession ; but his return to assume again the government put William under the necessity of using that intimidation which awakened the mistaken sympathy of a generous people. It made his subse- quent flight, though certainly not what a man of courage enough to give his better judgment free play would have chosen, ap- * Montesquieu. t Some short pamphlets, vrritten at this juncture, to excite sympathy for the king, and disapproba- tion of the course pursued with respect to hira, are in the Somers Collection, vol. ix. But this forco put upon their sovereign first wounded the con- sciences of Bancroft and the other bishops, who had hitherto done as much as in their station they well could to i-uin the lying's cause and paralyze his arms. Several modem writers have endeavor- ed to throw an interest about James at the mo- ment of his fall, either from a lurking predilection for all legitimately crowned heads, or from a notion that it becomes a generous historian to excite com- passion for the unfortunate. There can be no ob- jection to pitying James, if this feeling is kept un- mingled with any blame of those who were the instruments of liis misfortune. It was higlilj'- ex- pedient for the good of this country, because the revolution settlement could not otherwise be at- tained, to work on James's sense of his deserted state by intimidation ; and for that purpose, the or- der conveyed by three of his own subjects, perhaps with some rudeness. of manner, to leave White- hall, was necessary. The drift of several accounts of the Revolution that may be read is to hold forth Mulgi'ave, Craven, An'an. and Dundee to admira- tion, at the expense of William and of those who achieved the great consolidation of English liberty. CONSTITUTIONAL HISTORY OF ENGLAND [Chap. XIV. pear excusable and defensive. It brought out too glaringly, I mean for the satisfaction of prejudiced minds, the undeniable fact, that the two houses of Convention deposed and expelled their sovei'eign. Thus the gi-eat schism of the Jacobites, though it must otherwise have existed, gained its chief strength ; and the Revolution, to which at the outset a coalition of Whigs and Tories had conspired, became, in its final result, in the settlement of the crown upon William and iNIaiy, almost entirely the work of the former party. But while the position of the new gov- ernment was thus rendered less secure, by narrowing the basis of public opinion where- on it stood, the liberal principles of policy which the Whigs had espoused became in- comparably more powerful, and were nec- essarily involved in the continuance of the revolution settlement. The ministers of William III. and of the house of Bi'unswick had no choice but to respect and counte- nance the doctrines of Locke, Hoadley, and Molesworth. The assertion of passive obe- dience to the crown gi-ew obnoxious to the crown itself. Our new line of sovereigns scarcely ventured to hear of their hereditaiy right, and dreaded the cup of flattery that was drugged with poison. This was the greatest change that affected oiu- monarchy by the fall of the house of Stuart. The laws were not so materially altered as the spirit and sentiments of the people ; hence those who look only at the former have been prone to underrate the magnitude of this Revolution. The fundamental maxims of the Constitution, both as they regard the king and the subject, may seem nearly the same ; but the disposition with which they were received and interpreted was entirely different. It was in this turn of feeling, in this It. salutary ^ "^^^ ^° ^^^^ °^ ^^^\ consequen- heart, far more than In any posi- ' tive statutes and improvements I of the law, that I consider the Revolution ! to have been eminently conducive to our { freedom and prosperity. Laws and statutes ' as remedial, nay, more closely limiting the prerogative than the Bill of Rights and Act of Settlement, might possibly have been obtained from James himself as the price ' of his continuance on the throne, or from j his family as that of their restoration to it. i But what the Revolution did for us was this : it broke a spell that had charmed the nation ; it cut up by the roots all that theory of indefeasible right, of paramount preroga- tive, which had put the crown in continual opposition to the people. A contention had now subsisted for five hundred years, but particularly during the last four reigna, against the aggressions of arbitraiy power. The sovereigns of this country had never patiently endured the control of Parlia- ment ; nor was it natural for them to do so, while the two houses of Parliament ap- peared liistorically, and in legal language, to derive their existence as well as privi- leges from the ci'own itself. They had at their side the pliant lawyers, who held the prerogative to be uncontrollable by statutes, a doctrine of itself destructive to any scheme of reconciliation and compromise between the king and his subjects ; they had the churchmen, whose casuistry denied that the most intolerable tyranny could excuse resistance to a lawful government. These two propositions could not obtain genei-al acceptation without rendering all national liberty precaiious. It has been always reckoned among the most difficult problems in the practical sci- ence of government, to combine an heredi- tary monarchy with security of freedom, so that neither the ambition of kings shaD undermine the people's rights, nor the jeal- ousy of the people overturn the throne. England had ah-eady experience of both these mischiefs. And there seemed no prospect before her, but either their alter- nate recurrence, or a final submission to ab- solute power, unless by one great effort she could put the monarchy forever beneath the law, and reduce it to an integrant por- tion instead of the primary source and prin- ciple of the Constitution. She must reduce the favored maxim, " A Deo rex, k rege lex," and make the crown itself appear the creature of the law. But our ancient mon- archy, strong in a possession of seven cen- turies, and in those high and paramount prerogatives which the consenting testi- mony of lawyers and the submission of Parliaments had recognized, a monarchy from which the House of Commons and eveiy existing peer, though not, perhaps, the aristocratic order itself, derived its par- ticipation in the Legislature, could not be James IL] FROM HENRY VII. TO GEORGE II. 543 bent to the Republican theories which have been not very successfully attempted in some modern codes of Constitution. It could not be held, without breaking up all the foundations of our polity, that the mon- archy emanated from the Pailiament, or, in any historical sense, from the people. But by the Revolution and by the Act of Settlement, the rights of the actual monarch, of the reigning family, were made to ema- nate from the Parliament and the people. In technical language, in the grave and re- spectful theoiy of our Constitution, the crown is still the fountain from which law and justice spring forth. Its prerogatives are in the main the same as under the Tudors and the Stuarts, but the right of the house of Brunswick to exercise them can only be deduced from the Convention of 1688. The gi-eat advantage, therefore, of the Revolution, as I would explicitly affirm, consists in that which was reckoned its reproach by many, and its misfortune by more — that it broke the line of succession. No other remedy could have been found, according to the temper and prejudices of those times, against the unceasing conspira- cy of power. But when the very tenure of power was conditional, when the crown, as we may say, gave recognizances for its good behavior, when any violent and con- certed aggressions on public liberty would have ruined those who could only resist an inveterate faction by the arms which liberty put in theii' hands, the several parts of the Constitution were kept in cohesion by a tie far stronger than statutes, that of a common interest in its preservation. The attachment of James to popeiy, his infatuation, his ob- stinacy, his pusillanimity, nay, even the death of the Duke of Gloucester, the life of the Prince of Wales, the extraordinary perma- nence and fidelity of his party, were all the destined means tlirough which our present grandeur and liberty, om- dignity of thinking on matters of government, have been perfect- ed. Those liberal tenets, which at the era of the Revolution were maintained but by one denomination of English pai'ty, and rather, perhaps, on authority of not veiy good prec- edents in our history than of sound general reasoning, became, in the course of the next generation, almost equally the creed of the other, whose long exclusion from govern- j ment taught them to solicit the people's favor ; and by the time that Jacobitisin was extinguished, had passed into received max- ims of English politics. None, at least, would care to call them in question within the walls of Parliament ; nor have their opponents been of much credit in the paths of literature. Yet, as since the extinction of the house of Stuart's pretensions, and other events of the last half century, we have seen those exploded docU'ines of inde- feasible hereditary right revived under an- other name, and some have been willing to misrepresent the ti'ansactions of the Revo- lution and the Act of Settlement as if they did not absolutely amount to a deposition of the reigning sovereign, and an election of a new dynasty by the representatives of the nation in Parliament, it may be proper to state precisely the several votes, and to point out the impossibility of reconciling them to any gentler construction. The lords spiritual and temporal, to the number of about ninety, and an „ , , „ „ , , , . Proceedings assembly oi all who had sat m any of the Con- of King Charles's Parliaments, with the lord-mayor and fifty of the com- mon council, requested the Prince of Or- ange to take upon hun the administration after the king's second flight, and to issue wi-its for a Convention in the usual manner.* This was on the 26th of December ; and the Convention met on the 22d of January. Their first care was to address the prince to take the administi-ation of aflfairs and dis- posal of the revenue into his hands, in order to give a kind of Parliamentaiy sanction to the power he already exercised. On the 28th of January, the Commons, after a de- bate in which the fi-iend^ of the late king * Pad. Hist., V. 26. The foiTaer address on the king's first quitting London, signed by the peers and bishops, who met at Guildhall, Dec. 11, did not, in express terms, desire the Prince of Orange to assume the goverament, or to call a Parliament, though it evidently tended to that result, censur- ing the king and extolling the prince's conduct. — Id., 19. It -was signed by the archbishop, his last public act. Burnet has exposed himself to the lash of Ralph by stating this address of Dec. 11 incorrectly. [The prince issued two proclamations, Jan. 16 and 21, addressed to the soldiers and sail- ors, on which Ralph comments in his usual invidi- ous manner. They are certainly expressed in a high tone of sovereignty, without the least allusion to the king, or to the request of the peers, and some phrases might give offense to our lawyers. — Ralph, ii., 10.— 1845.] 544 CONSTITUTIONAL HISTORY OF ENGLAND [Chap. XIV. made but a faint opposition,* came to their great vote : That King James II., having endeavored to subvert the Constitution of this kingdom by breaking the original con- tract between king and people, and by the advice of Jesuits and other wicked persons having violated the fundamental laws, and having withdrawn himself out of the king- dom, has abdicated the government, and that the throne is thereby vacant. They resolved unanimously the next day, that it hath been found by experience inconsistent with the safety and welfare of this Protes- tant kingdom to be governed by a popish prince. f This vote was a remarkable tri- umph of the Whig party, who had contend- ed for the Exclusion Bill; and, on account of that endeavor to establish a principle which no one was now found to controvert, had been subjected to all the insults and re- proaches of the opposite faction. The Lords agieed with equal unanimity to this vote ; which, though it was expressed only as an abstract proposition, led by a practi- cal inference to the whole change that the Whigs had in view. But upon the former resolution several important divisions took place. The first question put, in order to save a nominal allegiance to the late king, was, whether a regency, with the adminis- tration of regal power under the style of King James II. during the life of the said King James, be the best and safest way to pi'eserve the Protestant religion and the laws of this kingdom 1 This was supported both by those peers who really meant to exclude the king from the enjoyment of power, such as Nottingham, its gi-eat promoter, and by those who, like Clarendon, Avere anxious for his return upon terms of security for their religion and liberty. The motion was lost by * [It appears by some notes of the debate iu tlie Conveutiou, published iu the Hardwicke Papers, ii., 401, that the vote of abdication was carried with only three negatives. The tide ran too liigh for the Tories, though some of them spoke ; they recovered their spirits after the Lords' amend- ments. This account of the debate is remarkable, and clears up much that is obscure in Grey, whom the Parliamentarj' Histoi-y has copied. The Dec- laration of Right was drawn up rather hastily, Sergeant Mayuard, as well as younger lawyers, pressing for no delay iu filling the throne. I sup- pose that the wish to screen themselves under the statute of Henry VII. had something to do with this, which was also very expedient in itself. — 1845.1 t Commons' Journals. Pari. Hist. fiftj-one to forty-nine ; and this seems to have virtually decided, in the judgment of the House, that James had lost the throne.* The Lords then resolved that there was an original contract between the king and peo- ple, by fifty-five to forty-six ; a position that seems rather too theoretical, yet necessary at that time, as denying the divine origin of monarchy, from which its absolute and in- defeasible authority had been plausibly de- rived. They concurred, without much de- bate, in the rest of the Commons' vote, till they came to the clause that he had abdica- ted the government, for which they substi- tuted the word " deserted." They next omitted the final and most important clause, that the throne weis thereby vacant, by a majority of fifty-five to forty-one. This was owing to the party of .Lord Danby, who as- serted a devolution of the crown on the Princess of Orange. It seemed to be tacit- ly understood by both sides that the infant child was to be presumed spuiious. This, at least, was a necessaiy supposition for the Tories, who sought in the idle rumors of the time an excuse for abandoning his right. As to the Whigs, though they were active in discrediting this unfortunate boy's legiti- macy, their own broad principles of chang- ing the line of succession rendered it, in point of argument, a superfluous inquiry. The Tories, who had made little resistance to the vote of abdication when it was pro- posed in the Commons, recovered courage by this difference between the two Houses ; and perhaps, by observing the king's party to be stronger out of doors than it had ap- peared to be, were able to muster 1.51 voi- ces against 282 in favor of agi-eeing with the Lords in leaving out the clause about the vacancy of the throne, f There was still, however, a far gi-eater preponderance of the Whigs in one part of the Convention, * Somerville aud several other writers have not accurately stated the question ; and suppose the Lords to have debated whether the throne, on the hypothesis of its vacancy, should be filled by a king or a regent. Such a mode of putting the question would have been absurd. I observe that M. Mazure has been deceived by these authorities. t Pari. Hist., 61. The chief speakers on this side were old Sir Thomas Clarges, brother-in-law of General Monk, who had been distinguished as an opponent of administration tinder Charles and James, and Mr. Finch, brother of Lord Notting- ham, who had been solicitor-general to Charles, but was removed in the late reign. James II.] mOM HENRY VII. TO GEORGE II. 545 than of the Tories in the other. In the fa- mous conference that ensued between com- mittees of the two Houses upon these amendments, it was never pretended that the woi-d " abdication" was used in its ordi- naiy sense for a voluntary resignation of the crown. The Commons did not practice so pitiful a subterfuge. Nor could tho Lords explicitly maintain, whatever might be the wishes of their managers, that the king was not expelled and excluded as much by their own word " desertion" as by that which the Lower House had employed. Their own previous vote against a regency was decisive upon this [wint.* But as abdication was a gentler term than forfeiture, so desertion appeared a still softer method of expressing the same idea. Their chief objection, how- ever, to the former word was, that it led, or might seem to lead, to the vacancy of the throne, against which their jjrincipal argu- ments were directed. They contended that in our government there could be no interval or vacancy, the heir's right being complete by a demise of the crown, so that it would at once render the monarchy elect- ive if any other person were designated to the succession. The Commons did not deny that the present case was one of election, though tliey refused to allow that the mon- archy was thus rendered perpetually elect- ive. They asked, supposing a right to de- scend upon the next heir, who was that heir to inherit it ? and gained one of their chief advantages by the difficulty of evading this question. It was, indeed, evident that if the Lords should cany their amendments, an inquiiy into the legitimacy of the Prince of Wales could by no means be dispensed with. Unless that could be disproved more satisfactorily than they had reason to hope, they must come back to the inconveniences of a regency, with the prospect of bequeath- ing an interminable confusion to their pos- terity ; for if the descendants of James should continue in the Roman Catholic re- ligion, the nation might be placed in the ridic- ulous situation of acknowledging a dynasty of exiled kings, whose lawful prerogative would be withheld by another race of Prot- estant regents. It was, indeed, sti-ange to apply the provisional substitution of a re- gent in cases of infancy or imbecility of mind * .James is called " the late kiug" in a resolution of the Lords on Feb. 2. M M to a prince of mature age and full capacity for the exercise of power. Upon the king's return to England, this delegated authority nmst cease of itself, unless supported by votes of Parliament as violent and incom- patible with the regular Constitution as hia deprivation of the royal title, but far less se- cure for the subject, whom the statute of Henry VII. would shelter in paying obe- dience to a king de facto, while the fate of Sir Henry Vane was an awful proof that no other name could give countenance to usur- pation. A great part of the nation not thir- ty years before had been compelled by acts of Parliament* to declare upon oath their abhorrence of that traitorous position, that arms might be taken up by the king's au- thority against his person or those commis- sioned by him, through the influence of those very Tories or Loyalists who had now re- course to the identical distinction between the king's natural and political capacity, for which the Presbyterians had incun-ed so many reproaches. In this conference, however, if the Whigs had every advantage on the solid gi-ounds of expediency, or, rather, political necessi- ty, the Tories were as much superior in the mere argument, either as it regarded the common sense of words, or the principles of our constitutional law. Even should we admit that an hereditary king is competent to abdicate the throne in the name of all his posterity, this could only be intended of a voluntary and formal cession, not such a constructive abandonment of his right by misconduct as the Commons had imagined. The word "forfeiture" might better have answered this purpose ; but it had seemed too great a violence on principles which it was more convenient to undermine than to assault. Nor would even forfeiture bear out by analogy the exclusion of an heir, whose right was not liable to be set aside at the ancestor's pleasure. It was only by recur- ring to a kind of paramount, and what 1 may call hyper-constitutional law, a mixture of force and regard to the national good, which is the best sanction of what is done in revolutions, that the vote of the Com- mons could be defended. They proceeded not by the stated rules of the English gov- ernment, but the general rights of mankind. They looked not so much to Magna Charta * 13 Car. II., c. i. 17 Car. II., c. ii. 546 CONSTITUTIONAL HISTORY OF ENGLAND [Chap. XIV. as the original compact of society, and re- jected Coke and Hale for Hooker and Har- rington. The House of Lords, after this struggle against principles undoubtedly very novel in the discussions of Parliament, gave way to the strength of circumstance and the stead- iness of the Commons. They resolved not to insist on their amendments to the original vote ; and followed this up by a resolution, that the Prince and Princess of Orange shall be declared King and Queen of En- gland, and all the dominions thereunto be- longing.* But the Commons, with a noble patriotism, delayed to concur in this hasty settlement of the crown, till they should have completed the declaration of those fun- damental rights and liberties for the sake of which alone they had gone forward with this gi-eat Revolution. f That declaration, being at once an exposition of the misgov- ernment which had compelled them to de- throne the late king, aud of the conditions upon which they elected his successoi-s, was incorporated in the final resolution to which both Houses came on the 13th of February, extending the limitation of the crown as far as the state of affairs required : Elevation of " That William and Mary, prince Maly^'toth"'^ and princess of Orange, be, and throne. be declared. King and Queen of England, France, and Ireland, and the do- minions thereunto belonging, to hold the crown and dignity of the said kingdoms and ■dominions to them, the said prince and prin- cess, during their lives, and the life of the survivor of them ; and that the sole and full exercise of the regal power be only in, .and executed by, the said Prince of Orange, * This was carried by sixty-two to fortj'-seven, according to Lord Clarendon ; several of the Tories going over, and others who had been hitherto ab- sent coming down to vote. Forty peers protested, including twelve bishops, oat of seventeen pres- ent. Trelawney, who had voted against the re- gency, was one of them ; but not Compton, Lloyd of St. Asaph, Crewe, Sprat, or Hall ; the three former, I believe, being in tlie majoritj'. Lloyd had been absent when the vote passed against a regency, out of unwillingness to disagree with the majority of his brethren ; but he was entirely of Burnet's mind. The votes of the bishops are not accurately stated in most books, which has induced me to mention them here. — Lords' Journals, Feb. 6. t It had been resolved, Jan. 29, that before the committee proceed to fill the throne now vacant, "they will proceed to secure our religion, laws, aud liberties. in the names of the said prince and princess, during their joint lives ; and after their de- cease the said crown and royal dignity of the said kingdoms and dominions to be to the heirs of the body of the said princess ; for default of such issue, to the Princess Anne of Denmark, and the heirs of her body ; and for default of such issue, to the heirs of the body of the said Prince of Or- ange." Thus, to sum up the account of this ex- traordinary change in our established mon- archy, the Convention pronounced, under the slight disguise of a word unusual in the language of English law, that the actual sovereign had forfeited his right to the na- tion's allegiance. It swept away by the same vote the reversion of his posterity and of those who could claim the inheritance of the crown. It declared that, during an in- terval of nearly two months, there was no King of England ; the monarchy lying, as it were, in abeyance from the 23d of Decem- ber to the 13th of February. It bestowed the crown on William, jointly with his wife indeed, but so that her participation of the sovereignty should be only in name.* It postponed the succession of the Princess * See Burnet's remarkable conversation with Bentinck, wherein the former warmly opposed the settlement of the crown on the Prince of Orange alone, as Halifax had suggested. But nothing in it is more remarkable than that the bishop does not perceive that this was virtually done ; for i' would be difficult to prove that Marj''s royalty dif fered at all from that of a queen consort, except ip having her name in the style. She was exactly in the same predicament as Philip had been during his marriage with Mary I. Her admii'able temper made her acquiesce in this exclusion from power, which the sterner character of her husband de- manded ; and, with respect to the conduct of the Convention, it must be observed that the nation owed her no particular debt of gi-atitude, nor had she any better claim than her sister to fill a throne by election, which had been declared vacant. In fact, there was no middle course between what was done and following the precedent of Philip, as to which Bentinck said, he fancied the prince would not like to be his wife's gentleman usher, for a divided sovereigntv' was a monstrous and im- practicable expedient in theory, however the sub- missive disposition of the queen might have pre- vented its mischiefs. Buniet seems to have had a puzzled view of this ; for he says afterward, " It seemed to be a double-bottomed monarchy, where there were two joint sovereigns ; but those who know the queen's temper and principles had no apprehensions of divided counsels, or of a distract- ed government." — Vol. ii., 2. The Convention had Will. III.] FROM HENRY VII. TO GEORGE U, 547 Anne during his life. Lastly, it made no provision for any future devolution of the crown in failure of issue from those to whom it was thus limited, leaving that to the wis- dom of future Parliaments. Yet only eight years before, nay, much less, a large part of the nation had loudly proclaimed the in- competency of a full Parliament, with a lavi'ful king at its head, to alter the lineal course of succession. No Whig had then openly professed the doctrine, that not only a king, but an entire royal family, might be set aside for public convenience. The no- tion of an original contract was denounced as a Republican chimera. The deposing of kings was branded as the worst birth of popery and fanaticism. If other revolutions have been more extensive in their effect on the established government, few, perhaps, have displayed a more rapid transition of public opinion ; for it can not, I think, be reasonably doubted that the majority of the nation went along with the vote of their rep- resentatives. Such was the termination of that contest which the house of Stuart had obstinately maintained against the liberties, and of late, against the religion of England ; or, rather, of that far more ancient contro- versy between the crown and the people, which had never been wholly at rest since the reign of .lohn. During this long period, the balance, except in a few irregular inter- vals, had been swayed in favor of the crown ; and though the government of England was always a monarchy limited by law — though it always, or at least since the admission of the commons into the Legislature, partook of the three simple forms, yet the character of a monarchy was evidently prevalent over the other parts of the Constitution. But since the Revolution of 1G88, and particu- larly from thence to the death of George IL, after which the popular element gi-ew much stronger, it seems equally just to say, that the predominating character has been aristocratical ; the prerogative being in some respects too limited, and in others too little capable of effectual exercise, to counterbal- ance the hereditary peerage, and that class of gi'eat tetritorial proprietors who, in a political division, are to be reckoned among the proper aristocracy of the kingdom. This, however, will be more fully explained in the two succeeding chaptei's. CHAPTER XV. ON THE REIGN OF WILLIAM III. Declaration of Rights. — Bill of Rights. — Military- Force without Consent declai-ed Illegal. — Dis- content with the new Government. — Its Causes. — Incompatibility of the Revolution with re- ceived Principles. — Character and EiTors of William. — Jealousy of the Whigs. — Bill of In- demnity.— Bill for restoring Corporations. — Set- tlement of the Revenue. — Appropriation of Sup- plies.— Dissatisfaction of the King. — No Re- publican Party in Existence. — William employs Tories in Ministry. — Inti-igues with the late King. — Schemes for his Restoration. — Attain- der of Sir John Fenwick. — 111 Success of the War. — Its Expenses. — Treaty of Ryswick. — Jealousy of the Commons. — Anny reduced. — Irish Forfeitures resumed. — Parliamentai-y In- not trusted to the queen's temper and principles. It required a distinct act of Parliament (2 W. & M., c. 6) to enable her to exercise the regal power during the king's absence from England. [It was urged by some, not without plausible gi'ouuds, on Mary's death, that the Parliament was dissolved by that event, the writs having been issued in her name as well as the king's. A paper, printed, but privately handed about, with the design to prove this, will be found in Pari. Hist., v., 867. But it was not warmly taken up by any party. — 1845.] quiries. — Treaties of Partition. — Improvements in Constitution under William. — Bill for Trien- nial Parliaments. — Law of Treason. — Statute of Edward III. — Its constructive Interpretation.-;- Statute of William III. — Liberty of the Press. — Law of Libel. — Religious Toleration. — At- tempt at Comprehension. — Schism of the Non- jurors.— Laws against Roman Catholics. — Act of Settlement. — Limitations of Prerogative con- tained in it. — Privy Council sui)erseded by a Cabinet. — Exclusion of Placemen and Pension- ers from Parliament. — Independence of Judges. — Oath of Abjuration. The Revolution is not to be considered as a mere effort of the nation on a pressing emergency to rescue itself from the violence of a particular monarch, much less as ground- ed upon the danger of the Anglican Church, Its emoluments, and dignities, from the big- otry of a hostile religion. It was rather the triumph of those principles which, in the language of the present day, are denomina- ted liberal or constitutional, over those of absolute monarchy, or of monarchy not ef- fectually controlled by stated boundaries. 548 CONSTITUTIONAL HISTORY OF ENGLAND [CHAr. XV. It was the termination of a contest between the regal power and that of Parliament, which could not have been brought to so fa- vorable an issue by any other means. But while the chief renovation in the sphit of our government was likely to spring from breaking the line of succession, while no positive enactments would have sufficed to give security to freedom with the legitimate race of Stuart on the throne, it would have been most culpable, and even preposterous, to permit this occasion to pass by without asserting and defining those rights and lib- erties which the veiy indeterminate nature of the king's prerogative at common law, as well as the unequivocal extension it had lately received, must continually place in jeopardy. The House of Lords, indeed, as I have obsei-ved in the last chapter, would have conferred the crown on William and Mary, leaving the redress of gi-ievances to future an-angement; and some eminent law- yers in the Commons, Maynard and Pollex- fen, seem to have had apprehensions of keeping the nation too long in a state of an- nrchy ;* but the gi'eat majority of the Com- mons wisely resolved to go at once to the root of the natron's grievances, and show their new sovereign that he was raised to the throne for the sake of those liberties, by violating which his predecessor had for- feited it. The Declaration of Rights presented to Declaration the Prince of Orange by the Mar- of Rights qyis Qf Halifax, as speaker of the Lords, in the presence of both Houses, on the 18th of February, consists of three parts : a recital of the illegal and arbitraiy acts committed by the late king, and of their consequent vote of abdication ; a declaration, nearly following the words of the former part, that such enumerated acts are illegal ; and a resolution, that the throne shall be filled by the Prince and Princess of Orange, according to the limitations mentioned in the last chapter. Thus the Declaration of Rights was indissolubly connected with the revolution settlement, as its motive and its condition. The Lords and Commons in this instru- ment declare, that the pretended power of suspending laws, and the execution of laws, by regal authority without consent of Par- liament, is illegal ; that the pretended pow- er of dispensing with laws by regal author- ity, as it hath been assumed and exercised of late, is illegal ; that the commission for creating the late court of commissioners for ecclesiastical causes, and all other commis- sions and courts of the like nature, are ille- gal and pernicious ; that levying of money for or to the use of the crown, by pretense of prerogative without giant of Parliament, for longer time or in any other manner than the same is or shall be granted, is iDegal ; that it is the right of the subjects to petition the king, and that all commitments or pros- ecutions for such petitions are illegal ; that the raising or keeping a standing anny with- in the kingdom in time of peace, unless it be with consent of Parliament, is illegal ; that the subjects which are Protestants may have arms for their defense suitable to their condition, and as allowed by law ; that elec- tions of members of Parliament ought to be free ; that the freedom of speech or debates, or proceedings in Parliament, ought not to be impeached or questioned in any court or place out of Parliament ; that excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted ; that juries ought to be duly im- panueled and returned, and that jurors which pass upon men in trials of high ti-eas- on ought to be fi-eeholders ; that all gi-ants and promises of fines and forfeitures of par- ticular persons, before conviction, are illegal and void ; and that, for redress of all gi-iev- ances, and for the amending, strengthening, and preserving of the laws, Parliaments ought to be held frequently.* Tliis declaration was, some months after- ward, confirmed by a regular act ^ ^ of the Legislature in the Bill of Rights, which establishes, at the same time, the limitation of the crown according to the vote of both Houses, and adds the important provision, that all persons who shall hold communion with the Church of Rome, or shall many a papist, shall be excluded, and forever incapable to possess, inherit, or en- joy the crown and government of this realm ; and in all such cases, the people of these realms shall be absolved from their al- legiance, and the crown shall descend to the next heir. This was as near an api)roach * Pari. Hist., v., 54. * Pari. Hist., v., 108. wiiL. nr.] FROM HENHY V: II. TO GEORGE II. 549 to a generalization of the principle of resist- nuce ns could be admitted with any security for public order. The Bill of Rights contained only one clause extending rather beyond the propo- sitions laid down in the Declaration. This relates to the dispensing power, which the Lords had been unwilling absolutely to con- demn. They softened the general asser- tion of its illegality sent up from the other House, by inserting the words " as it has been exercised of late."* In the Bill of Rights, therefore, a clause was introduced, tliat no dispensation by non obstante to any statute should be allowed, except in such cases as should be specially provided for by a bill to be passed daring the present ses- sion. This reservation went to satisfy the scruples of the Lords, who did not agree without difficulty to the complete abolition of a prerogative, so long recognized, and in many cases so convenient.! But the pal- pable danger of permitting it to exist in its indefinite state, subject to the interpretation of time-serving judges, prevailed with the Commons over this consideration of conven- iency; and though in the next Parliament the judges were ordered by the House of Lords to draw a bill for the king's dispens- ing in such cases wherein they should find it necessaiy, and for abrogating such laws as had been usually dispensed with and were become useless, tlie subject seems to have received no further attention. t Except in this article of the dispensing prerogative, we can not say, on comparing the Bill of Rights with what is proved to be the law by statutes, or generally esteemed to be such on the authority of our best writers, that it took away any legal power of the crown, or enlarged the limits of pop- iilar and Parliamentary privilege. The most questionable proposition, though, at the same time, one of the most important, * Journals, 11th and 12th of Feb., 1688-9. t Pari. Hist , 345. t Lords' Journals, 22d of Nov., 1689. [Pardons for murder used to be granted with a " non obstan- tibus statutis." After the Revolution it was con- tended that they were no longer legal. — 1 Shower, 284. But Holt held " the power of pardoning all ofifenses to be an inseparable incident of the crown and its royal power." This savors a little of old Tory times ; for there are certainly unrepealed stat- utes of Edward III. which materially limit the crown's prerogative of pardoning felonies. — 1845.] was that which asserts the ille- Military gality of a standing army in time ^renTd'^"' of peace, unless with consent of dared illegal. Parliament. It seems difficult to perceive in what respect this infringed on any private man's right, or by what clear reason (for no statute could be pretended) the king was debarred from enlisting soldiers by volunta- ry conti'act for the defense of his domin- ions, especially after an express law had de- clared the sole power over the militia, with- out giving any definition of that word, to re- side in the crown. This had never been expressly maintained by Charles II. 's Par- liaments, though the general repugnance of the nation to what was certainly an in- novation might have provoked a body of men, who did not always measure their words, to declare its illegality.* It was, * The guards retained out of the old ai-my dis- banded at the king's return have been already mentioned to have amounted to about 5000 men, though some assert their number at first to have been considerably less. No objection seems to have been made at the time to the continuance of these regiments. But in 1667, on the insult offer- ed to the coasts by the Dutch fleet, a great panic arising, 12,000 fresh troops were hastily levied. The Commons, on July 25, came to a unanimous resolution, that his majesty be humbly desired by such members as are his privy council, that wheu a peace is concluded, the new-raised forces be dis- banded. The king, four days after, in a speech to both Houses, said, " he wondered what one thing he had done since his coining into England, to persuade any sober person that he did intend to govern by a standing anny ; he said he was more an Englishman than to do so. He desired, for as much as concerned him, to preserve the laws," &c. — Pari. Hist., iv., 363. Next session the two Houses thanked him for having disbanded the late raised forces. — Id., 369. But in 1673, during the second Dutch war, a considerable force having been levied, the House of Commons, after a warm debate, resolved, Nov. 3, that a standing army was a grievance. — Id., 604. And on February follow- ing, that the continuing of any standing forces in this nation, other than the militia, is a great griev- ance and vexation to the people ; and that this House do humbly petition his majesty to cause immediately to be disbanded that part of them that were raised since Jan. 1, 1663. — Id., 665. This was done not long afterward; but early in 1678, on the pretext of entering into a war with France, he suddenly raised an army of 20,000 men, or more, according to some accounts, which gave so much alarm to the Parliament, that they would only vote supplies on condition that these troops should be immediately disbanded. — Id., 985. The king, how- ever, employed the money without doing so; and maintained, in the next session, that it had been necessary to keep them on foot; intimating, at the 550 CONSTITUTIONAL HISTORY OF ENGLAND [Chap. XV. however, at least unconstitutional, by which, as distinguished from illegal, I mean a nov- elty of much importance, tending to endan- ger the established laws ; and it is manifest that the king could never inflict penalties by martial law, or generally by any other course, on his troops, nor quarter them on the inhabitants, nor cause them to interfere with the civil authorities ; so that, even if the proposition so absolutely expressed may be somewhat too wide, it still should be con- sidered as virtually correct.* But its dis- same time, that he was now willing to comply, if the House thought it expedient to disband the troops ; which they accordingly voted with unanim- ity to be necessary for the safety of his majesty's person, and preservation of the peace of the gov- ernment, Nov. 25. — Id., 1049. James showed, in his speech to Parliament, Nov. 9, 1685, that he in- tended to keep on foot a standing army. — Id., 1371. But, though that House of Commons was very dif- ferently composed from those in his brother's reign, and voted as large a supply as the king required, they resolved that a bill be brought in to render the militia more useful; an oblique and timid hint of their disapprobation of a regular force, against which several members had spoken. I do not find that any one, even in debate, goes the length of denyuig that the king might, by his prerogative, maintain a regular army ; none, at least, of the resolutions in the Commons can be said to have that effect. * It is expressly against the Petition of Right to quarter troops on the citizens, or to inflict any punishment by martial law. No court-martial, in fact, can have any coercive jurisdiction except by statute, unless we should resort to the old tribunal of the constable and marshal : and that this was admitted, even in bad times, we may learn by an odd case in Sir Thomas Jones's Reports, 147 (Pasch. 33 Car. II., 1681). An action was brought for assault and false imprisonment. The defend- ant pleaded that he was lieutenant-governor of the Isle of Scilly, and that the plaintiff was a soldier belonging to the garrison; and that it was the an- cient custom of the castle, that if any soldier re- fused to render obedience, the governor might pun- ish him by imprisonment for a reasonable time ; which he had therefore done. The plaintiff de- murred, and had judgment in his favor. By demur- ring, he put it to the court to determine whether this plea, which is obviously fabncated in order to cover the want of any general right to maintain discipline in this manner, were valid in point of law ; which they decided, as it appears, in the negative. In the next reign, however, an attempt was made to punish deserters capitally, not by a court- martial, but on the authority of an ancient act of Parliament. Chief-justice Herbert is said to have resigned his place in the King's Bench rather than come into this. Wright succeeded hira ; and two deserters, having been convicted, were executed tinct assertion' in the Bill of Plights put a most essentia] restraint on the monarchy, and rendered it, in effect, forever impossible to employ any direct force or intimidation against the established laws and liberties of the people. A revolution so thoroughly remedial, and accom])lished with so little cost of ^ ' Disconlent private sun^ermg, so little of an- with the new gry punishment or oppression of the vanquished, ought to have been hailed with unbounded thankfulness and satisfac- tion. The nation's deliverer and chosen sovereign, in himself the most magnanimous and heroic character of that age, might have expected no return but admiration and grat- itude. Yet this was veiy far from being the case. In no period of time under the Stuarts were public discontent and opposi- tion of Parliament more prominent than in the reign of William III. ; and that high- souled prince enjoyed far less of his sub- jects' affection than Charles II. No part of our history, perhaps, is read, upon the whole, with less satisfaction, than these thirteen years during which he sat upon his elective throne. It will be sufficient for me to sketch generally the leading causes, and the errors both of the prince and people, which hindered the blessings of the Revolution from being duly appreciated by its cotemporaries. The votes of the two Houses, that James had abdicated, or in plainer words incompatibii- forfeited, his roj-al authority; ityfthe ■' / Revolutioa that the crown was vacant; that withreceiTcd one out of the regular line of sue- P"""?""- cession should be raised to it, were so un- tenable by any known law, so repugnant to the principles of the Established Church, that a nation accustomed to think upon mat- ters of government only as lawyers and churchmen dictated, could not easily rec- oncile them to its preconceived notions of lis causes. in Loudon. — Ralph, 961. I can not discover that there was any thing illegal in the proceeding, and therefore question a little whether this were really Herbert's motive. — See 3 Inst., 96. [I have since obsen^ed, in a passage which had escaped me, that the cause of Sir Edward Her- bert's resignation, which was, in fact, no resigna- tion, but only an exchange of places with Wriglit, chief-justice of the Common Pleas, was his objec- tion to the king's insisting on the execution of one of these deserters at Plymouth, the conviction hav- ing occurred at Reading. — State Trials, xii.. 262 from Hey wood's Vindication of Fox — 1845.] Will. III.] fhom HExav vir. to george ii. 55i duty. The first burst of resentment against the late king was mitigated bj" his fall ; com- passion, and even confidence, began to take the place of it ; his adherents — some deny- ing or extenuating the faults of his adminis- tration, others moi'e artfully representing them as capable of redress by legal meas- ures— having recovered from their conster- nation, took advantage of the necessary de- lay before the meeting of the Convention, and of the time consumed in its debates, to publish pamphlets and circulate rumors in his behalf.* Thus, at the moment when William and Maiy were proclaimed (though it seems highly probable that a majority of tlie kingdom sustained the bold votes of its representatives), there was yet a very pow- erful minority who believed the Constitu- tion to be most violently shaken, if not irre- trievably destroyed, and the rightful sover- eign to have been excluded by usurpation. The clergy were moved by pride and shame, by the just apprehension that their influence over the people would be impaired, by jeal- ousy or hatred of the Non-conformists, to deprecate so practical a confutation of the doctrines they liad preached, especially when an oath of allegiance to tlieir new sovereign came to be imposed ; and they had no alternative but to resign their bene- fices, or wound their reputations and con- Bciences by submission upon some casuistic- al pretext.f Eight bishops, including the * See several in the Soraers Tracts, vol. x. One of these, a Letter to a Member of tlie Con- vention, by Dr. Sherlock, is very ablj' written ; and puts all the consequences of a change of gov- ernment, as to popular dissatisfaction, &c., much as they turned out, though, of course, failing to show that a treaty with tlie king would be less open to objection. Sherlock declined for a time to take the oaths ; but, complying afterward, and writing in vindication, or at least excuse, of the Revolution, incun-ed the hostility of the Jacobites, and impaired his ovm reputation by so interested a want of consistency ; for he had been the most eminent champion of passive obedience. Even the distinction he found out, of the lawfuhiess of allegiance to a king de facto, was contrary to his former doctrine. [A pamphlet, entitled " A Second Letter to a Friend," in answer to the declaration of James II. in 1692 (Somers Tracts, x., 378), which goes wholly on Revolution principles, is attributed to Sherlock by Scott, who prints the title as if Sherlock's name were in it, probably following the former edition of the Somers Tracts. But I do not find it ascribed to Sherlock in the Biographia Bri- tannica, or in the list of bis writings in Watt's Bib- liotheca.— 1843.] t l W. & M., c. 8. primate and several of those who had been foremost in the defense of the Church dur- ing the late reign, with about four hundred clergy, some of them highly distinguished, chose the more honorable course of refusing the new oaths ; and thus began the schism of the non-jurors, more mischievous in its commencement than its continuance, and not so dangerous to tlie government of Will- iam III. and George I. as the false submis- sion of less sincere men.* * The necessity of excluding men so conscien- tious, and several of whom had very recently sus- tained so conspicuously the brunt of the battle against King James, was very painful ; and mo- tives of policy, as well as generosity, were not wanting in favor of some indulgence toward them. On the other hand, it was dangerous to admit such a reflection on the new settlement as would be cast by its enemies if the clergy, especially the bishops, should be excused from the Oath of Alle- giance. The House of Lords made an amendment in the act requiring this oath, dispensing with it in the case of ecclesiastical persons, unless they should be called upon by the privj'-couucil. This, it was thought, would funiish a security for their peaceable demeanor, without shocking the people and occasioning a dangerous schism. But the Commons resolutely opposed this amendment as an unfair distinction, and derogatoi-y to the king's title.— Pari. Hist., 218. Lords' Journals, 17th of April, 1689. The clergy, however, had six months more time allowed them, in order to take tlie oath, than the possessors of lay offices. Upon the whole, I think the reasons for depri- vation greatly preponderated. Public prayers for the king by name form part of our Liturgy ; and it was surely impossible to dispense with the clergy's reading them, which was as obnoxious as the Oath of Allegiance. Thus the beneficed priests must have been excluded; and it was hardly required to make an exception for the sake of a few bish- ops, even if difficulties of the same kind would not have occurred in the exercise of their jurisdiction, which hangs upon, and has a perpetual reference to, the supremacy of the crown. The king was empowered to reserve a third part of the value of their benefices to any twelve of the recusant clergy. — 1 W. & M., c. 8, s. 16. But this could only be done at the expense of their successors ; and the behavior of the non-jurors, who strained evei-y nerve in favor of the detlu-oned king, did not recommend them to the government. The deprived bishops, though many of them, through their late behavior, were deservedly es- teemed, can not be reckoned among the eminent characters of our Church for learning or capacity. Saucroft, the most distinguished of them, had not made any remarkable figure ; and none of the rest had any pretensions to literary credit. Those who filled their places were incomparably supe- rior. Among the non-juring clergy, a certain num- ber were considerable men ; but, upon the whole, the well-affected part of the Church, not only at 552 CONSTITUTIONAL HISTORY OF ENGLAND [Chap. XV. It seems undeniable that the strength of this Jacobite faction sprung from the want of apparent necessity for the change of gov- ernment. Extreme oppression produces an impetuous tide of resistance, which bears away the reasonings of the casuists. But the encroachments of .James II., being rath- er felt in prospect than much actual injury, left men in a calmer temper, and disposed to weigh somewhat nicely the nature of the proposed remedy. The Revolution was, or, at least, seemed to be, a case of political expediency; and expediency is always a matter of uncertain argument. In many respects it was far better conducted, more peaceably, more moderately, with less pas- sion and severity toward the guilty, with less mixture of democratic turbulence, with less innovation on the regular laws, than if it had been that extreme case of necessity which some are apt to require. But it was obtained on this account with less unanimity and heartfelt concurrence of the entire nation. The demeanor of William, always cold Character sometimes harsh, his foreign and errors of Origin (a sort of crime in English William. eyes) and foreign favorites, the natural and almost laudable prej udice against one who had risen by the misfortunes of a very near relation, conspired, with a desire of power not very judiciously displayed by him, to keep alive this disaffection ; and the opposite party, regardless of all the decen- cies of political lying, took care to aggravate it by the vilest calumnies against one who, though not exempt from errors, must be accounted the greatest man of his own age. It is certain that his government was in very considerable danger for three or four years after the Revolution, and even to the peace of Ryswick. The change appeared so mai-velous, and contraiy to the bent of men's expectation, that it could not be per- manent. Hence he was suiTOunded by the timid and the ti-eacherous ; by those who meant to have merits to plead after a res- toration, and those who meant, at least, to be secure. A new and revolutionary gov- ernment is seldom fairly dealt with. Man- the Revolution, but fifty years afterward, con- tained by far its most useful and able members. Yet the effect of this expulsion was highly unfa- vorable to the new government ; and it required all the influence of a latitudinarian school of divinity, led by Locke, which was very strong among the laity under William, to counteract it. kind, accustomed to forgive almost every thing in favor of legitimate prescriptive pow- er, exact an ideal faultlessness from that which claims allegiance on the score of its utility. The personal failings of its rulers, the negligences of their administration, even the inevitable privations and difficulties which the nature of human affairs or the misconduct of their predecessors create, are imputed to them with invidious minuteness. Those who deem their own merit unre- warded, become always a numerous and implacable class of adversaries; those whose schemes of public improvement have not been followed, think nothing gained by the change, and return to a restless censorious- ness in which they have been accustomed to place delight. With all these it W£i8 natural that William should have to con- tend ; but we can not, in justice, impute all the unpopularity of his administration to the disaffection of one party, or the fickle- ness and ingratitude of another. It arose, in no slight degree, from errors of his own. The king had been raised to the throne by the vigor and zeal of the Whigs ; jeaioosy of but the opposite party were so theWhigs. nearly upon an equality in both Houses that it would have been difficult to frame bis government on an exclusive basis. It would also have been highly impolitic, and, with respect to some few persons, ungrateful, to put a slight upon those who had an unde- niable majority in the most powerful class- es. William acted, therefore, on a wise and liberal principle, in bestowing offices of trust on Lord Danby, so meritorious in the Revolution, and on Lord Nottingham, whose probity was unimpeached ; while he gave the Whigs, as was due, a decided prepond- erance in his council. Many of them, how- ever, with that indisci'iminating acrimony which belongs to all factions, could not en- dure the elevation of men who had com- plied with the court too long, and seemed by their tardy opposition* to be rather the patriots of the Church than of civil liberty. They remembered that Danby had been impeached as a coiTupt and dangerous min- ister; that Halifax had been involved, at least by holding a confidential office at the time, in the last and worst part of Charles's reign. They saw Godolphin, who had con- curred in the commitment of the bishops, * Burnet. Ralph, 174, 1'9- Will. HI ] FROM HENRY VII. TO GEORGE JJ. 553 and every other measure of the lute king, still in the ti'easury ; and, though they could not reproach Nottingham with any miscon- duct, were shocked that his conspicuous op- position to the new settlement should be re- warded with the post of secretiuy of state. The mismanagement of affairs in Ireland during 1689, which was very glaring, fur- nished specious grounds for suspicion that the king was betrayed.* It is probable that he was so, though not, at that time, by the chiefs of his ministry. This was the begin- ning of that dissatisfaction with the govern- ment of William, on the part of those who had the most zeal for his throne, which eventually became far more harassing than the conspiracies of his real enemies. Hal- ifax gave way to the prejudices of the Commons, and retired from power. These prejudices were no doubt unjust, as they re- spected a man so sound in principle, though not uniform in conduct, and who had with- stood the arbitrary maxims of Charles and .Tames in that cabinet, of which he unfor- tunately continued too long a member. But his fall is a warning to English statesmen, that they will be deemed responsible to their countiy for measures which they countenance by remaining in office, though they may resist them in council. The same honest warmth which impell- Bill of In- ed the Whigs to murmur at the demnity. employment of men sullied by their compliance with the court, made them un- willing to concur in the king's desire of a total amnesty. They retained the Bill of Indemnity in the Commons ; and excepting some by name, and many more by general clauses, gave their adversaries a pretext for alarming all those whose conduct had not been irreproachable. Clemency is, indeed, * The Parliamentary debates are full of com- plaints as to the mismanagement of all things in Ireland. These might be thought hasty or fac- tions ; but Marshal Schomberg's letters to the king yield them sti-ong confirmation. — Dalrymple, Ap- pendix, 26, &c. William's resolution to take the Ii-ish war on himself saved not only that country, but England. Our own Constitution was won on the Boyne. The star of the house of Stuart grew pale forever on that illustrious day, when James displayed again the pusillanimity which had cost him his English crown. Yet the best friends of William dissuaded him from going into Ireland, so imminent did the peril appear at home.— Dal- rymple, Id., 97. " Things," says Burnet, " were in a vei-y ill disposition toward a fatal turn." K K for the most part, the wisest, as well as the most generous policy ; yet it might seem dangerous to pass over with unlimited for- giveness that servile obedience to arbitrary power, especially in the judges, which, as it springs from a base motive, is best con- trolled by tlie fear of punishment. But some of the late king's instruments had fled with him, others were lost and ruined ; it was better to follow the precedent set at the Restoration, than to give them a chance of regaining public sympathy by a prosecu- tion out of the regular course of law.* la one instance, the expulsion of Sir Robert Sawyer from the House, the majority dis- played a just resentment against one of the most devoted adherents of the prerogative, so long as civil liberty alone was in danger. Sawyer had been latterly veiy conspicuous in defense of the Church ; and it was ex- pedient to let the nation see that the days of Charles 11. were not entirely forgotten. f * See the debates on this subject in the Parlia- mentary History, which is a transcript from An- chitel Grey. The Whigs, or, at least, some hot- headed men among them, were certainly too much actuated by a vindictive spirit, and consumed too much time on this necessary bill. t The prominent instance of Sawyer's delin- quency, which caused his expulsion, was his refu- sal of a writ of error to Sir Thomas Armstrong. — Pari. Hist, 516. It was notorious that Armstrong suffered by a legal murder ; and an attorney-gen- eral in such a case could not be reckoned as free from personal responsibility as an ordinary advo- cate who maiutains a cause for his fee. The first resolution had been to give reparation out of the estates of the judges and prosecutors to Arm- strong's family, which was, perhaps rightly, aban- doned. The House of Lords, who, having a power to examine upon oath, are supposed to sift the truth in such inquiries better than the Commons, were not remiss in endeavoring to bring the instruments of Stuart tyranny to justice. Besides the commit- tee appointed on the very second day of the Con- vention, 23d of .Tan., 1689, to investigate the sup- posed circumstances of suspicion as to the death of Lord Esses (a committee renewed afterward, and fonned of persons by no means likely to have abandoned any path that might lead to the detec- tion of guilt in the late king), another was appoint- ed in the second session of the same Parliament (Lords' Journals, 2d of Nov., 1689), " to consider who were the advisers and prosecutors of the viurders of Lord Russell, Col. Sidney, Armstrong, Cornish, &c., and who were the advisers of issu- ing out writs of qno warrautos against coi-pora- tions, and who were their regulators, and also who were the public assertors of the dispensing power." The examinations taken before this com- mittee are printed in the Lords' Journals, 20th of 554 CONSTITUTIONAL HISTORY OF ENGLAND [Chap. XV. Nothing was concluded as to the Indemnity j in this Parliament; but in the next, William took the matter into his own hands by send- ing down an act of graoe. I can scarcely venture, at this distance „.„ , from the scene, to pronounce an Bill for re- ' storing cor- opinion as to the clause intro- porations. ^^^^^^j \Vh\gs into a bill for restoring corporations, which excluded for the space of seven years all who had acted or even concurred in surrendering charters from municipal offices of trust. This was, no doubt, intended to maintain their own superiority by keeping the Church or Toiy faction out of corporations ; it evi- dently was not calculated to assuage the prevailing animosities. But, on the other hand, the cowardly submissiveness of the others to the quo warrantos seemed at least to deserve this censure ; and the measure could by no means be put on a level in point of rigor with the corporation act of Charles II. As the Dissenters, unquestioned friends of the Revolution, had been universally ex- cluded by that statute, and the Tories had lately been sti-ong enough to prevent their readmission, it was not unfair for the oppo- site party, or, rather, for the government, to provide some security against men who, in spite of their oaths of allegiance, were not likely to have thoroughly abjured their former principles. This clause, which mod- ern historians generally condemn as op- pressive, had the strong support of Mr. Somers, then solicitor-general. It was. Dec, 1689 ; and there certainly does not appear any want of zeal to convict the guilty. But nei- ther the law nor the proofs would serve them. They could estahlish nothing against Dudley North, the Tory sheriiiF of 1683, except that lie had named Lord Russell's panel himself; which, though irregular, and doubtless ill-designed^ had unluckily a precedent in the conduct of the famous Whig sheriff, SUngsby Bethel ; a man who, like North, though on the opposite side, cared more for his party than for decency and justice. Lord Halifax was a good deal hurt in character by this report, and never made a considerable figure after- ward.— Burnet, 34. , His mortification led him to engage in an intrigue with the late king, which was discovered; yet I suspect that, with his usual versatility, he again abandoned that cause before his death.— Ralph, 467. The Act of Grace (2 W. & M., c. 10) contained a small number of excep- tions, too many, indeed, for its name ; but proba- bly there would have been difficulty in prevailing on the Houses to pass it generally ; and no one was ever molested afterward on account of his conduct before the Revolution. however, lost 'through the court's conjunc- tion with the Tories in the Lower House, and the bill itself fell to the ground in the Upper ; so that those who had come into corporations by very ill means retained their power, to the great disadvantage of the lievoliition party, as the next elections made appear.* But if the Whigs behaved in these instan- ces with too much of that passion which, though offensive and injurious in its excess, is yet almost inseparable from pati-iotism and incorrupt sentiments in so numerous an as- sembly as the House of Commons, they amply redeemed their glory by what cost them the new king's favor, their wise and admirable settlement of the revenue. The first Parliament of Charles II. had fixed on ^£1,200, 000 as the ordi- . ... Settlement nary revenue of the crown, sufli- of the reve- cient in times of no peculiar exi- gency for the support of its dignity and for the public defense. For this they provided various resources ; the hereditaiy excise on liquors granted in lieu of the king's feudal rights, other excise and custom duties grant- ed for his life, the post-office, the crown lands, the tax called hearth-money, or t^vo shillings for every house, and some of small- er consequence. These, in the beginning of that reign, fell short of the estimate ; but before its termination, by the improvement of trade and stricter management of the customs, they certainly exceeded that sum \j for the revenue of .James from these sources, on an average of the few years of his reign, amounted to ^£1,500,964; to which some- thing more than c£400,000 is to be added for the produce of duties imposed for eight years by his Parliament of 1685. J William appears to have entertained no doubt that this gi-eat revenue, as well as all the power and prerogative of the crown, be- came vested in himself as King of England, * Pari. Hist., 508, et post. Journals, 2d and 10th of Jan., 1689, 1690. Burnet's account is confused and inaccurate, as is very commonly the case : he trusted, I believe, almost entirely to his memorj-. Ralph and Somerville are scarce ever candid to- ward the Whigs in this reign. t [Ralph puts the annual revenue about 1675 at £1,358,000 ; but with an anticipation, that is, debt upon it to the amount of £866,954. The expense of the army, navy, ordnance, and the foitress of Tangier, was under £700,000. The rest went tc the civil list, &c.— Hist, of England, i., 290.— 1845.] t Pari Hist., 150. Will. III.] FROM HEXllY VII. TO GEORGE II. 555 01- at least ought to be instantly settled bj' I Parliament according to the usual method.* There could, indeed, be no pretense for dis- puting his right to the hereditary excise, though this seems to have been questioned in debate ; but the Commons soon displayed a considerable reluctatice to grant the tem- porary revenue for the king's life. This had been done for several centuries in the first Parliament of every reign. But the accounts, for which they called on this oc- casion, exhibited so considerable an increase of the receipts on one hand, so alarming a disposition of the expenditure on the other, that they deemed it expedient to restrain a liberality, which was not only likely to go beyond their intention, but to place them, at least in future times, too much within the power of the crown. f Its average ex- penses appeared to have been c£l,700,000. Of this, =£160,000 was the charge of the late king's ai'uiy, and d£83,493 of the ordnance. Nearly ^£90,000 was set under the suspi- cious head of secret service, imprested to Mr. Guy, secretary of the ti'easury.t Thus, it was evident that, far from sinking below the proper level, as had been the general complaint of the court in the Stuart reigns, the revenue was gi'eatly and dangerously above it ; and its excess might either be con- sumed in unnecessaiy luxury, or diverted to the worse purposes of despotism and cor- ruption. They had, indeed, just declared a standing army to be illegal ; but there could be no such security for the observ- ance of this declaration as the want of means in the crown to maintain one. Their ex- perience of the interminable contention about "Burnet, 13. Ralph, 138, 194. Some of the law- yers endeavored to persuade the House that the revenue, havinc; been granted to James foi-his life, devolved to William dviring the natural life of the former ; a technical subtlety, against the spirit of the grant. Somers seems not to have come into tliis ; but it is hard to collect the sense of speeches from Grey's memoranda. — Pari. Hist., 139. It is not to be understood that the Tories universally were in favor of a grant for life, and the Whigs against it ; but as the latter were the majority, it was in their power, speaking of them as a partj-, to have carried the measure. t [Davenant, whom I quote at present from Harris's Life of Charles II., p. 378, computes the hereditary excise on beer alone to have amounted, in 1689, to £694,496. So extraordinarily good a bargain had the crown made for giving up the re- liefs and wardships of mihtary tenure.] t Pari. Hist., 187. supply, which had been fought with various success between the kings of England and their Parliaments for some hundred j'ears, dictated a course to which they wisely and steadily adhered, and to which, perhaps, above all other changes at this Kevolution, the augmented authority of the House of Commons must be ascribed. They began by voting that c£l, 200,000 should be the annual revenue of the . Appropri- crown in time of peace ; and that ation of one half of this should be appropri- ^"I'l''''^' ated to the maintenance of the king's gov- ernment and royal family, or what is now called the civil list, the other to the public defense and contingent expenditure.* The breaking out of an eight years' war rendered it impossible to carry into effect these reso- lutions as to the peace establishment; but they did not lose sight of their principle, that the king's regular and domestic expens- es should bo determined by a fixed annual sum, distinct from the other departments of public service. They speedily improved upon their original scheme of a definite rev- enue, by taking a more close and constant superintendence of these departments, the navy, army, and ordnance. Estimates of the probable expenditure were regularly laid before them, and the supply granted was strictly appropriated to each particular serv- ice. This great and fundamental principle, as it has long been justly considei'ed, that the money voted by Parliament is appropriated, and can only be applied, to certain specified heads of expenditure, was introduced, as I have before mentioned, in the reign of Charles II., and generally, though not in every instance, adopted by his Parliament. The unworthy House of Commons that sat in 1685, not content with a needless aug- mentation of the revenue, took credit with the king for not having appropriated their supplies ;f but from the Revolution it has been the invariable usage. The lords of the treasury, by a clause annually repeated in the appropriation net of every session, are forbidden, under severe penalties, to order by their warrant any monej-s in the Excheq- uer, so appropriated, from being issued for any other service, and the officers of the Ex- chequer to obey any such warrant. This has given the House of Commons so efiectual a * Pari. Hist., 193. t Id., iv., 1359. 556 CONSTITUTIONAL HISTORY OF ENGLAND [Chap XV. control over the executive power, or, more ti'uly speaking, lias rendered it so much a participator in that power, that no adminis- tration can possibly subsist without its con- currence ; nor can the session of Parliament be intermitted for an entire year, without leaving both the naval and military force of the kingdom unprovided for. In time of war, or in circumstances that may induce war, it has not been very uncommon to de- viate a little fi-om the rule of appropriation, by a grant of considerable sums on a vote of credit, which the crown is thus enabled to apply at its discretion during the recess of Parliament ; and we have had, also, too frequent experience, that the charges of public sen ice have not been brought within the limits of the last year's appropriation. But the general principle has not, perhaps, been often trausgi-essed without sufficient reason ; and a House of Commons would be deeply responsible to the country, if through supine confidence it should abandon that high privilege which has made it the arbiter of court factions, and the regulator of foreign connections. It is to this trans- ference of the executive government (for the phrase is hardly too strong) from the crown to the two houses of Parliament, and espe- cially the Commons, that we owe the proud attitude which England has maintained since the Revolution, so exti-aordinarily dissimilar, in the eyes of Europe, to her condition un- der the .Stuarts. The supplies meted out with niggardly caution by former Parlia- ments to sovereigns whom they could not trust, have flowed with redundant profuse- ness when they could judge of their neces- sity and dii-ect their application. Doubtless the demand has always been fixed by the ministers of the crown, and its influence has retrieved, in some degree, the loss of au- thority ; but it is still true that uo small por- tion of the executive power, according to the established laws and customs of our gov- ernment, has passed into the hands of that body, which prescribes the application of the revenue, as well as investigates at its pleasure every act of the administration.* The Convention ParDament continued the revenue, as it already stood, until De- cember, 1690. f Their successors complied * Hatsell s Precedents, iii., 30. et alibL Har- grave's Juridical Arguments, i., 39-!. t 1 W. k M., sess. 2, c. 2. This was intended so far with the king's expecta- „ tion as to grant the excise duties, tiooofthe besides those that were heredi- tary, for the lives of William and Mary, and that of the survivor.* The customs they only continued for four years. They provided extraordinary supplies for the con- duct of the war on a scale of armament, and consequently of expenditure, unparalleled in the annals of England. But the hesitation, and. as the king imagined, the distrust they had shown in settling the ordinary revenue, sunk deep into his mind, and chiefly alien- ated him from the \\'hig9, who were stron- ger and more conspicuous than their adver- saries in the two sessions of 1689. If we believe Burnet, he felt so indignantly what appeared a systematic endeavor to reduce his power below the ancient standard of the monarchy, that he was inclined to aban- don the government, and leave the nation to itself. He knew well, as he told the bishop, what was to be alleged for the two forms of government, a monarchy and a commonwealth, and wouU not determine which was preferable ; but of all forms he thought the worst was that of a monarchy without the necessary powers, f The desire of rule in William III. was as magnanimous and pubUc-spirited as ambi- tion can ever be in a human bosom. It was the consciousness not only of having devot ed himself to a gi eat cause, the security of Europe, and especially of Great Britain and Holland, against unceasing aggression, but of resources in his own firmness and sagac- ity which no other person possessed. A commanding force, a copious revenue, a supreme authority in councils, were not as a provisional act " for the preventing aU disputes and questions concemin? the collecting, levying, and assuring the public revenue due and payable in the reigns of the late kings Charles II. and James II., while the belter settling the same ia under the consideration of the present Parhament. * 2 \V. i M., c. 3. As a mark of respect, no doubt, to the king and queen, it was provided that, if both should die, the successor should only enjoy 1 this revenue of excise till December, 1693. In the 1 debate on this subject in the new Parliament, the ' Tories, except Seymour, were for settling the rev- ; enue during the king's life ; but many Whigs spoke on the other side. — Pari Hist., 552. The latter just- ly urged that the amount of the revenue ought to be I well known before they proceed to settle it for an ' indeiinite time. The Tories, at that time, had great hopes of the king's favor, and took this method of ! securing it. t Bomet, 35. Will. III.] FROM HENRY VII. TO GEORGE II. 557 souglit, as by the crowd of kings, for the en- joyment of selfish vanity and covetoiisiiess, but as the oidy sure instruments of success in his high calHng, in the race of heroic en- terprise whicli Providence hiid apjiointed for the elect champion of civil and religious liberty. We can hardly wonder that ho should not quite render justice to the mo- tives of those who seemed to impede his strenuous energies ; that ho should resent as ingi-atitude those precautions against abuse of power by him, tlie recent deliver- er of the nation, which it had never called for against those who had sought to en- slave it. But, reasonable as this apology may be, it was still an uidiappy error of William that he did not sufficiently weigh the cir- cumstances which had elevated him to the English throne, and the alteration they had inevitably made in the relations between the crown and tlio Parliament. Chosen upon the popular principle of general freedom and public good, on the ruins of an ancient he- reditary throne, he could expect to reign ou no other terms than as the chief of a com- monwealth, with no other authority than the sense of the nation and of Parliament deemed congenial to the now Constitution. The debt of gratitude to him was indeed immense, and not sufficiently remembered ; but it was due for having enal)lpd the nation to regenerate itself, and to ])lace barriers against future assaults, to provide securities against future inisgovernment. No one could seriously assert that .lames II. was the only sovereign of whom there had been cause to complain. In almost every reign, on the contrary, which our histoiy records, the innate love of arbiti-ary power had pro- duced more or less of oppression. The Revolution was chiefly beneficial, as it gave a stronger impulse to the desire of political liberty, and rendered it more extensively attainable. It vvfas cei-tainly not for the sake of replacing .lames by William with equal powers of doing injury, that the purest and wisest patriots engaged in that cause ; but as the sole means of making a royal govern- ment pemianently compatii)le with freedom and justice. The Bill of Rights had pre- tended to do nothing more than stigmatize some recent proceedings : were the repre- sentatives of the nation to stop short of other measures, because they seemed nov- el, and restrictive of the crown's authority, when for the want of them the crown's authority had nearly freed itself fi'oin all re- striction ? Such was their true motive for limiting the revenue, and such the ample justification of those important statutes en- acted in the course of this reign, which the king, unfortunately for liis reputation and peace of mind, too jealously resisted. It is by no means unusual to find mention of a Commonwealth or Republi- _ ... . ' No Uep\ibli- can party, as ii it existed in some can party in force at the time of the Revolu- tion, and tliroughout the reign of William III. ; nay, some writers, such as Hume, Dalryniple, and Somerville, have, by putting them in a sort of balance against the Jaco- bites, as the extremes of the Whig and Tory factions, endeavored to persuade us that the one was as substantial and united a body as the other. It may, however, be confident- ly asserted, that no Republican party had any existence, if by that word we are to un- derstand a set of men whoso object was the abolition of our limited monarchj-. There might unquestionably be persons, especially among the Independent sect, who cherished the menioiy of what they called the good old cause, and thought civil liberty iriecon- cilablo with any form of roguhir govern- ment ; but these were too inconsiderable, and too far removed from political influence, to deserve the appellation of a j)arty. I be- lieve it would be difficult to name five in- dividuals to whom even a speculative prefer- ence of a commonwealth may with proba- bility be, ascribed. Were it otherwise, the numerous pamphlets of this period would bear witness to their activity ; yet, with the exception, perhaps, of one or two, and those rather equivocal, we should search, I sus- pect, the collections of that time in vain for any manifestations of a Republican spirit. If, indeed, an ardent zeal to see the prerog- ative eflfectually restrained, to vindicate that high authority of the House of Commons over the executive administration which it has in fact claimed and exercised, to purify the House itself from corru|)t influence, if a tendency to dwell upon the poi)ular origin of civil society, and the principles which Locke, above other writers, had brought again into fashion, bo called Republican (as in a primary but less usual sense of the word they may), no one can deny that this 558 CONSTITUTIONAL HISTORY OF ENGLAND [Chap. XV. spirit eminently characterized the age of William III. ; and schemes of reformation emanating from this source were sometimes offered to the world, trenching more, per- haps, on the established Constitution than either necessity demanded or prudence war- ranted. But these were anonymous and of little influence ; nor did they ever extend to the absolute subversion of the throne.* William, however, was very early led to „,.,,. imagine, whether through the in- Wuliam em- " ' o ploys Tories sinuations of Lord Nottingham, m ministry. Burnet pretends, or the natu- ral prejudice of kings against those who do not comply with them, that there not only existed a Republican party, but that it num- bered many supporters among the principal Whigs. He dissolved the Convention Par- liament, and gave his confidence for some time to the opposite faction ;t but among * See the Soraers Tracts, but still more the col- lection of State Tracts in the time of William III., in three volumes folio. These are almost entirely on the Whig side ; and many of them, as I have intimated in the text, lean so far toward Republi- canism as to assert the original sovereignty of the people in very strong terras, and to propose various changes in the Constitution, such as a greater equality in the representation. But I have not observed any one which recommends, even covert- ly, the abolition of hereditary monarchy. [It may even be suspected, that some of these were really intended for the benefit of James. See one in Somers Tracts, x., 148, entitled, " Good Advice be- fore it be too late, being a Breviate for the Con- vention." The tone is apparently Republican ; yet we find the advice to be no more than impos- ing great restrictions on the king during his life, but not to prejudice a Protestant successor ; in other words, the limitation scheme, proposed by Hahfax in 1679. It may here be observed, that the political tracts of this reign, on both sides, dis- play a great deal of close and vigorous reasoning, and may well bear comparison with those of much latei- periods. — 1845.] t Tiie sudden dissolution of this Parliament cost him the hearts of those who had made him king. Besides several temporary writings, especially the Impartial Inquiry of the Earl of Warrington, an honest and intrepid Whig (Ralph, ii., 186), we have a letter from Mr. Wharton (afterward Marquis of Wharton) to the king, in Dalrymple, Appendix, p. 80, on the change in his councils at this time, writ- ten in a strain of bold and bitter expostulation, es- pecially on the score of his employing those who had been the servants of the late family, alluding probably to Godolphin, who was, indeed, open to much exception. "I wish," says Lord Shrews- bury, in the same year, "you could have estab- lished your party upon the moderate ami honest- principled men of both factions ; but, as there be a these, a real disaffection to his government prevailed so widely that he could with diffi- culty select men sincerely attached to it. The majority professed only to pay al- legiance as to a sovereign de facto, and violently opposed the Bill of Recognition in 1690, both on account of the words " right- ful and lawful king" which it applied to William, and of its declaring the laws pass- ed in the last Parliament to have been good and valid.* They had influence enough with the king to defeat a bill proposed by the Whigs, by which an oath of abjuration of James's right was to be taken by all per- necessity of declaring, I shall make no difficulty to own my sense that your majesty and the govern- ment are much more safe depending upon the Whigs, whose designs, if any against, are improb- able and remoter, than with the Tories, wlio many of them, questionless, would bring in King James ; and the very best of them, I doubt, have a regency still in their heads ; for though I agree them to be the properest instruments to carry the prerogative high, yet I fear they have so unreasonable a veu- eration for monarchy as not altogether to approve the foundation yours is built upon." — Shrewsbury CoiTespond., 15. * Pail. Hist., 575. Ralph, 1S4. Burnet, 41. Two remarkable protests were entered on the Journals of the Lords on occasion of this bill : one by the Whigs, who were outnumbered on a particular di- vision, and another by the Tories on the passing of the bill. They are both vehemently expressed, and are among the not very numerous instances wherein the original Whig and Tory principles have been opposed to each other. The Tory pro- test was expunged by order of the House. It Is signed by eleven peers and six bishops, among whom were StiUingfleet and Lloyd. The Whig protest has but ten siguatui-es. The Convention had already passed an act for preventing doubts concerning their own authority, 1 W. & M., stat. I, c. 1, which could, of course, have no more valid- ity than they were able to give it. Tliis bill bad been much opposed by the Tories. — Pari. Hist., v., 122. In order to make this clearer, it should be ob- served that the Convention which restored Charles II. , not having been summoned by his writ, was not reckoned by some Royalist lawj-ers capable of passing valid acts, and consequently all the stat- utes enacted by it were confirmed by the authority of the next. Clarendon lays it down as undeniable that such confirmarion was necessary. Neverthe- less, this objection having been made in the Court of King's Bench to one of their acts, the judges would not admit it to be disputed ; and said that the act being made by king, Lords, and Commons, they ought not now to pry into any defects of the circumstances of calling them together, neither would they suffer a point to be stirred wherein the estates of so many were concerned. — Heath v. Pryn, 1 Ventris, 15 Will. III.] FROM HENRY VII. TO GEORGE II. 559 sons in trust.* It is by no means certain that even those who abstained from all con- nection with James after his loss of the throne, would have made a strenuoiis re- sistance in case of his landing to recover it.f , . But we know that a large propor- Intrigues . , m • i with tho tion of the Tories were engaged latekiiiff. ^ confederacy to support him. Almost every peer, in fact, of any consider- ation, among that party, with the excep- tion of Lord Nottingham, is implicated by the secret documents which Macpherson and Dalrymple have brought to light ; espe- cially Godolphin, Carmarthen (Danby), and Marlborough, the second at that time prime minister of William (as he might justly be called), the last with circumstances of extra- ordinary and abandoned treacheiy toward his country as well as his allegiance. t Two * Great indulgence was shown to the assertors of indefeasible right. The Lords resolved that there siiould be no penalty in the bill to disable any person from sitting and voting in either house of Parliament.— Journals, May 5, 1690. The bill was rejected in the Commons by 192 to 178. — Journ., April 26. Pari. Hist, .594. Burnet, 41, ibid. t Some English subjects took James's commis- sion, and fitted out privateers, which attacked our ships. They were taken, and it was resolved to try them as pirates ; when Dr. Oldys, the king's ad- vocate, had the assurance to object that this could not be done, as if James had still the prerogatives of a sovereign prince by the law of nations. He was of course turned out, and the men hanged ; but this is one instance among many of the difficulty tinder which the govemment labored through the unfortunate distinction oi friclo and jjirc. — Ralph, 423. The boards of customs and excise were filled by Godolphin with Jacobites. — Shrews. Coiresp., .51. t The name of Carmarthen is pei-petually men- tioned among those whom the late king reckoned his friends. — Macpherson's Papers, i., 457, &c. Yet this conduct was so evidently against his interest that we may perhaps believe him insincere. Will- iam was certainly well aware that an extensive conspiracy had been fonned against his throne. It was of gi'eat importance to learn the persons in- volved in it and their schemes. May we not pre- sume tliat Lord Carmarthen's return to his ancient allegiance was feigned, in order to get an insight into the secrets of that party ? This has already been conjectured by Somerville (p. 395) of Lord Sunderland (who is also implicated by Macpherson's publication), and doubtless witli higher probability ; for Sunderland, always a favorite of William, could not, without insanity, have plotted the restoration of a prince he was supposed to have betrayed. It is evident that William was perfectly master of the cabals of St. Germain's. That little court knew it was betrayed ; and the suspicion fell on Lord Godolphin. — Dalrymple, 189. But I think Sunder- land and Carmarthen more likely. of the most distinguished Whigs (and if the imputation is not fully substantiated against I should be inclined to suspect that by some of this double treachery the secret of Princess Anne's repentant letter to her father reached William's ears. She had come readily, or at least without opposition, into that part of the settlement which postponed her succession, after the death of Mary, for the remainder of the khig's life. It would, in- deed, have been absurd to expect that William was to descend from his throne in her favor; and her opposition could not have been of much avail. But when tlie civil list and revenue came to be settled, the Tories made a violent effort to secure an income of £70,000 a year to her and her hus- band.— Pari. Hist., 492. As this, on one hand, seemed beyond all fair proportion to the income of the crown, so the Whigs were hardly less unreas- onable in contending that she should depend alto- gether on the king's generosity, especially as by letters patent in tlie late reign, which they affect- ed to call in question, she had a revenue of about £30,000. In the end, the House resolved to ad- dress the king, that he would make the princess's income £30,000 in the whole. This, however, left an iiTeconcilable enmity, which the artifices of Marlborough and his wife were employed to ag- gravate. They were accustomed, in the younger sister's little court, to speak of the queen with se- verity, and of the king with nidc and odious epi- thets. Marlborough, however, went much further. He brought that narrow and foolish woman into his own dark intrigues with St. Gennain's. She wrote to her father, whom she had grossly, and almost openly, charged with imposing a spurious child as Prince of Wales, supplicating his forgiveness, and professing repentance for the part she had taken. — Life of James, 476. Macpherson's Papers, i., 241. If this letter, as can not seem improbable, be- came known to William, we shall have a more satisfactory explanation of the queen's invincible resentment toward her sister than can be found in any other part of their history. Mary refused to see the princess on her death-bed, which shows more bitterness than suited her mild and religious temper, if we look only to their public sciuabbles about the Cluirchills as its motive. — Burnet, 90. Conduct of Duchess of Marlborough, 41. But the queen must have deeply felt the unhappy, though necessary state of enmity in which slie was placed toward her father. She had borne a part in a great and glorious enterprise, obedient to a woman's highest duty, and had admirably performed those of the station to which she was called, but still with some violation of natural sentiments, and some liability to the reproach of those who do not fairly estimate the circumstances of lier situation : Infeli.x! utcunque ferant ea lact.a minores. Her sister, who had voluntai-ily trod the same path, who had misled her into a belief of her brother's illegitimacy, had now, from no real sense of duty, but out of pique and weak compliance with cun- ning favorites, solicited, in a clandestine manner, the late king's pardon, while his malediction re- sounded in the ears of the queen. This feebleness 560 CONSTITUTIONAL HISTORY OF ENGLAND [Chap. XV. others* by name, we know generally that many were liable to it) foi feited a high name and duplicity made a sisterly friendship impos- Bible. As for Lord Marlborough, he was among the first, if we except some Scots renegades, who abau- I doned the cause of the Revolution. He had so signally broken the ties of personal gratitude in his desertion of the king on that occasion, that, ac- cording to the severe remark of Hume, his conduct required forever afterward the most upright, the most disinterested, and most public-spirited be- havior to render it justifiable. \\'hat, then, must we think of it. if we find in the whole of this great man's political life nothing but ambition and ra- pacity in his motives, nothing but treacherj- and intrigue in his means ! He betrayed and aban- doned James, because he could not rise in his fa- vor without a sacrifice that he did not care to make ; he abandoned William and betrayed Eng- land, because some obstacles stood yet in tlie way of his ambition. I do not mean only, when I say that he betrayed England, that he was ready to la3' her independence and libertj' at the feet of James II. and Louis XIV. ; but that in one mem- orable instance he communicated to the court of St. Gemiaiu's, and through that to the court of Ver- sailles, the secret of an expedition against Brest, which failed in consequence, with the loss of the commander and eight hundred men. — Dalrymple. iii., 13. Life of James, 522. Macpliersou, i., 487. In short, his whole life was such a picture of mean- ness and treacherj', that one must rate militaiy services vei^y high indeed to preserve any esteem for his memory. The private memoirs of James II., as well as the papers published by Macpherson, show us how lit- tle treason, and especially a double treason, is thanked or trasted by those whom it pretends to serve. We see that neither Churchill nor Russell obtained any confidence from the banished king. Their motives were always suspected ; and some- thing more solid than professions of loj-alty was demanded, though at the expense of their own credit. James could not forgive Russell for saj-ing that, if the French fleet came out, he must fight.— Macpherson, i., 242. If Providence in its wrath had visited this island once more with a Stuart restoration, we may be sure that these perfidious apostates would have been no gainers by the change. * During William's absence in Ii-eland in 1690, Bome of the Whigs conducted themselves in a man- ner to raise suspicions of their fidelity, as appears by those most interesting letters of Marj-, published by Dalrj mple, which display her entire and devot- ed aff'ection to a husband of cold and sometimes harsh manners, hut capable of deep and powerful attachment, of which she was the chief object. 1 have heard that a late proprietor of these royal letters was offended by their publication, and that the black box of King William that contained them has disappeared from Kensington. The names of the Duke of Bolton, his son the Marquis of \Vin- chester, the Earl of Monmouth, Lord Montague. among their r otemporaries, in the eyes of a posterity which has known them better ; the Earl of Shrewsbuiy, from that strange feebleness of soul which hung like a spell upon his nobler qualities, and Admiral Rus- sell, from insolent pride and sullenness of temper. Both these were engaged in the vile intrigues of a faction they abhorred ; but Shrewsbury soon learned again to re- vere the sovereign he had contiibuted to raise, and withdrew from the contamination of Jacobitism. It does not appear that he betrayed that trust which William is said with extraordinary magnanimity to have re- posed on him, after a full knowledge of his connection with the court of St. Germain.* But Russell, though compelled to win the battle of La Hogue against his will, took care to render his splendid victory as little advantageous as possible. The credulity and almost willful blindness of faction is strongly manifested iq the conduct of the and Major Wildman, occur as objects of the queen's or her minister's suspicion. — Dalrymple, Appendix, 107, 4cc. But Cannarthen was desirous to throw odium on the Whigs ; and none of these noblemen, except on one occasion Lord Winchester, appear to be mentioned in the Stnart Papers. Even Mon- mouth, whose want both of principle and sound sense might cause reasonable distrust, and who lay at different times of bis life under this suspicion of a Jacobite intrigue, is never mentioned in Mac- pherson, or any other book of authoritj", within my recollection. Yet it is evident generally that there was a disaffected party among the Whigs, or, as in the Stuart Papers they were called Republicans, who entertained the baseless project of restoring James upon terms. These were chiefly what were called compounders, to distinguish them from the thorough-paced Royalists, or old Tories. One per- son whom we should least suspect is occasionally spoken of as inclined to a king whom he had been ever conspicuous in opposing — the Earl of Devon- shire ; but the Stnart agents often wrote according to their wishes rather than their knowledge, and it seems hard to believe what is not rendered proba- ble by any part of his public conduct. * This fact apparently rests on good authority- ; it is repeatedly mentioned in the Stuart Papers, and in the Life of James. Yet Shrewsbury's let- ter to William, after Fenwick's accusation of him, seems hardly consistent with the king's knowledge of the truth of that charge in its full extent. I think that he served his master faithfully as secre- tary, at least after some time, though his warm recommendation of Marlborough, " who has been with me since this news [the failure of the attack on Brest] to offer his sen ices with all the expres- sions of duty and fidelity imaginable " (Slirewsbury Correspondence, 47), is somewhat suspicious, aware as be was of that traitor's connections. Will. III.] FROM HENRY VII. TO GEORGE II. 561 House of Commons as to the quaiTel be- tween this commander and the Board of Admiralty. They chose to support one who was secretly a ti-aitor, because he bore the name of Whig, tolerating his infamous neglect of duty and contemptible excuses, in order to puU down an honest, though not very able minister, who belonged to the Tories.* But they saw clearly that the king was beti'ayed, though mistaken, in this instance, as to the persons ; and were right in concluding that the men who had eflected the Revolution were in general most likelj- to maintain it ; or, in the words of a com- mittee of the whole House, " That his maj- esty be humbly advised, for the necessary support of his government, to employ in his councils and management of his atlairs such pei-sons only whose principles oblige them to stand by him and his right against the late King James, and all other pretenders whatsoever." f It is plain from this and other votes of the Commons, that the Tories had lost that majority which they seem to have held in the first session of this Parlia- ment.t It is not, however, to be infeired from this extensive combination in favor of the banished king, that his party embraced the majority of the nation, or that he could have been restored with any general testimonies of satisfaction. The friends of the Revolu- tion were still by fai" the more powerful body. Even the secret emissaries of James confess that the common people were strongly prejudiced against his return. His own enumeration of peers attached to his cause can not be brought to more than thir- ty, exclusive of Catholics ;§ and the real * Commons' Journals, Nov. 28, et post. Dal- rymple, iii., 11. Ralph, 346. " t Id., Jan. 11, 1692-3. i Burnet says, "The elections of Parliament (1690) went generally for men who would probably have declared for King James, if they could have known how to manage matters for him." — P. 41. This is quite an exaggeration; though the Tories, some of whom were at this time in place, did cer- tainly succeed in several diN-isious. But parties had now begun to be split, the Jacobite Tories voting with the malcontent Whigs. Upon the whole, this House of Commons, like the next which followed it, was well affected to the revolution set- tlement and to public libertv'. Whig and Tory were becoming little more than nicluiames. ft Macphei'son's State Papers, i., 459. These were all Tories except three or four. Tlie great end James and his adherents had in view, was to N N Jacobites were, I believe, in a far less pro- portion among the Commons. The hopes of that wretched victim of his own bigotiy and violence rested less on the loj-alty of his former subjects, or on their disaflection to his rival, than on the perfidious conspir- acy of EngUsh statesmen and admirals, of lord-lieutenants aud governors of towns, and on so numerous a French army as an ill- defended and disunited kingdom would be incapable to resist. He was to „ , , ' Schemes for retam, not as his brother, alone his restora- and unarmed, strong only in the consentient voice of the nation, but amid the bayonets of 30,000 French auxiliaries. These were the pledges of just and consti- tutional rule, whom our patriot Jacobites invoked against the despotism of William III. It was from a king of the house of Stuart, from James II., from one thus en- circled by the soldiers of Louis XIV., that we were to receive the guarantee of civil and religious liberty. Happily, the determ- ined love of arbitraiy power, burning un- extinguished amid exile aud disgrace, would not permit him to promise, in any distinct manner, those securities which a large por- tion of his own adherents required. The Jacobite faction was divided between com- pounders and non-compounders ; the one insisting on the necessity of holding forth a promise of such new enactments upon the king's restoration as might remove all jealousies as to the rights of the Church and people ; the other, more agreetibly to James's temper, rejecting eveiy compro- mise with what they called the Republican party at the expense of his ancient prerog- ative.* In a declaration which he issued from St. Germain in 1693, there was so little acknowledgment of error, so few promises of security, so many exceptions from the amnesty he offered, that the wiser of his partisans in England were willing to persuade Louis into an invasion of England ; their representations, therefore, are to be taken with ] much allowance, and in some cases we know them to be false ; as when James assures his brother of Versailles that three parts at least in four of the English clergy had not taken the oaths to William. —Id., 409. * Macpherson, 433. Somers Tracts, xi., 94. Tliis is a pamphlet of the time, exposing the St. Ger- main faction, and James's unwillingness to make I concessions. It is confirmed by the most authentic documents. 662 CONSTITUTIONAL HISTORY OF ENGLAND [Chap. XV. insinuate that it was not authentic* This declaration, and the virulence of Jacobite pamphlets in the same tone, must have done harm to his cause. f He published another declaration next year, at the earn- est request of those who had seceded to his side from that of the Revolution, iu which he held forth more specific assurances of consenting to a limitation of his preroga- tive.J But no reflecting man could avoid * Ralph, 350. Somers Tracts, x,, 211. t Many of these Jacobite tracts are printed iu the Somers Collection, vol. x. The more we read of them, the more cause appears for thankfulness that the nation escaped from such a furious party. They confess, in general, very little en-or or mis- government in James, but abound with malignant calumnies on his successor. The name of TuUia is repeatedly given to the mild and pious Maiy. The best of these libels is stj'led " Great Britain's just Complaint" (p. 429), by Sir James Montgom- ery, the false and fickle -proto-apostate of Whig- gism. It is written with singular vigor, and even elegance ; and rather extenuates than denies the faults of the late reign. i Ralph, 418. See the Life of James, 501. It contains chiefly an absolute promise of pardon, a declaration that he would protect and defend the Church of England as established by law, and se- care to its members all the churches, universities, schools, and colleges, together with its immunities, rights, and privileges, a promise not to dispense with the Test, and to leave the dispensing power in other matters to be explained and limited by Parliament, to give tlie royal assent to bills for fre- quent Parliaments, free elections, and impartial itrials, and to confirm such laws made under the present usurpation as should be tendered to him by Parliament. "The king," he says himself, " was sensible he should be blamed by several of his friends for submitting to such hard terms ; nor -was it to be wondered at, if those who knew not the trae condition of his affairs, were scandalized at it ; but, after all, be had nothing else to do." — p. 505. He was so little satisfied with the articles iu this declaration respecting the Church of Eng- land, that he consulted several French and En- glish divines, all of whom, including Bossuet, after some difference, came to an opinion that he could not in conscience undertake to protect and defend an erroneous church. Their objection, however, seems to have been rather to the expression than the plain sense ; for they agi'eed that he might promise to leave the Protestant church in posses- sion of its endowments and privileges. Many, too, of the English Jacobites, especially the non-juring bishops, were displeased with the declaration, as limiting the prerogative, though it contained noth- ing which they were not clamorous to obtain from WilUam. — P. 514. A decisive proof how little that party cared for civil liberty, and how little would have satisfied them at the Revolution, if James bad put the Church oat of danger! The perceiving thdt such promises wrung from his disti'ess were illusory and insincere ; tliat in the exultation of triumphant loyalty, even without the sword of the Gaul thrown into the scale of despotism, those who dreamed of a conditional restoration and of fresh guarantees for civil liberty, would find, like the Presbyterians of 1660, that it became them rather to be anxious about their own j)ardon, and to receive it as a j signal boon of the king's clemency. The I knowledge thus obtained of James's iucor- j rigible obstinacy seems gradually to have [ convinced the disaffected that no hope for I the nation or for themselves could be drawn j from his restoration.* His connections j next paragraph is remarkable enough to be ex- j ti acted for the better confinnation of what I have i just said. " By this the king saw he had out-shot i himself more ways than one in this declaration ; and therefore what expedient he would have found 1 in case he had been restored, not to put a force I either upon his conscience or honor, does not ap- ! pear, because it never came to a trial ; bat this is certain, his Church of England friends absolved him beforehand, and sent him word, that if he con- sidered the preamble and the verj' terms of the I declaration, he was not bound to stand by it, or to j put it out verbatim as it was worded ; that the ' changing some expressions and ambiguous terms, ! so long as what was principally aimed at had been , kept to, could not be called a receding from his declaration, no more than a new edition of a book can be accounted a different work, thougli correct- ed and amended. And, indeed, the preamble showed his promise was conditional, which they not perfonniug, the king could not be tied ; for my Lord Middleton had writ that, if the king signed the declaration, those who took it engaged to re- store him iu three or four months after; the king did his part, but their failure must needs take off the king's future obligation." In a Latin letter, the oiiginal of which is written in James's own hand, to Innocent XII., dated from Dublin, Nov. 26, 1689, he declares himself " Cathol- icam fidem reducere in ti-ia regna statuisse." — Somers Tracts, x., 552. Though this may have been drawn up by a priest, I suppose the king un- derstood what he said. It appeal's, also, by Lord Balcan-as s Memoir, that Lord Melfort had drawn up the declaration as to indemnit3- and indul- gence in such a manner that the king might break it whenever he pleased. — Somers Tracts, xi., 517. * The Protestants were treated with neglect and jealousy, whatever might have been their loyalty, at the court of James, as they were afterward at that of his son. The iucomgibility of the Stuart family is veiy remarkable. — Kennet, p. 638 and 738, enumerates many instances. Sir James Mont- gomen-, the Earl of Middleton, and others, were shunned at the court of St. Germain as guilty of Will. III.] FROM HENRY VII. :. TO GEORGE n. 563 with the trencherous counselors of William grew weaker ; and even before the peace of Eyswick it was evident that the aged bigot could never wield again the scepter he had thrown away. The scheme of as- sassinating our illustrious sovereign, which some of James's desperate zealots had de- vised without his privitj-, as may charitably and even reasonably be supposed,* gave a this sole crime of heresy, unless we add that of wishing for legal securities. * James himself explicitly denies, in the extracts from his Life, published by Macplierson. all i)artic- ipation in the scheme of killing William, and says that he had twice rejected proposals for bringing bim off alive ; thougii it is not true that he speaks of the design with indignation, as some have pre- tended. It was verj' natural, and very comforta- ble to the principles of kings, and others besides kings, in former times, that he should have lent an ear to this project ; and as to James's moral and religions character, it was not better than that of Clarendon, whom we know to have countenanced similar designs for the assassination of Cromwell. Iq fact, tlie received code of ethics has been im- proved in this respect. We may be sure, at least, that those who ran such a risk for James's sake expected to be thanked and rewarded in the event of success. I can not, tlierefore, agree with Dal- rymple, who says that nothing but the fury of party could have exposed James to this suspicion. Though the proof seems very short of conviction, there ai'e some facts worthy of notice : 1. Burnet positively chai-ges the late king with privity to the conspiracy of Grandval, executed in Flanders for a design on William's life, 1692 (p. 95) ; and this he does with so much particularity, and so little hesitation, that he seems to have drawn his infor- mation from high authority. The sentence of the com-t martial on Grandval also alludes to James's knowledge of the crime (Somers Tracts, x., 580), and mentions expressions of his, which, though not conclusive, would raise a strong presumption in any ordinary ease. 2. William himself, in a memorial intended to have been delivered to the ministers of all the allied powers at Ryswick, in answer to that of James (Id., xi., 103. Ralph, 730), positively imputes to the latter repeated conspira- cies against his life ; and he was incapable of say- ing what he did not believe. In the same memo- rial he shows too much masnanimity to assert that the birth of the Prince of W ales was an imposture. 3. A paper by Charnock, undeniably one of the con- spirators, addressed to James, contains a marked allusion to William's possible death in a short time ; which even Macpherson calls a delicate mode of hinting the assassination-plot to him. — Macpherson, State Papers, i., 519. Compare, also, State Trials, xii., 1323, 1327, 1329. 4. Somei-ville, though a disbeliever in James's participation, has a very curious quotation from Lamberti, tending to implicate Louis XIV., p. 428 ; and we can hardly suppose that he kept the other out of the secret. Indeed, the crime is greater and less I fatal blow to the interests of that faction. It was instantly seen that the murmurs of malcontent Whigs had nothing in common with the disaffection of Jacobites. The nation resounded with an indignant cry against the atrocious conspiracy. An as- sociation abjuring the title of James, and pledging the subscribers to revenge the king's death, after the model of that in the reign of Elizabeth, Avas generally signed by both houses of Parliament, and throughout the kingdom.* The adherents of the exiled family dwindled into so powerless a minor- ity that they could make no sort of opposi- tion to the act of settlement, and did not recover an efficient character as a party till toward the latter end of the ensuing reign. Perhaps the indignation of Parliament credible in Louis than in James. But devout kings have odd notions of morality ; and their con- fessors, I suppose, much the same. I admit, as before, that the evidence falls short of conviction ; and that the verdict, in the language of Scots law, should be. Nut Proven ; but it is too much for our Stuart apologists to treat the question as one abso- lutely determined. Documents may yet appear that will change its aspect. I leave the above paragraph as it was written before the publication of M. Mazure's valuable History of the Revolution. Ho has therein brought to light a commission of James to Crosby, in 1C93, authorizing and requiring him " to seize and secure the person of the Prince of Orange, and to bring him before us, taking to your assistance such other of our faithful subjects in whom you maj' place confidence." — Hist, de la R6vol., iii., 443. It is justly observed by M. Mazure, that Crosby might think no renewal of his authority necessary in 1696 to do that which he had been required to do in 1693. If we look attentively at James's own lan- guage in Macpherson's extracts, without much re- garding the glosses of Innes, it will appear that he does not deny in express tenns that he had consented to the attempt in 1696 to seize the Prince of Orange's person. In the commission to Crosby he is required not only to do this, but to bring him before the king. But is it possible to consider this language as any thing else than a euphemism for assassination ? Upon the whole evidence, therefore, I now think that James was privy to the conspiracy, of which the natural and inevitable consequence must have been foreseen by himself ; but I leave the text as it stood, in order to show that I have not been guided by any prejudice against his character. * Pari. Hist, 991. Fifteen peers and ninety- two commoners refused. The names of the latter were circulated in a pi-inted paper, which the House voted to be a breach of their privilege, and destruction of the freedom and liberties of Parlia- ment, Oct. 30, 1696. This, however, shows the unpopularity of their opposition. 564 CONSTITUTIONAL HISTORY OF ENGLAND [Chap. XV. aeauist those who sought to bring Atttiinder ° , . , .... of Sir John back despotism through civil war Fenwick. ^^le murder of an heroic sov- ereign, was carried too far in the bill for attainting Sir John Fenwick of treason. Two witnesses, i-equired by our law in a charge of that nature, Porter and Goodman, had deposed before the grand jury to Fen- wick's share in the scheme of invasion, though there is no reason to believe that he was privy to the intended assassination of the king. His wife subsequently pre- vailed on Goodman to quit the kingdom, and thus it became impossible to obtain a con- viction in the course of law. This was the apology for a special act of the Legislature, by which he suftered the penalties of trea- son. It did not, like some other acts of attainder, inflict a punishment beyond the offense, but supplied the deficiency of legal evidence. It was sustained by the produc- tion of Goodman's examination before the privy council, and by the evidence of two grand-jurymen as to the deposition he had made on oath before them, and on which they had found the bill of indictment. It was also shown that he had been tampered with by Lady Mary Fenwick to leave the kingdom. This was undoubtedly as good secondary evidence as can well be imagin- ed ; and though, in criminal cases, such evi- dence is not admissible by courts of law, it was plausibly urged that the Legislature might prevent Fenwick from taking ad- vantage of his own underhand management, without transgi'essing the moral rules of justice, or even setting the dangerous prec- edent of punishing treason upon a single testimony. Yet, upon the whole, the im- portance of adhering to the stubborn rules of law in matters of treason is so weighty, and the difficulty of keeping such a body as the House of Commons within any less precise limits so manifest, that we may well concur with those who thought Sir John Fenwick much too inconsiderable a person to warrant such an anomaly. The jealous sense of liberty prevalent in Will- iam's reign produced a veiy strong opposi- tion to this bill of attainder ; it passed in each House, especially in the Lords, by a small majority.* Nor, perhaps, would it * Burnet; see the notes on the Oxford edition. Ralph, 692. The motion for bringing in the bill, Nov. 6, 1696, was carried by 169 to 61 ; but this have been cari-ied but for Fenwick's im- prudent disclosure, in order to save his life, of some great statesmen's intrigues with the late king ; a disclosure which he dared not, or was not in a situation to confirm, but which rendered him the victim of their fear and revenge. Russell, one of those ac- cused, brought into the Commons the bill of attainder ; Marlborough voted in favor of it, the only instance wherein he quitted the Tories ; Godolphin and Bath, with more humanity, took the other side ; and Shrews- bury absented himself from the House of Lords.* It is now well known that Fen- majority lessened at every stage ; and the final division was only 189 to 156. In the Lords it passed by 68 to 61 ; several Whigs, and even the Dute of Devonshire, then lord-steward, voting in the minority. — Pari. Hist., 996-11.54. Marlborough probably made Prince George of Denmark sup- port the measure. — Shrewsbury Correspondence, 449. Many remarkable letters on the subject are to be found in this collection ; but I warn the reader against trusting any part of the volume except the letters themselves. The editor has, in defiance of notorious facts, represented Sir John Fenwick's disclosures as false; and twice charges him with prevarication (p. 404), using the word without any knowledge of its sense, in declining to answer questions put to him by members of the House of Commons, which he could not have answered without inflaming the animosity that sought hi« life. It is said in a note of Lord Hardwicke on Bur- net, that " the king, before the session, had Sir John Fenwick brought to the cabinet council, where he was present himself But Sir John would not explain his paper." — See, also, Shrews- bury CoiTespondeuce, 419, et post. The truth was, that Fenwick, having had his information at sec- ond-hand, could not prove his assertions, and feared to make his case worse by repeating them. * Godolphin, who was then first commissioner of the treasury, not much to the liking of the Whigs, seems to have been tricked by Sunder- land into retiring fiom office on this occasion. — Id., 415. Shrewsbury", secretaiy of state, could hardly be restrained by the king and his own friends from resigning the seals as soon as he knew of Fenwick's accusation. His behavior shows either a consciousness of guilt or an inconceivable cow- ardice. Yet at first he wrote to the king, pre- tending to mention candidly all that had passed between him and the Earl of Middleton, which in fact amounted to nothing. — P. 147. This letter, however, seems to show that a story which has been several times told, and is confirmed by the biographer of James II. and by Macpherson's Papers, that William compelled Shrewsbury to accept office in 1693, by letting him know that he was aware of his connection with St. Germain's, is not founded in ti^uth. He could hardly have written in such a style to the king with that fact Will. III-l FROM HENRY VII. TO GEORGE II. 565 \\ick's discoveries went not a step beyond the truth. Their effect, however, was ben- eficial to the state ; as, by displaying a strange want of secresy in the court of St. Germain's, Fenwick never having had any direct communication with those he accus- ed, it caused Godolphin and Marlborough to break off their dangerous course of per- fidy.t Amid these scenes of dissension and dis- Til success affection, and amid the public loss- of the war. gg jjjj decline which aggravated them, we have scarce any object to con- template with pleasure but the magnani- mous and unconquerable soul of William. Mistaken in some parts of his domestic policy, unsuited by some failings of his character for the EngUsh nation, it is still to his superiority in virtue and energy over all her own natives in that age that England is indebted for the presen-ation of her honor and liberty ; not at the crisis only of the Revolution, but through the difficult period that elapsed until the peace of Rj'swick. A war of nine years, generally unfortunate, unsatisfactorj' in its result, carried on at a cost unknown to former times, amid the decay of trade, the exhaustion of resources, the decline, as there seems good reason to believe, of population itself, was the fester- ing wound that turned a people's grati- tude into factiousness and treachery. It was easy to excite the national preju- dices against campaigns in Flanders, espe- cially when so unsuccessful, and to inveigh against the neglect of our maritime power ; yet, unless we could have been secure against invasion, which Louis would infal- libly have attempted, had not his whole force been occupied by the grand alliance, and which, in the feeble condition of our navy and commerce, at one time could not have been impracticable, the defeats of Steenkirk and Lauden might probably have been sustained at home. The war of 1689, in his way. Monmoutb, however, had some sus- picion of it, as appears by the bints he famished to Sir J. Fenwick toward establishing the charges. — P. 450. Lord Dartmouth, full of inveterate prej- Ddices against the king, charges him with personal piqae against Sir John Fenwick, and with insti- gating members to vote for the bill; yet it rather seems that he was, at least for some time, by no means anxious for it. — Shrewsbury Coirespond- ence; and compare Coxe's Life of Marlborough, i., 63. * Life of James, ii., 558. and the great confederacy of Europe, which William alone could animate with any steadiness and energy, were most evident- ly and undeniably the means of preserving the independence of England. That dan- ger, which has sometimes been in our countrymen's mouths with little meaning, of becoming a province to France, was then close and actual ; for I hold the restoration of the house of Stuart to be but another expression for that ignominy and sei-vitude. The expense, therefore, of this war must not be reckoned unnecessary ; , lis expenses. nor must we censure the gov- ernment for that small portion of our debt which it was compelled to entail on poster- ity.* It is to the honor of William's ad- ministration, and of his Parliaments, not always clear-sighted, but honest and zealous for the public weal, that they deviated so little from the praiseworthy, though some- times impracticable, policy of providing a revenue commensurate with the annual ex- penditure. The supplies annually raised * The debt at the king's death amounted to £16,394,702, of which above three millions were to expire in 1710. — Sinclair's Hist, of Revenue, i., 425 {third edition). Of this sum, £664,263 was incuired before the Revolution, being a part of the money of which Charles II. had robbed the public creditor by shut- ting up the Exchequer. Interest was paid upon this down to 1683, when the king stopped it. The i Legislature ought undoubtedly to have done just- ice more effectually and speedilj- than by passing an act in 1699, which was not to take effect till December 25, 1705 ; from wliich time the excise was charged with three per cent, interest on the principal sum of £1,328,526, subject to be redeemed by payment of a moiety. No compensation was given for the loss of so many years' interest. — 12 & 13 W. III., c. 12, § 15. Sinclair, i., 397. State Trials, xiv., 1, et post. According to a particular ! Statement in Somers Tracts, xii., 383, the receipts j of the Exchequer, including loans, during the whole reign of William, amounted to rather more than £72,000,000. The author of the Letter to the Rev. T. Carte, in answer to the latter's Letter to a By stander, estimates the sums raised under Charles II., from Christmas, 1660, to Christmas, 1684, at £46,233,923. Carte had made them only £32,474,265. But his estimate is evidently false and deceptive. Both reckon the gross produce, not the Exchequer payments. This controversy was about the year 1742. According to Sinclair, Hist, of Revenue, i., 309, Carte had the last word; but I can not conceive liow he answered the above-mentioned letter to him. Whatever might be the relative expenditure of the two reigns, it is evident that the war of 1689 was brought on in a great measure by the conupt policy of Charles II. 566 CONSTITUTIONAL HISTORY OF ENGLAND [Chap. XT. duriug the war were about five millions, more than double the revenue of James II. But a great decline took place in the prod- uce of the taxes by which that revenue was levied. In ] 693, the customs had dwindled to less than half their amount before the Revolution, the excise duties to little more than half.* This rendered heavy impositions on land inevitaljje ; a tax always obnoxious, and keeping up disaffec- tion in the most poweiful class of the com- munity. The first land-tax was imposed in 1G90, at the rate of three shiUings in the pound on the rental; and it continued ever afterward to be annually granted, at differ- ent rates, but commonly at four shillings in the pound, till it was made perpetual in 1798. A tax of twenty per cent, might well seem gi'ievous ; and the notorious in- equality of the assessment in different coun- ties tended rather to aggravate the burden upon those whose contribution was the fairest. Fresh schemes of finance were devised, and, on the whole, patiently borne by a jaded people. The Bank of England rose under the auspices of the Whig party, and mateiially relieved the immediate exi- gencies of the government, while it pal- liated the general distress, by discounting bills and lending monej- at an easier rate of interest ; yet its notes were depreciated by twenty per cent, in exchange for silver ; and Exchequer tallies at least twice as much, till they wei'e funded at an interest of eight per cent.f But, these resources generally falling veiy short of calculation, and being anticipated at such an exorbitant discount, a constantly increasing deficiency arose, and public credit sunk so low, that about the year 1696 it was hardly possible to pay the fleet and army from month to month, and a toteil bankruptcy seemed near at hand. These distresses again were en- hanced by the depreciation of the chculat- ing coin, and by the bold remedy of re- coinage, which made the immediate stagna- * Davenant, Essay on Waj-s and Means. In another of his tracts, vol. ii., 266, edit. 1771, this writer computes the payments of the state in 16iS at one shilling in the pound of the national income, but after the war at two shillings and sixpence. t Godfrey's Short Account of Bank of Ensland, in Somers Tracts, xi., 5. Kennet's complete Hist., iii., 723. Ralph, 681. Shrewsburj- Papers. Mac- pherson's Annals of Commerce, A.D. 1C97. Sin- clair's Hist, of Revenue. j tion of conmierce more complete. The I mere operation of exchanging the worn sil- I ver coin for the new, which Mr. 3Ion- I tague had the courage to do without low- I ering the standard, cost the government ; two millions and a half. Certainly the vessel of our Commonwealth has never j been so close to shipwreck as in this peri- od ; we have seen the storm raging in still greater terror round our heads, but with far stouter planks and tougher cables to confront and ride through it. Those who accused William of neglecting the maritime force of England knew little what they said, or cared little about its truth.* A soldier and a native of Holland, j he naturally looked to the Spanish Nether- lands as the theater on which the battle of France and Europe was to be fought. It j was by the possession of that country and its chief fortresses that Louis aspired to hold j Holland in vassalage, to menace the coasts j of England, and to keep the Empire under his influence ; and if, with the assistance of those brave regiments, who learned, in the well-contested though unfortunate battles of that war, the skill and discipline which made them conquerors in the next, it was found that France was stUl an overmatch for the , allies, what would have been eft'ected ai^aiust j her by the decrepitude of Spain, the per- I verse pride of Austria, and the selfish dis- I union of Germany ? The commerce of ! France might, perhaps, have suflTered more by an exclusively maritime warfare ; but we should have obtained this advantage, which * " Nor is it true that the sea was neglected ; for I think during much the greater part of the i wai' which began in 1689 we were entirely mas- ters of the sea, by our victory in 1692, which was only three years after it broke out, so that for sev- I en years we carried the hroom ; and for any neg- lect of our sea affairs otherwise, I believe, I may in a few words prove that all the princes since the Conquest never made so remarkable an improve- ment to our naval strength as King William. He (Swift) should have been told, if he did not know, what havoc the Dutch had made of our shipping in King Charles the Second's reign ; and that his successor. King James the Second, had not in his whole navy, fitted out to defeat the designed in- vasion of the Prince of Orange, an individual ship of the first or second rank, which all lay neglected, and mere skeletons of former services, at their moorings. These this abused prince repaired at an immense charge, and brought them to their pristine magnificence." — Answer to Swift's Con- duct of the Allies, in Somers Tracts, siii., 2-17. Will. III.] FROM HENHY V: II. TO GEOEGE II. 567 in itself is none, and would not have essen- tially crippled her force, at the price of abandoning to her ambition the quarry it had so long in pursuit. Meanwhile, the naval unnnis of this war added much to our re- nown ; Russell, glorious in his own despite at La Hogue, Rooke, and Shovel ke])t up the honor of the English flag. After that great victory, the enemy never encountered us in battle ; and the wintering of the fleet at Cadiz in 1694, a measure determined on by William's energetic mind, against the ad- vice of his ministers, and in spite of the fret- ful insolence of the admiral, gave us so de- cided a pre-eminence both in the Atlantic and Mediterranean Seas, that it is hard to say what more could have been achieved by the most exclusive attention to the navy.* It is true that, especially during the first part of the war, vast losses were sustained through the capture of merchant ships ; but this is the inevitable lot of a coaunercial country, and has occurred in every war, until the practice of placing the traders under convoy of aj-med ships was intro- duced ; and, when we consider the treach- eiy which pervaded this service and the great facility of secret intelligence which the enemy possessed, we may be astonished that our failures and losses were not still more decisive. The treaty of Ryswick was concluded on Treaty of at least as fair terms as almost per- Ryswick. pgtu;ii ill fortune could warrant us to expect. It compelled Louis XIV. to recognize the king's title, and thus both humbled the court of St. Germain's, and put an end for several years to its intrigues« It extinguished, or, rather, the war itself had extinguished, one of the bold hopes of the French court, the scheme of ])rocuring the election of the dauphin to the Empire. It gave at least a breathing time to Europe, so long as the feeble lamp of Charles II. 's life * Dalnnnple has remarked tlie important conse- quences of this bold measure ; but we have learn- ed only by the publittation of Lord Shrevrsbury's Con'espondence that it originated with the king, and was carried through by him against the muti- nous remonstrances of Russell. — See p. 68, 104, 202, 210, 234. This was a most odious man; as ill- tempered and violent as he was perfdious. But the rudeness with which the king was treated by Bome of his servants is- very remarkable. Lord Sunderland wrote to liira at least with great blunt- negs. Hardwicke Papers, 444. should continue to glimmer, during which the fate of his vast succession might possi- bly be regulated without injury to the lib- erties of Europe.* But to those who looked with the king's eyes on the prospects of the Continent, this pacification could appear nothing else than a preliminary armistice of vigilance and preparation. He knew that the Spanish dominions, or, at least, as large a portion of them as could be grasped by a powerful arm, had been for more than thirty j'ears the object of Louis XIV. The acqui- sitions of that monarch at Aix la Chapelle and Nimeguen had been comparatively trifling, and seem hardly enough to justify the dread that Europe felt of his aggressions. But in contenting himself for the time with a few strong towns, or a moderate district, he con- stantly kept in view the weakness of the King of Spain's constitution. The queen's renunciation of her right of succession was invalid in the jurisprudence of his court. Sovereigns, accoi-ding to the public law of France, uncontrollable by the rights of oth- ers, were incapable of limiting their own. They might do all things but guaranty the pi'ivileges of their subjects or the independ- ence of foreign states. By the Queen of France's death, her claim upon the inlierit- ance of Spain had devolved upon the dau- phin ; so that ultimately, and viitually in the first instance, the two great monarchies would be consolidated, and a single will would direct a force much more than equal to all the rest of Europe. If we admit that * The peace of Rj swick was absolutely neces- sary, not only on account of the defection of the Duke of Savoy, and the manifest disadvantage with which the allies earned on the war, but be- cause public credit in England was almost annihi- lated, and it was hardly possible to pay the army. The extreme distress for money is forcibly dis- placed in some of the king's letters to Lord Shrews- bury.—P. 114, &c. These were in 1C90, the very nadir of English prosperity; from which, by the favor of Providence and the buoyant energies of the nation, we have, though not quite with a uniform motion, culminated to our present height (1824). If the treaty could have been concluded on the basis originally laid down, it would even have been honorable. But the French rose in their terms during their negotiation ; and through the selfishness of Austiia obtained Strasburg, whicli they had at first offered to relinquish, and were very near getting Luxemburg. — Shrewsbury Cor- respondence, 316, &c. Still the teiras were better than those offered in 1G93, which William has been censured for refusing. 068 CONSTITUTIONAL HISTORY OF ENGLAND [Chap. XV, pveiy little oscillation in the balance of power has sometimes been too minutely regarded by E nglish statesmen, it would be absurd to contend that such a subversion of it as the union of France and Spain under one head did not most seriously threaten both the in- dependence of England and Holland. The House of Commons which sat at the , , , conclusion of the treaty of B.ys- Jealousy of the Com- wick, chiefly composed of Whigs, and having zealously co-operated in the prosecution of the late war, could not be supposed lukewarm in the cause of lib- erty, or indifferent to the aggi-andizement of France ; but the nation's exhausted state seemed to demand an intermission of its bur- dens, and revived the natural and laudable disposition to frugality which had character- ized in all former times an English Parlia- ment. The aiTears of the war, joined to loans raade during its progi-ess, left a debt of about seventeen millions, which excited much inquietude, and evidently could not be discharged but by steady retrenchment and uninterrupted peace. But, besides this, a reluctance to see a standing army established prevailed among the great majority both of Whigs and Tories. It was unknown to their ancestors — this was enough for one party ; it was dangerous to liberty — ^this alarmed the other. Men of ability and hon- est intention, but, like most speculative pol- iticians of the sixteenth and seventeenth cen- turies, rather too fond of seeking analogies in ancient histoiy, influenced the public opinion by their writings, and carried too far the undeniable tnith, that a large army at the mere control of an ambitious prince may often overthrow the liberties of a peo- ple.* It was not sufficiently remembered that the Bill of Rights, the annual mutiny bill, the necessity of annual votes of supply for the maintenance of a regular army, be- sides, what was far more than all, the pub- licity of all acts of government, and the strong spirit of liberty burning in the people, had materially diminished a danger which it would not be safe entirely to contemn. * Moyle now published his " Ar^meut, show- ing that a standing army is inconsistent with a free government, and absolutely destructive to the constitution of the Enghsh monarchy'' (State Tracts, temp. W. III., ii., 564) ; and Trenchard his Histoi-y of Standing Armies in England. — Id., 563. Other pamphlets of a similar description may be Ibund in the same volume. Such, however, was the influence of what may be called the constitutional an- tipathy of the English in that age to a regular army, that the Commons, in the first session after the peace, voted that all troops raised since 1G80 should be disband- ed, reducing the forces to about 7000 men, which they were with difficulty prevailed upon to augment to 10,000.* They resolved at the same time that, " in a just sense and acknowledgment of what great things his majesty has done for these kingdoms, a sum not exceeding .£700,000 be granted to his majesty during his life fw the support of the civil list." So ample a gift from an impov- erished nation is the strongest testinwny of their affection to the king.f But he was justly disappointed by the former vote, which, in the hazardous condition of Eu- rope, prevented this country from wearing a countenance of preparation, nwre likely to avert than to bring on a second conflict. He permitted himself, however, to carry this resentment too far, and lost sight of that subordination to the law which is the duty of an English sovereign, when he evaded compliance with this resolution of the Com- mons, and took on himself the unconstitu- tional responsibility of leaving sealed orders, when he went to Holland, that 16,000 men should be kept up, without the knowledge of his ministers, which they as unconstitu- tionally obeyed. In the next session, a new- Parliament having been elected, full of men strongly imbued with what the courtiers styled Commonwealth principles, or an ex- treme jealousy of royal power,t it was found * Journals, 11th of Dec, 1697. Pari. Hist, 1167. t Jonmals, iUi of Dec., 1697. ParL Hist., v, 1168. It was carried by 225 to 86. X "The elections fell generally," says Burnet, " on men who were in the interest of government ; manv of them had indeed some popular notions, which they had drank in under a bad government, and thought this ought to keep them under a good one ; so that those who wished well to the public did apprehend great difficulties in managing them." Upon which Speaker Onslow has a verj- proper note : " They might happen to think," he says, " a good one might become a bad one, or a bad one might succeed to a good one. They were the best men of the age, and were for maintaining the rev- olution government by its own principles, and not bj- those of a government it had superseded." " The elections," we read in a letter of Mr. Mon- tague, Aug., 1698, "have made a humor appear in the counties that it is not very comfortable to us who are in business. But yet, after all, the Will. III.] PROM HENRY VII. TO GEORGE II. 569 impossible to resist a diminution of the ar- my to 7000 troops.* These, too, were voted to be natives of the British dominions ; and the king incurred the severest mortificatioa of liis reign in the necessity of sending baci< liis regiments of Dutch guards and French refugees. The messages which ])assed be- tween him and the Parhanient bear witness how deeply he felt, and how fruitlessly he deprecated, this act of unkindness and in- gratitude, so strikingly in contrast with the deference that Parliament has generally shown to the humors and prejudices of the crown in matters of fiir higher moment.f The foreign troops were too numerous, and it would have been politic to conciliate the nationality of the multitude by reducing their number; yet they had claims which a gi'ateful and generous people should not have forgotten : they were, many of them, the chivalry of Protestantisu), the Huguenot gentleman who had lost all but their swords in a cause which we deemed our own ; they were the men who had terrified James from Whitehall, and brought about a deliverance, which, to speak plainly, we had neither sense nor courage to achieve for ourselves, or which, at least, we could never have achieved without enduring the convulsive throes of anarchy. There is, if not more apology for the con- irish forfeit- Avict of the Commons, yet more uros resumed, to censure on the king's side, in another scene of humiliation whicli he pa.'^s- present mombcrs are such as will neither hurt England nor this government, but I believe they mast be handled very nicely." — Shrewsbury Cor- respondence, 551. This Parliament, however, fell into a great mistake about the reduction of the ar- ray, as Bolingbroke in liis Letters on History very candidly admits, though connected with those who liad voted for it. • Journals, 17th of December, 1698. Pari. Hist., 1191. t Journals, 10th of Jan., 18th, 20th, and 25th of March. Lords' Jounials, 8th of Feb. Pari. Hist., 1167, 1191. Ralph, 808. Burnet, 219. It is now beyond doubt that William had serious thoughts of quitting the government, and retiring to Hol- land, sick of the faction and ingi-atitude of this na- tion.— Shrewsbury Correspondence, 571. Hard- wicke Papers, 3C2. This was in his character, and not like the vulgar storj- which that retailer of all gossip, Dali-ymple, calls a well-authenticated tradition, that the king walked furiously round his room, exclaiming, " If I had a son, by G — , the guards should not leave me." It would be vain to ask how this son would have enabled him to keep them against the bent of the Parliament and people. ed through, in the business of the Irish for- feitures. These confiscations of the pi'op- erty of those who had fought on the side of James, though, in a legal sense, at the crown's disposal, ought undoubtedly to have been applied to the public service. It was the intention of Parliament that two thirds at least of these estates should be sold for that purpose ; and William had, in answer to an addi'ess (Jan., 1690), promised to make no grant of them till the matter should be considered in the ensuing session. Several bills were brought in to carry the original resolutions into effect, but, probably through the influence of government, they always fell to the ground in one or other house of Parliament. Meanwhile the king granted away the whole of these forfeitures, about a million of acres, with a culpable profuse- ness, to the enriching of his personal favor- ites, such as the Earl of Portland and the Countess of Orkney ;* yet, as this had been done in the exercise of a lawful prerogative, it is not easy to justify the act of resumption passed in 1699. The precedents for re- sumption of grants were obsolete, and from bad times. It was agreed on all hands that the royal domain is not inalienable ; if this were a mischief, as could not, perhaps, be doubted, it was one that the Legislature had permitted with open eyes till there was nothing left to be alienated. Acts, there- fore, of this kind, shake the general stability of possession, and destroy that confidence in * The prodigality of William in grants to his fa- vorites was an undeniable reproach to his reign. Charles II. had, however, with much greater pro- fuseness, though much less blamed for it, givea away almost all the crown lands in a few years after the Restoration ; and the Commons could not now be prevailed upon to shake those grants, which was urged by the court, in order to defeat the resumption of those in the present reign. The length of time undoubtedly made a considerable dift'ereuce. An enormous grant of the crown's do- manial rights in North Wales to the Earl of Port- land excited much clamor in 1697, and produced a speech from Mr. Price, afterward a baron of the Exchequer, which was much extolled for its bold- ness, not rather to say, virulence and disaffection. This is printed in Pari. Hist., 978, and many oth- er books. The king, on an address from the House of Commons, revoked the grant, vs-hich, in- deed, was not justifiable. His answer on this oc- casion, it may be here remarked, was by its mild- ness and courtesy a striking contrast to the inso- lent rudeness with which the Stuarts, one and all, had invariably treated the House. 570 COXSTITUTIOXAL HISTORY OF ENGLAND [Chap. XV. which the practical sense of freedom con- ' sists, that the absolute power of the Legis- 1 lature, which in strictness is as arbitraiy in England as in Persia, will be exercised in consistency with justice and lenity. They ! are also accompanied for the most part, as appears to have been the case in this in- j stance of the Irish forfeitures, with partial- ity and misrepresentation as well as vio- lence, and seldom fail to excite an odium far more than commensurate to the transient ' popularity which attends them at the out- set.* But, even if the resumption of William's Irish grants could be reckoned defensible, there can be no doubt that the mode adopt- ed by the Commons, of. tacking, as it was called, the provisions for this purpose to a money bill, so as to render it impossible for the Lords even to modify them without de- priving the king of his supply, tended to subvert the Constitution and annihilate the rights of a co-equal house of Parliament. This most reprehensible device, though not an unnatural consequence of their pretended right to an exclusive concern in money bills, had been employed in a former instance during this reign. f They were again suc- cessful on this occasion ; the Lords receded from their amendments, and passed the bill at the king's desire, who perceived that the fury of the Commons was tending to a ter- rible convulsion. t But the precedent was infinitely dangerous to their legislative pow- er. If the Commons, after some more at- tempts of the same nature, desisted from so unjust an encroachment, it must be at- tributed to that which has been the gieat preservative of the equilibrium in our gov- ernment, the public voice of a reflecting peo- ple, averse to manifest innovation, and soon offended by the intemperance of factions. The essential change which the fall of the Parliament- dynasty had \^TOught in our ary inqui- Constitution displayed itself in such a vigorous spirit of inquiry and interference of Parliament with all the course of government as, if not absolutely • Pari. Hist., 1171, 1202, &c. Ralph, Bumet, Slirewsbuiy Correspondeuce. See, also, Dave- iiant's Essay on Grants and Resumptions, and sun- dry- pamplilets in Somers Tracts, vol. ii., and State Tracts, temp. W. IH., vol. ii. t In Feb., 1692. t See the same authorities, especially the Sbrewsburj' Letters, p. 602. new, was more uncontested and more effect- ual than before the Revolution. The Com- mons, indeed, under Charles II. had not wholly lost sight of the precedents which the Long Parliament had established for them, though with continual resistance from the court, in which their right of examina- tion was by no means admitted ; but the Tories throughout the reign of William evinced a departure from the ancient prin- ciples of their faction in nothing more than in asserting to the fullest extent the powers and privileges of the Commons ; and, in the coalition they formed with the malcontent Whigs, if the men of libertj' adoj^ted the nickname of the men of prerogative, the latter did not less take up the maxims and feelings of the former. The bad success and suspected management of public affairs co-operated with the strong spirit of party to establish this important accession of au- thoritj- to the House of Commons. In June, 1689, a special committee was appointed to inquire into the miscarriages of the war in Ii'eland, especially as to the delay in reliev- ing Londonderry. A similar committee was appointed in the Lords. The former reported severely against Colonel Lundy, governor of that city ; and the House ad- dressed the king, that he might be sent over to be tried for the treasons laid to his charge.* I do not think there is any earlier precedent in the Journals for so specific an inquity into the conduct of a public officer, especially one in military command. It inarks, there- fore, very distinctly the change of spirit which I have so frequently mentioned. No courtier has ever since ventured to deny this general right of inquiry, though it is a frequent practice to elude it. The right to inquire draws with it the necessary means, the examination of witnesses, records, j5a- pers, enforced by the strong ann of Parlia- mentary privilege. In one respect alone these powers have fallen rather short ; the Commons do not administer an oath ; and having neglected to claim this authority in the iiTegular times when they could make a privilege by a vote, they would now, per- haps, find difficulty in obtaining it by consent of the House of Peers. They renewed this committee for inquiring into the mis- carriages of the war in the next session, f * Commons' Journals, June 1, Aug t Id., Nov. 1. 12. Will. Ill ] FROM HENRY VII. TO GEORGE II. 571 They went very fully into the dispute be- tween the Board of Admiralty nud Admiral Russell, after the battle of La ilogue ;* and the year after investigated the conduct of his successors, Kiligrew and Delaval, in the command of the Channel fleet. f They went, in the winter of 1C94, into a very long examination of the admirals and the orders issued by the Admiraltj' during the preced- ing year ; and then voted that the sending the fleet to the Mediterranean, and the con- tinuing it there this winter, has been to the honor and interest of his majesty and his kingdoms. t But it is hardlj' worth while to enumerate later instances of exercising a right which had become indisputable, and, even before it rested on the ba.sis of prece- dent, could not reasonably be denied to those who might advise, remonstrate, and ii7i- peach. It is not surprising that, after such im- portant acquisitions of power, the natural spirit of encroachment, or the desire to dis- ti'ess a hostile government, should have led to endeavors, which by their success would have drawn the executive administration more directly into the hands of Parliament. A proposition was made by some peers, in December, 1692, for a conunittee of both Houses to consider of the present state of the nation, and what advice should be given to the king concerning it. This dangerous pi'oject was lost by 48 to 3G, several Tories and dissatisfied Whigs uniting in a protest against its rejection. § The king had in his speech to Pai-liament requested their advice in the most general terms ; and this slight expression, though no more than is con- tained in the common writ of summons, was tortured into a pretext for so extraordinary a proposal as that of a committee of dele- gates, or council of state, which might soon have grasped the entire .administration. It was at least a remedy so little according to precedent, or the analogy of our Constitu- tion, that some veiy serious cause of dissat- isfaction with the conduct of affairs could be its only excuse. * Pari. Hist., 657. Dalrjraple. Commons' and Lords' Journals. t Pari. Hist., 793. Delaval aud Killisrrew were Jacobites, whom William generously but impru- dently put into the command of the fleet. t Commons' Journals, Feb. 27, 1694-5. § Pari. Hist, 9-11. Burnet, 105. Burnet has spoken with reprobation of another scheme engendered by the same spirit of inquiry and control, that of a coun- cil of trade, to be nominated by Parliament, with powers for the efl'ectual preservation of the interests of the merchants. If the members of it were intended to be immov- able, or if the vacancies were to be filled by consent of Parliament, this would, indeed, have encroached on the prerogative in a far more eminent degree than the famous In- dia Bill of 1783, because its operation would have been more extensive and more at home ; and, even if they were only named in the first instance, as has been usual in Parliamentaiy commissioners of account or inquiry, it would still be material to ask, what extent of power for the preservation of trade was to be placed in their hands ? The precise nature of the scheme is not ex- plained by Burnet ; but it appears by the Journals that this council was to receive in- formation from merchants as to the neces- sity of convoys, and send directions to the Board of Admiralty, subject to the king's control, to receive complaints and represent the same to the king, and in many other respects to exercise very important and anomalous functions. They were not, how- ever, to be members of the House ; but even with this restriction, it was too haz- ardous a dep.irture from the general max- ims of the Constitution.* The general unpopularity of William's administration, aud more pai-ticu- Treaties of larly the reduction of the forces, partition, afford an ample justification for the two treaties of partition, which the Tory faction, with scandalous injustice and inconsistency, turned to his reproach. No one could deny that the aggrandizement of France by both of these treaties was of serious consequence. But, according to English interests, tlie first object was to secure the Spanish Nether- lands fi-om becoming provinces of that pow- er ; the next to maintain the real independ- ence of Spain and the Indies. Italy was but the last in order ; and though the pos- session of Naples and Sicily, with tho ports of Tuscany, as stipulated in the treaty of * Burnet, 163. Commons' Journals, Jan. 31, 1695-6. An abjuration of Kinsr James's title in very strong terms was proposed as a qualificatiou for members of this council; but this was lost by 195 to 188. 572 COXSTITUTIONAL HISTORY OF ENGLAND [Chap. XV partition, would have rendered France ab- ' solute mistress of that whole country and of the 3IediteiTanean Sea, and essentially changed the balance of Eui-ope, it was yet more tolerable than the acquisition of the whole monarchy in the name of a Bourbon J prince, which the opening of the succession without previous airangement was likely to produce. They at least who shrunk from the thought of another war, and studiously depreciated the value of Continental alli- ances, were the last who ought to have ex- claimed against a treaty which had been ratified as the sole means of giving us some- ' thing like security without the cost of fight- ing for it. Nothing, therefore, could be more unreasonable than the clamor of a : Tory House of Commons in 1701 (for the malcontent Whigs were now so consoUdated with the Tories as in general to bear their name) against the partition ti-eaties : nothing more unfair than the impeachment of the four lords, Portland, Ort'ord, Soraers, and Halifax, on that account. But we must at the same time remark, that it is more easy to vindicate the partition treaties them- selves, than to reconcile the conduct of the king and of some others with the principles established in our Coustitutioa. William had taken these important negotiations whol- ly into his own hands, not even communi- cating them to any of his English ministers, except Lord Jersey, until his resolution was finally settled. Lord Somers, as chancel- lor, had put the great seal to blank powers, as a legal authority to the negotiators, which evidently could not be valid, unless on the dangerous principle that the seal is conclu- Bive against all exception.* He had also sealed the ratification of the ti'eatj-, though not consulted upon it, and though he seems to have had objections to some of the tenns ; and in both instances he set up the king's command as a sufficient defense. The ex- clusion of all those whom, whether called pri^■y or cabinet counselors, the nation holds responsible for its safety, from this gi-eat ne- gotiation, tended to throw back the whole executive government into the single will of the sovereign, and ought to have exas- perated the House of Commons far more * See Speaker Onslow's Note on Bnrnet (Osf. edit., iv., 468), and Lord Hardwicke's hint of his father's opinion. — Id., 473. Bat see, also. Lord Somers's plea as to tliis. — State Trials, xiii., 267. than the actual treaties of partition, which may probably have been the safest choice in a most peiilous condition of Europe. The impeachments, however, were in most respects so ill substantiated by proof, that they have generally been reckoned a dis- graceful instance of party spirit.* The Whigs, such of them, at least, as continued to hold that name in , „ Improve- honor, soon forgave the mistakes menu in th« and failings of their great deliver- under Wi'u" er ; and, indeed, a high regard for the memory of William HL may just- ly be reckoned one of the tests by which genuine Whiggism, as opposed both to Tory and Republican principles, has always been recognized. By the opposite party he was rancorously hated ; and their malignant cal- umnies still sully the stream of history. f * Pari. Hist. State Trials, xiv., 233. The let- I ters of William, published in the Hardwicke State J Papers, are both the most aathentic and the most satisfactory explanation of his policy during the three momentous years that closed the seventeenth ] century. It is said, in a note of Lord Hardwicke I on Burnet (Oxford edit., iv., 417) (from Lord Som- ' ers's papers), that when some of the ministers ; objected to parts of the treaty, Lord Portland's 1 constant answer was, that nothing could be al- I tared ; upon which one of them said, if that was j the case, he saw no reason why they should be ! called together. And it appears by the Shrews- I bury Papers, p. 371, that the duke, though secre- tary of state, and in a manner prime minister, was entirely kept by the king out of the secret of the I negotiations which ended in the peace of Rys- 1 wick : whether, after all, there remained some I lurking distrust of his fidelity, or from whatever other cause this took place, it was very anomalous j and unconstitutional. And it must be owned, that I by this sort of proceeding, which could have no sufficient apology but a deep sense of the unwor- thiness of mankind, William brought on himself ' much of that dislike which appears so ungrateful ! and unaccountable. ] As to the impeachments, few have pretended to j justify them ; even Ralph is half ashamed of the I party he espouses vrith so little candor toward their adversaries. The scandalous conduct of the Tories in screening the Earl of Jersey, while they , impeached the Whig lords, some of whom had ■ really borne no part in a measure he had promoted, I sufficiently displays the factiousness of their mo- ! fives. — See Lord Haversham's speech on this, , Pari. Hist., 1293. I t Bishop Fleetwood, in a sermon preached in I 1703, says of William, " whom all the world of friends and enemies knew how to value, except a feu- Enelish urretthes." — Kennet, 640. Boyer, in i his History of the Reign of Queen Anne, p. 12, says that the king spent most of his private for- tune, computed at no less than two millions, in the Will. III.] FROM HENRY VII. TO GEORGE II. 573 Let us leave such as prefer Charles I. to i William III. to the enjoyment of prejudices which are not likely to be overcome by ar- gument; but it must ever be an honor to the English crown that it has been worn by so great a man. Compared with him, the statesmen who surrounded his throne, the Sunderlands, Godolphins, and Shrewsburys, even the Somerses and Montagues, sink into insignificance. He was, in truth, too gi'eat, not for the times wherein he was called to action, but for the peculiar condi- tion of a king of England after the Revolu- tion ; and as he was the last sovereign of tliis country whose understanding and en- ergy of character have been veiy distin- guished, so was he the last who has encoun- tered the resistance of his Parliament, or stood apart and undisguised in the mainte- nance of his own jirerogative. His reign is, no doubt, one of the most important in our Constitutional historj-, both on account of its general character, which I have slightly sketched, and of those beneficial alterations in om- law to which it gave rise. These now call for our attention. The enormous duration of seventeen Bill for tri- 5'^<''i'S' for which Charles H. pro- ennial Par- tracted his second Parliament, lameuts. j-jjg thoughts of all who desired improvements in the Constitution toward some limitation on a prerogative which had not hitherto been thus abused. Not only the continuance of the same House of Commons during such a period destroyed the connection between the people and their representatives, and laid open the latter, without responsibility, to the corruption which was hardly denied to prevail ; but the privilege of exemption from civil process made needy and worthless men secure against tlieir creditors, and desirous of a seat in Parliament as a complete safeguard to fraud and injustice. The term of three years api)eared sufficient to establish a con- trol of the electoral over the representative body, without recurring to the ancient but inconvenient scheme of annual Parliaments, which men enamored of a still more popu- lar form of government than our own were eager to recommend. A bill for this pur- pose was brought into the House of Lords in December, 1089, but lost by the proroga- service of the Eiiirlish iiation. I should be glad to have found this vouched by better authority. tion.* It passed both Houses early in 1693, the Whigs generally supporting, and the Tories opposing it ; but on this, as on many other great questions of this reign, the two parties were not so regularly arrayed against each other as on points of a more personal nature. f To this bill the king refused his assent : an exercise of pi'erogative which no ordinary circumstances can reconcile either with prudence or with a constitutional ad- ministration of government, but which was too common in this reign. But the Com- mons, as it was easy to foresee, did not abandon so important a measure ; a similar bill received the royal assent in November, 1694. t By the Triennial Bill it was simply provided that every Parliament should cease and determine within three years from its meeting. The clause contained in the act of Charles II. against the intei-mission of Parliaments for more than three years is repeated ; but it was not thought necessary to revive the somewhat violent and perhaps impracticable provisions by which the act of 1641 had secui-ed their meeting, it being evident that even annual sessions might now be relied upon as indispensable to the ma- chine of government. This annual session of Parliament was rendered necessary, in the first place, by the strict appropriation of the revenue ac- cording to votes of supply. It was secured, next, by passing the Mutiny Bill, under which the army is held together, and sub- jected to military discipline, for a short term, seldom or never exceeding twelve months. These are the two effectual securities against military power ; that no pay can be issued to the troops without the previous authori- zation by the Commons in a committee of supply, and by both Houses in an act of ap- propriation ; and that no officer or soldier can be punished for disobedience, nor any court-martial held, without the annual re- enactment of the Mutiny Bill. Thus it is strictly true that, if the king were not to summon Parliament every year, his army would cease to have a legal existence, and the refusal of either House to concur in the Mutiny Bill would at once wrest the sword out of his gi'asp. By the Bill of Rights, it is declared unlawful to keep any forces in time of peace without consent of Parlia- * Lords' Journals. t Pari. Hist., 754 t 6 W. & M., c. 2. 57^ CONSTITUTIONAL HISTORY OF ENGLAND [Chap. XV. ment. This consent, by an invariable and wholesome usage, is given only from year to year ; and its necessity may bo consid- ered, perhaps, the most powerful of those causes which have ti'ansfeiTcd so much even of the executive power into the management of the two houses of Parliament. The reign of William is also distinguish- Law of ed by the provisions introduced into treason. fgj. j-j^q security of the sub- ject against iniquitous condemnations on the charge of high treason, and intended to perfect those of earlier times, which had proved insufficient against the partiality of judges. But upon this occasion it will be necessary to take up the history of our con- stitutional law on this important head from the beginning. In the earlier ages of our law, the crime of high treason appears to have been of a vague and indefinite nature, determined only by such arbitrary construction as the cir- cumstances of each particular case might suggest. It was held treason to kill the king's father or his uncle ; and Mortimer was attainted for accroaching, as it was called, royal power ; that is, for keeping the administration in his own hands, though without violence tovvai-d the reigning prince. But no people can enjoy a free Constitution, imless an adequate security is furnished by their laws against this discretion of judges in a matter so closely connected with tlie mutual relation between the government and its subjects. A petition was according- ly presented to Edward III. by one of the best Parliaments that ever sat, requesting that, "whereas the king's justices in differ- ent counties adjudge men indicted before them to be traitors for divers matters not known by the Commons to be treasonable, the king would, by his council, and the no- bles, and learned men (les grands et sages) of the land, declare in Parliament what should be held for treason." The answer to this petition is in the words of the ex- i.sting statute, which, as it is by no means so prolix as it is important, I shall place be- fore the reader's eyes. " Whereas divers opinions have been be- Stiitute of fore this time in what case trea- Edward III. ^qj, shall be said, and in what not ; the king, at the request of the Lords and Commons, hath made a declaration in the manner as hereafter followeth ; that is to say, when a man doth compass or imagine the death of our lord the king, of my lady his queen, or of their eldest .son and heir : or if a man do violate the king's companion or the king's eldest daughter unmaiTied, or the wife of the king's eldest son and heir : or if a man do levy war against our lord the king in his realm, or be adherent to the king's enemies in his realm, giving to them aid and comfort in the realm or elsewhere, and thereof be provably attainted of open deed by people of their condition ; and if a man counterfeit the king's gi-eat or privy seal, or his money ; and if a man bring false money into this realm, counterfeit to the money of England, as the money called Lusheburg, or other like to the said money of England, knowing the money to be false, to merchandise or make payment in deceipt of our said lord the king and of his people ; and if a man slay the chancellor, treasurer, or the king's justices of the one bench or the other, justices in eyre, or justices of assize, and all other justices assigned to hear and determine, being in their place do- ing their offices ; and it is to be understood, that in the cases above rehearsed, it ought to be judged treason which extends to our lord the king and his royal majesty. And of such treason the forfeiture of the escheats pertaineth to our lord the king, as well of the lands and tenements holdea of others as of himself"* It seems impossible not to observe that the want of distinct arrangement Its construc- natural to so unphilosophical an tive jnterpre 11.1 1 c tatioQ. age, and which renders many oi our old statutes very confused, is eminent- ly displayed in this strange conjunction of offenses, where to counterfeit the king's seal, which might be for the sake of private fraud, and even his coin, which must be so, is ranged along with all that really endan- gers the established government, with con- spiracy and insurrection. But this is an objection of little magnitude, compared with one that arises -out of an omission in enu- merating the modes whereby treason could be committed. In most other offenses, the intention, however manifest, the contriv- ance, however deliberate, the attempt, how- ever casually rendered abortive, form so many degi'ees of malignity, or at least of mischief, which the jurisprudence of most ' Rot. Pari., ii., 239. 3 Inst., 1. Will. Ill ] FROM HENRY VII. TO GEORGE II. 575. countrie.'!, aiKl none more, at least former- | ly. tlinii EnglntuI, has been accustomed to i distinguish from the ])erpetrated action by awarding an inferior punishment, or even none at all. Nor is this distinction merely founded on a difference in the moral indig- nation with which we are impelled to re- gard an inchoate and a consummate crime, but is warranted by a principle of reason, since the penalties attached to the complet- ed offense spread their terror over ail the machinations preparatory to it; and he who fails in his stroke has had the murderer's fate as much before his eyes as tVie more dextrous assassin ; but those who conspire against the constituted government connect in their sanguine hope the assurance of im- pimity with the execution of their crime, and would justly deride the mockery of an accusation which could only be preferred against them when their banners were un- furled, and their force arrayed. It is as reasonable, therefore, as it is conformable to the usages of every couutiy, to place con- spiracies against the sovereign power upon the footing of actual reijellion, and to crush those by the penalties of treason who, were the law to wait for their opportunity, might silence or pervert the law itself. Yet in this famous statute we find it only declared treasonable to compass or imagine the king's death, while no project of rebellion appears to fall within the letter of its enactments, unless it ripen into a substantive act of lev- ying war. We may be, perhaps, less inclined to at- tribute this material omission to the laxity which has been already remarked to bo us- ual in our older laws, than to apprehensions entertained by the barons that, if a mere design to levy war should be rendered trea- sonable, they might be exposed to much false testimony and arbitrary construction ; but strained constructions of this veiy statute, if such were their aim, they did not pre- vent. Without adverting to the more ex- ti'avagant convictions under tliis statute in some violent reigns, it gradually became an established doctrine with lawyers, that a conspiracy to levy war against the king's person, though not in itself a distinct treas- on, may be given in evidence as an overt act of compassing his death. Great as the authorities may be on which this depends, and reasonable as it surely is that such of- fenses should he brought within the pale of high treason, yet it is almost necessary to confess that this doctrine appears utterly irreconcilable with any fair interpretation of the statute. It has, indeed, by some, been chiefly confined to cases where the attempt meditated is directly against the king's person, for the purpose of deposing him, or of compelling him, while under ac- tual duress, to a change of measures; and this was construed into a compassing of his death, since any such violence must endan- ger his life, and because, as has been said, the prisons and graves of princes are not very distant.* But it seems not very reas- onable to fomid a capital conviction on such a sententious remark; nor is it by any means true that a design against a king's life is necessarily to be inferred from the attempt to get possession of his person. So far, indeed, is this from being a general rule, that in a multitude of instances, especially during the minority or imbecility of a king, the purposes of conspirators would bo whol- ly defeated by the death of the sovereign whose name they designed to employ. But there is still less pretext for applying the same construction to schemes of insurrec- tion, when the royal person is not directly the object of attack, and where no circum- * 3 last., 12. 1 Hale's Pleas of the Crown, 120. Foster, 195. Coke lays it down positively, p. 14, that a conspiracy to levy war is not high treason, as an overt act of compassing the king's death. " For tliis were to confound the several classes or membra dividentia." Hale objects that Coke him- self cites the case of Lords Essex and Southamp- ton, which seems to contradict that opinion. But it may he answered, in the first place, that a con- spiracy to levy war was made high ti-eason dm-ing tlio life of Elizabeth; and secondly, tliat Coke's words as to that case are, tliat they " intended to go to the court wliere the queen was, and to have taken her into their power, and to have removed divers of her council, and for thai end did assemble a midlilude of people: this being raised to the end aforesaid, was a suiBcieut overt act of compassing the death of the queen." The earliest case is that of Storie, who was convicted of compassing the queen's death on evidence of exciting a foreign power to invade the kingdom. But he was very obnoxious ; and the precedent is not good. — Hale, 122. It is also held that an actual levj-ing war may he laid as an overt act of compassing the king's death, which indeed follows a fortiori from the for- mer proposition ; provided it be not a constructive rebellion, but one really directed against the royal authority. — Hale, J 23. 576 CONSTITUTIONAL HISTORY OF ENGLAND [Chap. XV. stance indicates any hostile intention toward bis safety. This ample extension of so pe- nal a statute was first given, if I am not mis- taken, by the judges in 1663, on occasion of a meeting by some persons at Farley Wood in Yorkshu-e,* in order to concert measures for a rising ; but it was afterward confirmed in Harding's case, immediately after the Revolution, and has been repeat- edly laid down from the bench in subsequent proceedings for treason, as well as in treat- ises of very great authority. f It has, there- fore, all the weight of established precedent; yet I question whether another instance can be found in our jurisprudence of giving so large a construction, not only to a penal, but to anj- other statute. t Nor does it speak in favor of this construction that temporary laws have been enacted on various occasions to render a conspiracy to levy war ti-eason- able ; for which purpose, according to this current doctrine, the statute of Edward III. needed no supplemental provision. Such acts were passed under Elizabeth, Charles II., and George III., each of them limited to the existing reign. § But it is veiy sel- dom that, in an hereditary monarchy, the reigning prince ought to be secured by any peculiar provisions; and though the remark- * Hale, 121. t Foster's Disconrse on High Treason, 196. State Trials, xii., 646, 790. 818; xiii., 62 (Sir John Friend's case), et alibi. This important question having arisen on Lord Russell's trial, gave rise to a controversy between two eminent lawyers, Sir Bartholomew Shower and Sir Robert Atkins ; the former maintaining, the latter denjing, that a con- spiracy to depose the king and to seize his guards was an overt act of compassing his death. — State Trials, ix., 719, 818. See, also, Phillipps's State Trials, ii., 39, 78 ; a work to which I might have refeiTed in other places, and which shows the well-known judgment and impartiality of the author. i In the whole series of authorities, however, on this subject, it will be found that the probable dan- ger to the king's safety from rebellion was the ground-work upon which this constructive treason rested; nor did either Halo or Foster, Pember- ton or Holt, ever dream that any other death was intended by the statute than that of nature. It was reser\'ed for a modem crown lawyer to resolve this language into a metaphysical personification, and to argue that the king's person being inter- woven with the state, and its sole representative, any conspiracy against the Constitution must of its own nature be a conspiracy against his life. — State Trials, xxiv., 1183. § 13 Eliz., c. 1. 13 Car. XL, c. 1. 36 Geo. III., c. 7. i able circumstances of Elizabeth's situation I exposed her government to unusual perils, j there seems an air of adulation or absurdity : in the two latter instances. Finally, the ' act of 57 Geo. III., c. 6, has confirmed, if not extended, what stood on rather a pre- I carious basis, and rendered perpetual that I of 3G Geo. III., c. 7, which enacts " that, ' if any person or persons whatsoever, dur- ing the hfe of the king, and until the end of 1 the next session of Parliament after a de- I mise of the crown, shall, within the realm or without, compass, imagine, invent, de- I vise, or intend death or destruction, or any j bodily harm tending to death or destruction, I maim or wounding, imprisonment or re- j straint of the person of the same our sover- , eign lord the king, his heirs and successors, I or to deprive or depose him or them from ! the style, honor, or kingly name of the im- I perial crown of this realm, or of any other of his majesty's dominions or countries, or to levy war against his majesty, his heirs and successors, within this realm, in order, by force or constraint, to compel him or them to change his or their measures or counsels, or in order to put any force or constraint upon, or to intimidate or over- awe, both Houses, or either house of Par- liament, or to move or stir any foi'eigner or stranger with force to invade this realm, or any other his majesty's dominions or coun- tries under the obeisance of his majesty, his heirs and successors : and such cona- passings, imaginations, inventions, devices, and intentions, or any of them, shall ex- press, uttei", or declare, by publishing any printing or writing, or by any overt act or deed ; being legally convicted thereof upon the oaths of two lawful and credible wit- nesses, shall be adjudged a traitor, and suf- fer as in cases of high treason." This from henceforth will become our standard of law in cases of treason, instead of the statute of Edward HI., the latterly received interpretations of which it sanc- tions and imbodies. But it is to be noted as the doctrine of our most approved au- thorities, that a conspiracy for many pur- poses which, if carried into ellect, would incur the guilt of treason, will not of itself amount to it. The constructive interpreta- tion of compassing the king's death appears only applicable to conspiracies, whereof the intent is to depose or to use personal com- Will. UL] FROM HENKY VII. TO GEORGE II. 577 pulsion toward him, or to usurp the admin- istiation of his government.* But though insurrections in order to throw down all in- cisures, to alter the established law or change religion, or in general for the Refor- mation of alleged grievances of a public na- ture, wherein the insurgents have no spe- cial interests, are in themselves treasonable, yet the previous concert and conspiracy for such purpose could, under the statute of Edward III., onlj' pass for a misdemeanor. Hence, while it has been positively laid down that an attempt by intimidation and violence to force the repeal of a law is high treason,! though directed rather against the two hou.ses of Parliament than the king's person, the judges did not venture to de- clare that a mere conspiracy and consulta- tion to raise a force for that purpose would amount to that offense. t But the statutes of 36 and 57 Geo. III. determine the in- tention to levy war, in order to put any force upon or to intimidate either house of Parliament, manifested by an overt act, to be treason, and so far have undoubtedly ex- tended the scope of the law. We may hope that so ample a legislative declaration on the law of treason will put an end to the pre- posterous interpretations which have found too much countenance on some not very distant occasions. The crime of compass- ing and imagining the king's death must be manifested by some overt act ; that is, there must be something done in execution of a traitorous purpose; for, as no hatred toward the person of the sovereign, nor any long- ings for his death, are the imagination which tlie law here intends, it seems to follow that loose words or writings, in which such hos- tile feelings may be imbodied, unconnected ■with any positive design, can not amount to treason. It is now, therefore, generally agi'eed, that no words will constitute that offense, unless as evidence of some overt act of treason ; and the same apj)ears clear- ly to be the case with respect at least to un- published \\Titings.§ » Hale, 123. Foster, 213. t Lord George Gordon's case, State Trials, xxi., 649. t Hardy's case. Id., xxiv., 208. The language of Chief-justice Eyre is sufficiently remarkable. § Foster, 190. He seems to concur in Hale's opinion, that words which being spoken will not amount to an overt act to make good an indictment for compassing the king's death, vet if reduced into O o The second clause of the statute, or that which declares the levying of war against the king within the realm to be treason, has given rise, in some instances, to construc- tions hardly less strained than those upon compassing his death. It would, indeed, be a veiy narrow interpretation, as little re- quired by the letter as warranted by the reason of this law, to limit the expression of levying war to rebellions, whereof the deposition of the sovereign, or subversion of his government, should be the deliberate object. Force, unlawfully directed against the supreme authority, constitutes this of- fense ; nor could it have been admitted as an excuse for the wild attempt of the Earl of Essex, on this charge of levying war, that his aim was not to injure the queen's per- son, but to drive his adversaries from her presence. The only questions as to this kind of treason are, first. What shall be un- derstood by force ? and, secondly, Where it shall be construed to be directed against the government ? And the solution of both these, upon consistent principles, must so much depend on the circumstances which vary the character of almost eveiy case, that it seems natural to distrust the general max- ims that have been delivered by lawyers. Many decisions in cases of treason before the Revolution were made by men so serv- ile and corrupt, they violate so grossly all natural right and all reasonable interpreta- tion of law, that it has generally been ac- counted among the most important benefits of that event to have restored a jjurer ad- ministration of criminal justice. But, though the memory of those who pronounced these decisions is stigmatized, their authority, so far from being abrogated, has influenced later and better men ; and it is rather an unfortunate circumstance, that precedents which, from the character of the times when they occurred, would lose at present all re- spect, having been transfused into text-books, and formed, perhaps, the sole basis of subse- quent decisions, are still in not a few points writing, and published, will make such an overt act, " if the matters contained in them import such a compassing." — Hale's Pleas of Crown, 118. But this is indefinitely expressed, the words marked as a quotation looking like a truism, and contrary to the first part of the sentence ; and the case of Williams, under James I., which Hale cites in cor- roboration of this, will hardly be approved by any Constitutional lawyer. 578 CON'STITUTIONAL HISTORY OF EXGLA>rD [Chap. XV. the invisible foundation of our law. No lawyer, I conceive, prosecuting for high treason in this age. would rely on the case of the Duke of Norfolk under Elizabeth, or that of Williams under James I., or that of Benstead under Charles I. : but he would certaiuly not fail to dwell on the authorities of Sir Edward Coke and Sir Matthew Hale. Yet these eminent men, and especially the latter, aware that our law is mainly built on adjudged precedent, and not daring to reject that which they would not have them- selves asserted, will be found to have rather timidly exercised their judgment in the con- struction of this statute, yielding a defer- ence to former authority which we have transferred to their own. These observations are particularly ap- plicable to that class of cases so repugnant to the general understanding of mankind, and, I believe, of most lawyers, wherein trifling insurrections for the purpose of de- stroying brothels or meeting-houses have been held treasonable under the clause of levying war. Nor does there seem any ground for the defense which has been made for this construction, by taking a distinction, that although a rising to effect a paitial end by force is only a riot, yet, where a general purpose of the kind is in view, it becomes rebellion ; and thus, though to pull down the inclosures in a single manor be not treason against the king, yet to destroy all inclosures throughout the kingdom would be an in- fringement of his sovereign {wwer: for. however solid this distinction may be, yet in the class of cases to which I allude, this general purpose was neither attempted to lie made out in evidence, nor rendered prob- able by the circumstances ; nor was the dis- tinction ever taken upon the several trials. A few apprentices rose in London in the reign of Charles II., and destroyed some brothels.* A mob of watermen and others, at the time of Sacheverell"s impeachment, set on fire several Dissenting meeting- houses, f Every thing like a formal attack * Hale, 134. State Trials, vu, 879. It is ob- servable that Hale himself, as chief baron, differed from the other jad^es in this case. t This is the well-kDowD case of Damaree and Parchase. State Trials, it., 520. Foster. -213. A rabble bad attended Sacheverell from Westmin- ster to his lodginffs in the Temple. Some among Siem proposed to pull down the meeting-booses : a cry was raised, and several of these were de- ] on the established government is so much excluded in these instances by the very na- ture of the offense and the means of the of- fenders, that it is impossible to withhold our reprobation from the original decision, upon which, with too much respect for unreason- able and unjust authority, the later cases have been established. These, indeed, still continue to be cited as law : but it i.s much to be doubted whether a conviction for treason will ever again be obtained, or even sought for, under similar circumstances. One reason, indeed, for this, were there no weight in any other, might suffice : the pun- ishment of tumultuous risings, attended with violence, has been rendered capital by the riot act of George I. and other statutes ; so that, in the present state of the law, it is generaUy more advantageous for the gov- ernment to treat such an offense as felony than as treason. It might for a moment be doubted, T]f>oa the statute of Edward VI., whether the two witnesses whom the act requires must not depose to the same overt acts of treason ; but as this would give an undue security to con- spirators, so it is not necessarily implied by the expression ; nor would it be, indeed, the most unwarrantable latitude that has been given to this branch of penal law. to main- tain that two witnesses to any distinct acts comprised in the same indictment' would j satisfy the letter of this enactment. But a more wholesome distinction appears to have been taken before the Revolu- s.^nteof tion, and is established by the ^^'-'am UL I statute of William, that, although different I ■ i stroyed. It appeared to be their intention to pnll j down all within their reach. Upon this overt act of levying war the prisoners were convicted : some of the judges differing as to one of them, bat mere- ly on the application of the evidence to his case. Xotwithstanding this solemn decision, and the ap- probation with which Sir Michael Foster has j stamped it, some difficalty woald arise in distin- guishing this case, as reported, from many indict- ' ments nnder the riot art for mere felony ; and es- pecially from those of the Birmingham rioters in I 1791. where the similarity of motives, tboagfa the mischief in the latter instance was far more ex- tensive, woold naturally have suggested the same species of prosecution as was adopted against Da- I maree and Purchase. It may be remarked that neither of these men were executed ; which, noC- withstanding the sarcastic observation of Foster, might possibly be owing to an opinion, which ev- ery one but a 1awy-er most have entertained, that : their offense did not amount to treason. Wn.L. III.] FROM HENRY VII. TO GEORGE II. 579 overt acts may be proved by two witnesses, ; they must relate to the same species of | treason, so that one witness to an alleged act of compassing the king's death can not be conjoined with another deposing to an act of levying war, in order to make up the re- quired number.* As for the practice of courts of justice before the Restoration, it was so much at variance with all principles, | that few prisoners were allowed the benefit ' of this statute ;f succeeding judges fortu- ' nately deviated more from their predeces- j sors in the method of conducting trials than ! they have thought themselves at liberty to do in laying down rules of law. Nothing had brought so much disgrace on the councils of government and on the ad- ministration of justice, nothing had more forcibly spoken the necessity of a great j change, than the prosecutions for treason j during the latter years of Charles II., and, in i truth, during the whole course of our legal history. The statutes of Edward III. and Edward VI., almost set aside by sophistical constructions, required the corroljoration of some more explicit law ; and some peculiar securities were demanded for innocence against that conspii'acy of the court with the prosecutor which is so much to be dreaded in all ti'ials for political crimes. Hence the attainders of Russell, Sidney, Cornish, and Armstrongwere I'eversedby the Convention Parliament without opposition ; and men at- tached to liberty and justice, whether of the Whig or Tory name, were anxious to pre- vent any future recurrence of those iniqui- tous proceedings, by which the popular frenzy at one time, the wickedness of the court at another, and in each instance with the co-operation of a servile bench of judges, had sullied the honor of English justice. A better tone of political sentiment had begun indeed to prevail, and the s])irit of the people must ever be a more effectual security than the virtue of the judges ; yet, even after the Revolution, if no unjust or illegal convictions in cases of treason can be imputed to our tribunals, there was still not a little of that rudeness toward the prisoner, and manifes- tation of a desire to interpret all things to his prejudice, which had been more gi'ossly displayed by the bench under Charles II. The Jacobites, against whom the law now * W. III., c. 3, $ 4. Poster, 257. t Foster, 234. directed its terrors, as loudly complained of Treby and Pollexfen, as the Whigs had of Scroggs and Jefferies, and weighed the con- victions of Ashton and Anderton against those of Russell and Sidney.* Ashton was a gentleman, who, in company with Lord Preston, was seized in endeav- oring to go over to France with an invita- tion from the Jacobite party. The cotem- porary writers on that side, and some his- torians who incline to it, have I'epresented his conviction as grounded upon insufificient, because only upon presumptive, evidence. It is true that in most of our earlier cases of treason, treasonable facts have been di- rectly proved ; whereas it was left to th© juiy in that of Ashton, whetlier they were satisfied of his acquaintance with the con- tents of certain papers taken on his person. There does not, however, seem to be any reason why presumptive inferences are to be rejected in charges of treason, or why they should bo drawn with more hesitation than in other grave offenses ; and if this be admitted, there can be no doubt that the evidence again.st Ashton was such as is or- dinarily reckoned conclusive. It is stronger than that offered for the prosecution against O'Quigley at Maidstone in 1798, a case of the closest resemblance ; and yet I am not aware that the verdict in that instance was thought open to censure. No judge, how- ever, in modern times, would question, mucli less rely upon, the prisoner, as to material points of his defense, as Holt and Pollexfen did in this trial ; the practice of a neighbor- ing kingdom, which, in our more advanced sense of equity and candor, we are agreed to condemn. f It is, perhaps, less easy to justify the con- duct of Chief-justice Treby in the tibial of * "Would you have trials secured?" says the author of the Jacobite Principles Vindicated (Som- ers Tracts, 10, 526). " It is the interest of all par- ties care should be taken about them, or all pai-ties will suffer in their turns. Plunket, and Sidney, and Ashton were doubtless all murdered, though they were never so guilty of the crimes wherewith they were charged ; the one tried twice, the other found guilt}' upon one evidence, and the last upon nothing but presumptive proof" Even the prosti- tute lawyer. Sir Bartholomew Sliower. had the as- surance to complain of uncertainty in the law of treason. — Id.. 572. And Roger North, in his Ex- amen, p. 411, labors hard to show that the evidence in Ashton's case was slighter than in Sidney's. t State Trials, xii., 646. See 668 and 790. 580 CONSTITUTIONAL HISTORY OF ENGLAND [CHAr. XV- Anderton for printing a treasonable pamph- I let. Tlie testimony came very short of sat- isfactoiy proof, according to the established rules of P^nglish law, though by no means such as men in general would slight. It j chiefly consisted of a comparison between ' the characters of a printed work found con- cealed in his lodgings and certain types be longing to his press ; a comparison mani- festly less admissible than that of hand- writing, which is always rejected, and, in- deed, totally inconsistent with the rigor of English proof. Besides the common ob- jections made to a comparison of hands, and which apply more forcibly to printed char- acters, it is manifest that types cast in the same font must always be exactly similar, i But, on the other hand, it seems unreason- able absolutely to exclude, as our courts have . done, the comparison of hand-writing as in- admissible evidence ; a rule which is every day eluded bj' fi-esh rules, not much more ! rational in themselves, which have been i invented to get rid of its inconvenience. There seems, however, much danger in the I construction which draws printed libels, un- connected with any conspiracy, within the pale of treason, and especially the treason of compassing the king's death, unless where they directly tended to his assassination. No later authority can, as far as I remember, be adduced for the prosecution of any libel as treasonable, under the statute of Edward III. ; but the pamphlet for which Anderton was convicted was certainlj- full of the most audacious Jacobinism, and might perhaps fall, by no unfair construction, within the charge of adhering to the king's enemies, since no one could be more so than James, whose design of invading the i-ealm had been frequently avowed by himself.* A bill for regulating tiials upon charges of high treason passed the Commons with slight resistance from the crown lawyers in 1691.f The Lords introduced a provision in their own favor, that upon the trial of a peer in the court of the high steward, all * State Trials, xii., 1245. Ralph, 420. Somers Tracts, x., 472. The Jacobites took a very frivo- lous objection to the eonWction of Auderton, that printins could not be treason within the statute of Edward III., because it was not invented for a century afterward. According to this rule, it could not be ti eason to shoot the king with a pistol, or poison him with an American drug. t Pari. Hist., v., 698. such as were entitled to vote should be reg- ularly summoned, it having been the prac- tice to select twenty-three at the discretion of the crown. Those who wished to hinder the bill availed themselves of the jealousy which the Commons in that age entertained of the upper house of Parliament, and per- suaded them to disagree with this just and reasonable amendment.* It fell to the gi'ound, therefore, on this occasion ; and, though more than once revived in subse- quent sessions, the same difterence between the two Houses continued to be insupera- ble.f In the new Parliament that met in 1695, the Commons had the good sense to recede from an irrational jealousy. Not- withstanding the reluctance of the ministry, for which, perhaps, the very dangerous po- sition of the king's government furnishes an apology, this excellent statute was enacted as an additional guarantee (in such bad times as might again occur) to those who are prom- inent in their country's cause, against the great danger of false accusers and iniquitous judges. t It provides that all persons in- dicted for high ti'eason shall have a copy of their indictment delivered to them five days before their trial, a period extended by a subsequent act to ten days, and a copy of the panel of jurors two days before their trial; that they shall be allowed to have their witnesses examined on oath, and to make their defense by counsel. It clears up any doubt that could be pretended on the statute of Edward VI., by requiring two witnesses, either both to the same overt act or the first to one, the second to another overt act of the same treason (that is, the same kind of treason), unless the party shaD volunt£irily confess the charge. § It limits * Pari Hist., v., 675. t Id., 712, 737. Commons' Journals, Feb. 8, 1695. t Pari. Hist., 963. Journals, 17th of Feb., 1696. Stat. 7 Wm. III., c. 3. Though the court opposed this bill, it was certainly favored by the zealous Whiss as much as by the opposite party. § \Vhen several persons of distinction were ar- rested on account of a Jacobite conspiracy in 1690, there was but one witness against some of them. The judges were consulted whether they could be indicted for a high misdemeanor on this single tes- timony, as Hampden had been in 16S5, the Attor- ney-general Treby maintaining this to be lawful. Four of the judges were positively against this, two more doubtfuUy the same way, one altogether doubtful, and three in favor of it. The scheme was Will, in.] FROM HENRY VII. TO GEORGE II. 581 pi-osecutions for treason to the term of thrre ] years, except in the case of an attempted a.ssassiiiation on the king. It includes the contested provision for the trial of peers by all who have a right to sit and vote in Par- liament. A later statute, 7 Anne, c. 21, which may be mentioned here as the com- plement of the former, has added a peculiar privilege to the accused, hardly less material than any of the rest. Ten days before the tiial, a list of the witnesses intended to be brought for proving the indictment, with their professions and places of abode, must be delivered to the prisoner, along with the copy of the indictment. The operation of this clause was suspended till after the deatli of the pretended Prince of Wales. Notwithstanding a hasty remark of Bur- net, that the design of this bill seemed to be to make men as safe in all treasonable prac- tices as possible, it ought to be considered a valuable accession to our constitutional law ; and no part, I think, of either statute will be reckoned inexpedient, when we reflect upon the histoiy of all nations, and more especial- ly of our own. The histoiy of all nations, and more especially of our own, in the fresh recollection of those who took a share in these acts, teaches us that false accusers are always encouraged by a bad government, and may easily deceive a good one. A prompt belief in the spies whom they per- haps necessarily employ, in the voluntary informers who dress up probable falsehoods, is so natural and constant in the offices of ministers, that the best are to l)e heard with suspicion when they bring forward such testimony. One instance, at least, had oc- curred since the Revolution, of charges un- questionably false in their specific details, prefeired against men of eminence by im- postoi's who panted for the laurels of Oates and Turberville ;* and as men who are ac- cused of conspiracy against a government are generally such as are beyond question disaffected to it, the indiscriminating temper of the prejudging people, from whom juries must be taken, is as much to be apprehend- ed, when it happens to be favorable to au- thority, as that of the government itself, and requires as much the best securities, iraper- very properly abandoned ; and at present, I sup- pose, nothing can be more established than the negative. — Dalrj'mple, Append., 186. ' State Trials, xii., 1051. feet as the best are, which prudence and patriotism can furnish to innocence. That the prisoner's witnesses should be examined on oath will of course not be disputed, since by a subsequent statute that strange and un- just anomaly in our criminal law has been removed in all cases as well as in treason ; but the judges had sometimes not been ashamed to point out to the jury, in deroga- tion of the credit of those whom a prisoner called in his behalf, that they were not speak- ing under the same sanction as those for the crown. It was not less reasonable that the defense should be conducted by counsel, since that excuse which is often made for denying the assistance of counsel on charges of felony, namely, the moderation of pros- ecutors and the humanity of the bench, could never be urged in those political ac- cusations wherein the advocates for the prosecution contend with all their strength for victory ; and the impartiality of the court is rather praised when it is found than re- lied upon beforehand.* Nor does there lie, perhaps, any sufficient objection even to that which many dislike, which is more question- able than the rest, the furnishing a list of the witnesses to the prisoner, when we set on the other side the danger of taking away in- nocent lives by the testimony of suborned and infamous men, and remember, also, that a guilty person can rarely be ignorant of those who will bear witness against him ; or if he could, that he may alwaj's discover those who have been examined before the grand-jury. The subtlety of crown lawyers in draw- ing indictments for treason, and sometimes the willingness of judges to favor such pros- ecutions, have considerably eluded the chief difficulties which the several statutes appear * The dexterity with which Lord Shaftesbury (tlie author of the Characteristics), at that time in the House of Commons, turned a momentary con- fusion which came upon him while speaking on this hill, into an argument for extending the aid of covinsel to those who might so much more natural- ly he embarrassed on a trial for their lives, is well known. All well-infonned vsriters ascribe this to Shaftesbui-y. But Johnson, in the Lives of the Poets, has, through inadvertence, as I believe, given Lord Halifax (Montagu) the credit of it; and some have since followed him. As a complete refutation of this mistake, it is sufficient to say that Mr. Montagu opposed the bill. His name appears as a teller on two divisions, 31st of Dec, 1691, and 18th of Nov., 1692. 582 CONSTITUTIONAL HISTORY OF ENGLAND (Chap. XV! to throw ia their way. The government has at least had no reason to complain that the construction of those enactments has been too rigid. The overt acts laid in the indictment are expressed so generally that they give sometimes little insight into the pai'ticular circumstances to be adduced in evidence ; and, though the act of William is positive that no evidence shall be given of any overt act not laid in the indictment, it has been held allowable, and is become the con- stant practice, to bring forward such evi- dence, not as substantive charges, but on the pretense of its tending to prove certain other acts specially alleged. The disposi- tion to extend a constructive interpretation to the statute of Edward III. has continued to increase, and was carried, especially by Chief-justice Eyre in the trials of 1794, to a length at which we lose sight altogether of the plain meaning of words, and appar- ently much beyond what Pemberton, or even Jefferies, had reached. In the vast mass of circumstantial testimony which our modern trials for high treason display, it is sometimes difficult to discern whether the great principle of our law, requiring two witnesses to overt acts, has been adhered to ; for certainly it is not adhered to, unless such witnesses depose to acts of the prisoner, from which an inference of his guilt is im- mediately deducible.* There can be no doubt that state prosecutions have long been conducted with an urbanity and exterior moderation unknown to the age of the Stu- arts, or even to that of William ; but this may by possibility be compatible with very partial wresting of the law, and the substitution of a sort of political reasoning for that strict in- terpretation of penal statutes which the sub- ject has a right to demand. No confidence in the general integi-ity of a government, much less in that of its lawyers, least of all any belief in the guilt of an accused person, should beguile us to remit that vigilance which is peculiarly required in such cir- cumstances, f . * It was said by Scroggs and Jeiferies, that if one witness prove that A. bought a knife, and an- other that he intended to kill the king with it, these are two witnesses within the statute of Ed- ward VI. But this has been justly reprobated. t Upon some of the topics touched in the forego- ing pages, besides Hale and Foster, see Luder's Considerations on the Law of Treason in Levying War, and many remarks in Phillipps's State Tri- For this vigilance, and, indeed, for almo.st all that keeps up in us, permanently and eflectually, the spirit of regard to liberty and the public good, we must look to the unshackled and independent energies of the press. In the reign of William III., and through the influence of the popular prin- ciple in our Constitution, this finally became free. The Licensing Act, suffered to ex- pire in 1679, was revived in 1685 for seven years. In 1692, it was continued till the end of the session of 1693. Several at- tempts were afterward made to renew its operation, which the less courtly Whigs combined with the Tories and Jacobites to defeat.* Both parties, indeed, employed the press with gi-eat diligence in this reign ; but while one degenerated into malignant calumny and misrepresentation, the signal victory of liberal principles is manifestly due to the boldness and eloquence with which they were promulgated. Even during the existence of a censorship, a host of un- licensed publications, by the negligence or connivance of the officers employed to seize them, bore witness to the inefficacy of its restrictions. The bitterest invectives of Jacobitism were circulated in the first four years after the Revolution, f The liberty of the press consists, in a strict sense, merely in an exemp- Liberty of tion from the superintendence of a '^e press, licenser. But it can not be said to exist in any security, or sufficiently for its principal ends, where discussions of a political or re- ligious nature, whether general or particu- lar, are restrained by too narrow and severe limitations. The law of libel has always been indefinite ; an evil probably beyond any complete remedy, but which evidently renders the liberty of free discussion rather more precarious in its exercise than might als, besides much that is scattered through the notes of Mr. Howell's great collection. Mr. Phil- lipps's work, however, was not published till after my own was written. * Commons' Journals, 9th of Jan. and 11th of Feb., 1694-95. A bill to the same effect sent down from the Lords was thrown out, l~th of April, 1695. Another bill was rejected on the second reading in 1697.— Id.. 3d of April. t Somers Tracts, passim. John Dunton, the book- seller, in the History of his Life and Errors, hints that unlicensed books could be published by a douceur to Robert Stephens, the messenger of the press, whose business it was to inform against them. Will. III.] FROM HENRY VII. TO GEORGE II. 583 be wished. It appears to have been re- ceived doctrine in Westraiu.ster Hall before the Revolution, that no man might publish a writing reflecting on the government, nor upon the character, or even capacity and fitness, of any one employed in it. Nothing having passed to change the law, the law remained as befoi'e. Hence, in the case of Tutchin, it is laid down by Holt, that to possess the people of an ill opinion of the government, that is, of the ministry, is a li- bel ; and the attorney-general, in his speech for the prosecution, urges that there can be no reflection on those that are in office under her majesty, but it must cast some reflection on the queen who employs them : yet in this case the censure upon the ad- ministration, in the passages selected for prosecution, was merely general, and with- out reference to any person, upon which the counsel for Tutchin vainly relied.* It is manifest that such a doctrine was irreconcilable with the interests of any party out of power, whose best hope to re- gain it is commonly by prepossessing the nation with a bad opinion of their adversa- .ries. Nor would it have been possible for any ministry to stop the torrent of a free press, under the secret guidance of a pow- erful faction, by a few indictments for libel. They found it generally more expedient and more agreeable to borrow weapons from the same armory, and retaliate with unsparing invective and calumnj^ This was first practiced (first, I mean, with the avow- ed countenance of government) by Swift in the Examiner and some of his other writ- ings. And both parties soon went such lengths in this warfare, that it became tacit- ly understood that the public characters of statesmen, and the measures of adminstra- ■tion, are the fair topics of pretty severe at- tack.! Less than this, indeed, would not * State Trials, xiv., 1103, 1128. Mr. Justice Powell told the Rev. Mr. Stephens, in passing sen- tence on him for a libel on Harley and Marlborough, that to traduce the queen's ministers was a reflec- tion on the queen herself. It is said, however, that this and other prosecutions were generally blamed, for the public feeling was strong in favor of the liberty of the press. — Boyer's Reigu of dueen Anne, p. 286. t [In a tract called the " Memorial of the State of England," 170.5 (Somers Tracts, xii., 526), writ- ten on tlie Whig side, in answer to Drake's " Me- morial of the Church of England," we find a vin- dication of the press, which had been attacked, at have contented the political temper of the nation, gradually and without intermission becoming more democratical, and more ca- pable, as well as more accustomed, to judge of its general interests, and of those to whom they were intrusted. The just limit between political and private censure has been far better drawn in these later times, licentious as we still may justly deem the press, than in an age when courts of justice had not deigned to acknowledge, as they do at present, its theoretical liberty. No writer, except of the most broken reputa- tion, would venture at this day on the ma- lignant calumnies of Swift. Meanwhile, the judges naturally adhered to their established docti *ine, and Law of in prosecutions for political libels, I^'^'^'- were very little inclined to favor wliat they deemed the presumption, if not the licen- tiousness, of the press. They advanced a little further than their predecessors ; and, contrary to the piactice both before and after the Revolution, laid it down at length as an absolute principle, that falsehood, though alwfiys alleged in the indictment, was not essential to the guilt of the libel ; refusing to admit its truth to be pleaded, or given in evidence, or even urged by way of mitigation of punishinent.* But as the that time, by the Tories : " If the Whigs have their Observator, have not the Tories their Rehearsal? The Review does not take more liberty than the Whipping Post, nor is he a wilder politician than the Mercury ; and many will think it a meaner character for Ridpath to be Atwood's antagonist than to be author of the Flying Post." The reign of Anne was the era of periodical politics. Gutta cavat lapidem, non vi, sed sajpe cadendo. Wc well know how forcibly this line describes the ac- tion of the regular press. It did not begin to oper- ate much before 1704 or 170.">, when the Whigs came into ofllce, and the rejection of the Occasional Conformity Bill blew up a flame in the opposite party. But even then it was confined to periodical papers, such as the Observator or Rehearsal, for the common newspapers were as yet hardly at all political.— 1845.] * Pemberton, as I have elsewhere observed, permitted evidence to be given as to the tnith of an alleged libel in publishing that Sir Edmondhury Godfrey had murdered himself. And what may be reckoned more important, in a trial of the fa- mous Fuller on a similar charge, Holt repeatedly (not less than five times) offered to let him prove the truth if he could.— State Trials, xiv., 534. Bat on the trial of Franklin, in 1731, for publishing a libel in the Craftsman, Lord Raymond positively refused to admit of any evidence to prove the mat- ters to be true, and said he was ouly abidiug by 584 CONSTITUTIONAL EOSTOttY OF ENGLAND [Chap. XV. defendant could only be convicted by the verdict of a jmy, and jurors both partook of the general sentiment in favor of free discussion, and might in certain cases have acquired some prepossessions as to the real truth of the supposed libel, which the court's refusal to enter upon it could not remove, they were often reluctant to find a verdict of guilty ; and hence arose, by degrees, a sort of contention, which sometimes showed itself upon trials, and divided both the pro- fession of the law and the general public. The judges and lawyers, for the most part, maintained that the province of the jury was only to determine the fact of publica- tion ; and also whether what are called the innuendoes were properly filled up, that is, whether the libel meant that which it was alleged in the indictment to mean, not whether such meaning were criminal or innocent, a question of law which the court were exclusively competent to decide. That the jury might acquit at their pleas- ure was undeniable ; but it was asserted that they would do so in violation of their oaths and duty, if they should reject the opinion of the judge by whom they were to be guided as to the general law. Others of great name in our jurisprudence, and the majority of the public at large, conceiving that this would throw the liberty of the press altogether into the hands of the judges, maintained that tlie jury had a strict right to take the whole matter into their con- sideration, and determine the defendant's criminality or innocence according to the nature and c'u-cumstances of the publication. This controversy, which perhaps hardly arose within the period to which the pres- ent work relates, was settled by Mr. Fox's Libel Bill m IT 92. It declares the right of the jury to find a general verdict upon the whole matter : and though, from causes easy to explain, it is not drawn in the most intelligible and consistent manner, was cer- wbst had been formerly done in other cases of the like natare. — Id., xvii.. 659. [ • To make it a libel," says Powell in the case of the seven bishops. " it must be faUe, it most be scandaloos. and it mnst , tend to sedition. " — Id., xii.. -liT. In 1 Lord Ray- mond, -iio. we find a case where judgment was arrested on an indictment for a libel on persons ■■ to the jurors unknown."' because they could not properly say that the matter was false and scandal- ous, when they did not know the persons of whom it was spoken, nor could they say that any one was defamed by it. — liio.] tainly designed to turn the defendant's in- tention, as it might be laudable or innocent, seditious or malignant, into a matter of fact for their inquiry and decision. The Revolution is justly entitled to honor as the era of religions, in a far jui.j^oos greater degree than of civil Lberty. «>ieriuon. the privileges of conscience baring had do earlier Magna Charta and Petition of Right whereto they could appeal against encroach- ment. Civil, indeed, and religious Uberty had appeared, not as twin sisters and co- heirs, but rather in jealous and selfish riT- alry : it was in despite of the law, it was through infringement of the Constitution, by the court's connivance, by the dispens- " ing prerogative, by the declarations of in- dulgence under Charles and James, that some respite had been obtained from the tyranny which those who proclaimed their attachment to civil rights had always exer- cised against one class of separatists, and frequently against another. At the time when the Test Law was enacted, chiefly ^v^th a view against popery, but seriously affecting the Protestant Non- conformists, it was the intention of the House of Commons to afford relief to the latter by relaxing in some measure the strictness of the Act of Uniformity in favor of such ministers as might be induced to conform, and by granting an indulgence of worship to those who should persist in their separation. This bill, however, drop- ped in that session. Several more attempts at a union were devised by woitliy men of both parties in that reign, but with no suc- cess. It was the policy of the court to withstand a comprehension of Dissenters ; nor would the bishops admit of any conces- sion worth the other's acceptance. The High-Church party would not endure any mention of indulgence.* In the Parliament * See the pamphlets of that ase. passim. One of these, entitled The Zealous and Impartial Prot- estant. ISsl. the author of which, though well known, I can not recollect, after much invective, says, " Liberty of conscience and toleration are things only to be talked of and pretended to by those that are under; but none like or think it reasonable that are in authority. 'Tis an instru- ment of mischief and dissettlement to be courted by those who would have change, but do way de- sirable by such as would be quiet, and have the government undisturbed : for it is not connstent with public peace and safety without a standing; army, conventicles being eternal nurseries of aedi- Will. HI.] PROM HENRY VII. TO GEORGE II. 585 of 1680, a bill to relieve Protestant Dissent- ers from the penalties of the 35th of Eliz- tion and rebellion," p. 30. " To strive for tolera- tion," he says, iu another place, " is to contend agauist all government. It will come to this, whether there should be a government in the Church or not? for if there be a government, there must be laws ; if there be laws, there must be penalties annexed to the violation of those laws ; otherwise the government is precarious and at ev- ery man's mercy ; that is, it is none at all. . . . The Constitution should he made firm, whether with any alterations or without them, and laws put iu punctual, vigorous execution. Till that is done, all will signify nothing. The Church hath lost all through remissness and non-execution of laws ; and by the contrary course things must be reduced, or they never will. To what purpose are Parliaments so concerned to prepare good laws, if the officers who are intiiisted with the execution neglect that duty and let them lie dead ? This brings laws and government into contempt, and it were much bet- ter the laws were never made ; by these the Dis- senters are provoked, and being not restrained by the exacting of the penalties, they are fiercer and more bent upon their own ways than they would be otherwise. But it may be said the execution of laws of conformity raiseth the cry of persecu- tion; and will not that be scandalous? Not so scandalous as anarchy, schism, and eternal divi- sions and confusions both in Church and State. Bet- ter that the unruly should clamor, than that the regular should groan, and all should be undone," p. 33. Another tract, " Short Defense of the Chui'ch and Clergy of England, 1C79," declares for union (in his own way), but against a comprehen- sion, and still more a toleration. " It is observable that whereas the best emperors have made the severest laws against all manner of sectaries, Ju- lian the apostate, the most subtle and bitter enemy that Christianity ever had, was the man that set up this way of toleration," p. 87. Such was the temper of this odious faction ; and at the time they were instigating the government to fresh severi- ties, by which, I sincerely believe, they meant the pillory or the gallows (for nothing else was want- ing), scarce a jail in England was without Non- conformist ministers. One can hardly avoid re- joicing tliat some of these men, after the Revolu- tion, experienced, not, indeed, the persecution, but the poverty they had been so eager to inflict on others. The following passage from a very judicious tract on the other side, " Discourse of the Religion of England, lfi67," may deserve to be extracted: "Whether cogent reason speaks for this latitude, be it now considered. How momentous in the balance of tliis nation those Protestants are which are dissatisfied, in the present ecclesiastical pohty. They are every where spread through city and country ; they make no small part of all ranks and sorts of men ; by relations and commerce they are so woven into the nation's interest that it is not easy to sever them without unraveling the whole. They are not excluded from the nobiUty, among abeth, the most severe act in force against them, having passed both Houses, was lost oft' the table of the House of Lords at the moment that the king came to give his as- sent : an artifice by which he evaded the odium of an explicit refusal.* Meanwhile, the non-conforming ministers, and in many cases their followers, experienced a harass- ing persecution under the various penal laws that oppressed them ; the judges, especially in the latter part of this reign, when some good magistrates were gone, and, still more, the justices of the peace, among whom a High-Church ardor was prevalent, crowding the jails with the pious confessors of Puritanism. t Under so rigorous an ad- ministration of statute law, it was not un- natural to take the shelter offered by the Declaration of Indulgence ; but the Dis- senters never departed from their ancient abhorrence of popery and arbitrary power, and embraced the terms of reconciliation and alliance which the Church, in its distress, held out to them. A scheme of compre- hension was framed under the auspices of Archbishop Sancroft before the Revolution. Upon the completion of the new settlement, it was determined, with the apparent con- currence of the Church, to grant an in- dulgence to separate conventicles, and at the same time, by enlarging the terms of conformity, to bring back those whose dif- ferences were not irreconcilable within the pale of the Anglican communion. The Act of Toleration was jjassed with little difficulty, though not without mvn-murs of the bigoted churchmen. t It exempts from the penalties of existing statutes against sepasate conventicles, or absence from the established worship, such as should take the the gentry they are not a few ; but none are of more importance than they in the trading part of the people and those that hve by industiy, upon whose hands the business of the nation lies much. It hath been noted that some who bear them no good will have said that the very air of corpora- tions is infested with their contagion ; and in what- soever degree they are high or low, ordinarily for good understanding, steadiness, and sobriety, they are not inferior to others of the same rank and quality ; neither do they want the national courage of Englishmen," p. 23. * Pari. Hist., iv., 1311. Ralph, 559. t Baxter. Neal. Palmer's Nou-conforniist's Me- morial. } Pari. Hist., v., 2C3. Some of the Tories wished to pass it only for seven years. The High-Church pamphlets of the age gi-umble at the toleration. 586 CONSTITUTIONAL HISTOEY OF ENGLAND [Chap. XV. Oath of Allegiance, and subscribe the dec- laration against popery, and such ministers of separate congregations as should sub- scribe the Thirty-nine Articles of the Church of England, except thi'ee, and part of a fourth. It gives, also, an indulgence to Quakers without this condition. Meeting- houses are required to be registered, and are protected from insult by a penalty. No part of this toleration is extended to papists, or to such as deny the Trinity. We may justly deem this act a very scanty measure of religious liberty ; yet it proved more ef- fectual through the lenient and liberal policy of the eighteenth century ; the subscription to articles of faith, which soon became as obnoxious as that to matters of a more in- different nature, having been practically dispensed with, though such a genuine tol- eration as Christianitj' and philosophj' alike demand, had no place in our statute-book before the reign of George III. It was found more impracticable to over- come the prejudices which stood Attempt at , Comprehen. against any enlargement of the basis of the English Cliui'ch. The Bill of Comprehension, though nearly such as had been intended by the primate, and conformable to the plans so often in vain devised by the most wise and moder- ate churchmen, met with a veiy cold recep- tion. Those among the clergy who disliked the new settlement of the crown (and they were by far the gi'eater part) plaj-ed upon the ignorance and apprehensions of the gentry. The king's suggestion in a speech from the throne, that means should be found to render all Protestants capable of serving him in Ireland, as it looked toward a repeal or modification of the Test Act, gave offense to the zealous churchmen.* A clause pro- posed in the bill for changing the Oaths of Supremacy and Allegiance, in order to take away the necessity of receiving the sacra- ment in the Church as a qualification for office, was rejected by a great majority of the Lords, twelve Whig peers protesting. f Though the Bill of Comprehension propos- ed to Parliament went no further than to leave a few scrupled ceremonies at discre- tion, and to admit Presbyterian ministers into the Church without pronouncing on the invalidity of their former ordination, it * Bamet. Pari. Hist, 184. t Pari. Hist., 196. was mutilated in passing through the Upper House ; and the Commons, after entertain- ing it for a time, substituted an address to the king that he would call the house of Convocation " to be advised with in ecclesi- astical matters."* It was, of course, neces- sarj' to follow this recommendation. But the lower house of Convocation, as might be foreseen, threw every obstacle in the way of the king's enlarged policy. They chose a man as their prolocutor who had been forward in the worst conduct of the University of Oxford. They displayed in every thing a factious temper, which held the very names of concession and concilia- tion in abhoiTence.f Meanwhile, a com- mission of divines, appointed under the gfeat seal, had made a revision of the Liturgy, in order to eradicate eveiy thing which could give a plausible ground of offense, as well as to render the service more perfect. Those of the High-Church faction had soon seceded from this commission ;t and its de- liberations were doubtless the more honest and rational for their absence. But, as the complacence of Parliament toward ecclesi- astical authority had shown that no legis- lative measure could be forced against the resistance of the lower house of Convoca- tion, it was not thought expedient to lay before that ill-affected body the revised Liturgy, which they would have emploj-ed as an engine of calumny against the bishops and the crown. The scheme of compre- hension, therefore, fell absolutely and final- ly to the gi-ound.§ A similar relaxation of the terms of con- * Pari. Hist., 212, 216. t [The two houses of Convocation differed about their address to the king, thanking him for his message about Church reform. The Lower House thought that proposed by the bishops too compli- mentary- to the king and the Revolution ; one was at last agreed upon, omitting the panegj-rical pass- ages. See both in Wilkin's Concilia, iv., 620. — 1845.] t [Ralph, ii., 167. The words High and Low Church are said by Swift in the Examiner to have come in soon after the Revolution ; and probably they were not in common use before ; but I find " High Church ' named in a pamphlet of the reign of Charles II. It is in the Harleian Miscellany ; but I have not got any more distinct reference. — 1845.] 6 Burnet. Ralph. But a better account of what took place in the Convocation and among the com- missioners will be found in Kennet's Compl. Hist., 557, 558, (Sec. Will. III.] Schismofthe fovmity would, in the reign of non-jurors. Elizabeth, or even at the time of the Savoy Conferences, have brought back so large a majority of Dissenters that the separation of the remainder could not have afforded any color of alarm to the most jealous dignitary. Even now it is said that two thirds of the Non-conformists would have embraced the terms of reunion ; but the motives of dissent were already some- what changed, and had come to turn less on the petty scruples of the elder Puritans, and on the differences in ecclesiastical dis- cipline, than on a dislike to all subscriptions of faith and compulsory uniformity. The Dissenting ministers, accustomed to inde- pendence, and finding not unfrequently in the conti-ibutions of their disciples a better maintenance than court favor and private patronage have left for diligence and piety in the Establishment, do not seem to have much regretted the fate of this measure. None of their friends, in the most favorable times, have ever made an attempt to renew it. There are, indeed, serious reasons why the boundaries of religious communion should he as widely extended as is consist- ent with its end and nature, and among these the hardship and detriment of exclud- ing conscientious men from the raiuistry is not the least : nor is it less evident that from time to time, according to the progress of knowledge and reason, to remove defects and errors from the public service of the Church, even if they have not led to scan- dcil or separation, is the bounden duty of its governors. But none of these considerations press much on the minds of statesmen; and it was not to be expected that any ad- ministration should prosecute a religious re- form for its own sake, at the hazard of that tranquillity and exterior unity which is in general the sole end for which they would deem such a reform worth attempting : nor could it be dissembled that, so long as the endowments of a national church are sup- posed to require a sort of politic organiza- tion within the Commonwealth, and a busy spirit of faction for their security, it will be convenient for the governors of the state, whenever they find this spirit adverse to them, as it was at the Revolution, to pre- serve tlie strength of the dissenting sects as a counterpoise to that dangerous influence which in Protestant churches, as well as 587 that of Rome, has sometimes set up the in- terest of one order against that of tlie com- munity ; and though the Church of England made a high vaunt of her loyalty, yet, as Lord Shrewsbury told William of the To- ries in general, he must remember that he was not their king, of which, indeed, he had abundant experience. A still more material reason against any alteration in the public Liturgy and cere- monial religion at that feverish crisis, unless with a much more decided concurrence of the nation than could be obtained, was the risk of nourishing the schism of the non-ju- rors. These men went off from the Church on grounds merely political, or at most on the pretense that the civil power was in- competent to deprive bishops of their ec- clesiastical jurisdiction, to which none among the laity, who did not adopt the same polit- ical tenets, were likely to pay attention. But the established Liturgy was, as it is at present, in the eyes of the gi-eat majority, the distinguishing mark of the Anglican Church, far more, indeed, than episcopal government, whereof so little is known by the mass of the people that its abolition, if we may utter such a paradox, would make no perceptible difference in their religion. Any change, though for the better, would offend those prejudices of education and habit, which it requires such a revolutiona- ry commotion of the public mind as the six- teenth century witnessed, to subdue, and might fill the Jacobite conventicles with ad- herents to the old Church. It was already the policy of the non-juring clergy to hold themselves up in this respectable light, and to treat the Tillotsons and Burnets as equal- ly schismatic in discipline and unsound in theology. Fortun.itely, however, they fell into the snare which the Established Church had avoided ; and deviating, at least in their writings, from the received standard of An- glican orthodoxy, into what the people saw with most jealousy, a sort of approximation to the Church of Rome, gave their oppo- nents an advantage in controversy, and drew further from that part of the clergy who did not much dislike their political creed. They were equally injudicious and neglect- ful of the signs of the times, when they promulgated such extravagant assertions of sacerdotal power as could not stand with the regal supremacy, or any subordination FROM HENRY VII. TO GEORGE XL 588 CONSTITUTIONAL HISTORY OF ENGLAND [Chap. XV. to the state. It was plain, from the writ- ' ings of Leslie and other leaders of their par- | ty, that the mere restoration of the house | of Stuart would not content them, without undoing all that had been enacted as to the Church from the time of Heniy VIII. ; ' and thus the charge of innovation came ev- idently home to themselves.* The Convention Parliament would have acted a truly politic as well as magnanimous part in extending this boon, or, rather, this j right, of religious liberty to the members of that unfortunate Church, for whose sake ! the late king had lost his throne. It would , have displayed to mankind that James had fallen, not as a Catholic, nor for seeking to | bestow toleration on Catholics, but as a vio- j later of the Constitution. William, in all things superior to his subjects, knew that temporal, and especially militai-y fidelity, would be in almost every instance proof against the seductions of bigotry. The Dutch armies have always been in a great ' measure composed of Catholics ; and many of that profession sei-ved under him in the invasion of England. His own judgment' for the repeal of the penal laws had been declared even in the reign of James. The danger, if any, was now immensely dimin- * Leslie's case of the Regale and Pontificate is a long, dull attempt to set up the sacerdotal order above all civil power, at least as to the exercise > of its functions, and especially to get rid of the ap- 1 pointment of bishops by the crown, or, by parity | of reasoning, of priests by lapnen. He is indig- nant even at laymen choosing their chaplains, and ; thinks they ought to take tliem from the bishop; j objecting, also, to the phrase my chaplain, as if i tliey were ser\-ants: "otherwise the expression is proper enough to say my chaplain, as I say my par- ish priest, my bishop, my king, or my God ; which argues my being under their care and direction, and that I belong to them, not they to me." — P. 182. [In another place he says, a man can not serve two masters ; therefore a peer should not have two chaplains.] It is full of enonnous misrepresentation as to the English law. [Leslie, however, like many other couti-oversialists, wrote impetuously and hastily for his immediate purpose. There is a great deal of contradiction between this " Case of the Regale and Pontificate," published in 1700 or 1701, and his "Case stated between the Churches of Rome and England," in 1713. In the latter, the whole reasoning is strictly Protestant ; and while, in the Case of the Regale, he had set up the au- thority of the Catholic Church as binding, not only to individuals, but to national churches, he here even asserts the right of private judgment, and de- nies that any general coancU ever did or can exist. —1845.] ished ; and it appears in the highest degree probable that a genuine toleration of their worship, with no condition but the Oath of Allegiance, would have brought over the majority of that Church to the Protestant succession, so far, at least, as to engage in no schemes inimical to it. The wiser Cath- olics would have perceived that, under a king of their own faith, or but suspected of an attachment to it, they must continue the objects of perpetual distrust to a Protestant nation. They would have learned that con- spiracy and Jesuitical intrigue could but keep alive calumnious imputations, and di- minish the respect which a generous people would naturally pay to their sincerity and their misfortune. Had the legislators of that age taken a still larger sweep, and abol- ished at once those tests and disabilities, which, once necessary bulwarks against an insidious court, were no longer demanded in the more republican model of our gov- ernment, the Jacobite cause would have suffered, I believe, a more deadly wound than penal statutes and double taxation were able to inflict. But this was beyond the philosophers, how much beyond the states- men, of the time ! The Tories, in their malignant hatied of our illusti-ious monarch, turned , . _ Laws against his connivance at popery into a Roman Cath- theme of reproach.* It was be- lieved, and probably with truth, that he had made to his Catholic allies promises of re- laxing the penal laws ; and the Jacobite in- triguers had the mortification to find that William had his party at Rome, as well as her exiled confessor of St. Germain's. Aft- er the peace of Ryswick many priests came over, and showed themselves with such in- cautious publicity as alarmed the bigotry of the House of Commons, and produced the disgraceful act of 1700 against the growth of popery. f The admitted aim of this stat- • See Burnet (Oxf., iv., 409), and Lord Dart- mouth's note. t No opposition seems to have been made in the House of Commons ; but we have a protest from four peers against it. Burnet, though he offerg some shameful arguments in favor of the bill, such as might justify any tyranny, admits that it con- tained some unreasonable severities, and that many were really adverse to it. A bill proposed in 1705, to render the late act against papists effectivei was lost by 119 to 43 (Pari. Hist., vi., 514), which shows that men were ashamed of what they had done. A proclamation, however, was issaed in Will. III.] FROM HENRY V: 11. TO GEORGE 11. 589 ute was to expel the Catholic proprietors of land, coinprisiug many very ancient and wealthy families, by rendering it necessa)y for them to sell their estates. It first offers a reward of c£100 to any informer against a priest e.\ercising his functions, and adjudg- es the penalty of perpetual imprisonment. It requires every pei'son educated iu the popish religion, or professing the same, within six months after he shall attain the age of eighteen years, to take the Oaths of Allegiance and Supremacy, and subscribe the declaiation set down in the act of Charles II. against transubstantiation and the wor- ship of saints ; in default of which he is in- capacitated, not only to purchase, but to in- herit or take lands under any devise or lim- itation. The next of kin being a Protestant shall enjoy such lauds during his life.* So unjust, so unprovoked a persecution is tlie disgrace of that Parliament. But the spir- it of liberty and tolerance was too strong for the tyranny of the law, and this statute was not executed according to its purpose. The Catholic landholders neither renounced their religion nor abandoned their inheritan- ces. The judges put such constructions upon the clause of forfeiture as eluded its efficacy ; and, I believe, there were scarce any instances of a loss of property under this law. It has been said, and, I doubt 1711, immediately after Guiscai'd's attempt to kill Mr. Harley, for enforcing the penal laws against Roman Catholics, which was very scandalous, as tending to impute that crime to them. — Boyers Reign of Anne, p. 429. Aiid in the reigii of Geo. I. (1722), £100,000 was levied by a particular act on the estates of papists and non-jurors. This was only carried by 188 to 172; Sir Joseph Jekyll, and Mr. Onslow, afterward speaker, opposing it, as well as Lord Cowper in the other House. — 9 Geo. I., c. 18. Pari. Hist., viii., 51, 3o3. It was quite impossible that those who sincerely maintained the priucijjles of toleration should long continue to make any exception; though the exception in this instance was wholly on political grounds, and not out of bigotry, it did not the less contravene all that Taylor and Locke had taught men to cherish. * 11 &, 12 Wm. III., c. 4. It is hardly necessa- ry to add, that this act was repealed in 1779. [Ac- cording to a paper printed by Dalrymple, vol. ii., Appendix, p. 12, the number of papists in England above the age of sixteen was but 13,850. This was not long after the Revolution, though no pre- cise date is given. The Protestants, Conformists, and Non-conformists, of the same age, are made to amount to 2,-585,930. This would be not very far below the mark, as we know from other sources ; but the number of Catholics appears incredibly gmall.— 1845.] not, with justice, that the Catholic gentry, during the greater part of the eighteenth century, were as a separated and half-pro- scribed class among their equals, their civil exclusion hanging over them iu the inter- course of general society ;* but their noto- rious, though not unnatural disaffection to the reigning family will account for much t-f this, and their religion was undoubtedly exercised with little disguise or apprehen- sion. The laws were, perhaps, not much less severe and sanguinary than those which oppressed the Protestants of France ; but in their actual administration, what a con- trast between the government of George II. and Louis XV., between the gentleness of an English court of King's Bench, and the ferocity of the Parliaments of Aix and Tou- louse ! The immediate settlement of the crown at the Revolution extended only Act of Set- to the descendants of Anne and 'lement. of William. The former was at that time pregnant, and became in a few months the mother of a son. Nothing, therefore, urged the Convention Parliament to go any fur- ther iu limiting the succession. But the king, in order to secure the elector of Han- over to the grand alliance, was desirous to settle the reversion of the crown on his wife the Princess Sophia and her posterity. A provision to this effect was inserted in the Bill of Rights by the House of Lords. But the Conmions rejected the amendment with little opposition; not, as Burnet idly insinu- ates, tlu'ough the secret wish of a Republi- can party (which never existed, or had no influence) to let the monarchy die a natural death, but from a just sense that the pro- vision was unnecessary and might become inexpedient.! During the life of the young * Butler's Memoirs of Catholics, ii., 64. t While the bill regulating the succession was in the House of Commons, a proviso was offered by Mr. Godolphin, that nothing in this act is in- tended to be drawn into example or consequence hereafter, to prejudice the right of any Protestant prince or princess in their hereditai-y succession to the imperial crown of those realms. This was much opposed by the Whigs, both because it tend- ed to let in the son of James II. if he should be- come a Protestant, and for a more secret reason, that they did not like to recognize the continuance of any hereditai-y right. It was rejected by 179 to 125. — Pari. Hist., v., 249. The Lords' amend- ment in favor of the Princess .Sophia was lost with- out a division. — Id., 339. 590 CONSTITUTIONAL HISTORY OF ENGLAND [ClIAF. XV. Duke of Gloucester the course of succession appeared clear ; but upon his untimely death in 1700, the manifest improbability that the limitations already established could subsist beyond the lives of the King and Princess of Denmark made it highly convenient to preclude intrigue, and cut off" the hopes of the Jacobites by a new settlement of the crown on a Protestant line of princes.* Though the choice was truly free in the hands of Parliament, and no pretext of ab- solute right could be advanced on any side, there was no question that the Princess So- phia was the fittest object of the nation's preference. She was, indeed, veiy far re- moved from any hereditary title. Besides the pretended Prince of Wales, and his sister, whose legitimacy no one disputed, there stood in her way the Duchess of Sa- voy, daughter of Henrietta duchess of Or- leans, and several of the Palatine family. These last had abjured the Reformed faith, of which their ancestors had been the stren- uous assertors ; but it seemed not improb- able that some one might return to it ; and if all hereditaiy right of the ancient English royal line, the descendants of Heury VII., had not been extinguished, it would have been necessaiy to secure the succession of any prince who should profess tVie Protes- tant religion at the time when the existing limitations should come to an end.f Ac- cording to the tenor and intention of the Act of Settlement, all prior claims of inherit- ance, save that of the issue of King William and the Princess Anne, being set aside and annulled, the Princess Sophia became the source of a new royal line.t The throne * [It is asserted by Lord Dartmouth, in a note on Burnet, iv., 520, that some of the Whigs had a project of bring-ing in the house of Hanover at once on the king's death. But no rational man could have thouglit of this. — 1845.] t The Duchess of Savoy put in a very foolish protest against any thing that should be done to prejudice her right. — Ralph, 924. X [It might be urged against this, that the act of settlement declares, as well as enacts, the Prin- cess Sophia to be " next in succession, in the Prot- estant line, to the imperial crown and dignity," &c., reciting, also, her descent from James I. But if we take into consideration the public history of the transaction, and the necessity which was felt for a Parliamentary settlement, we shall be led to think that this was merely the assertion of a fact, and not a recognition of an existing right. This also seems to be the opinion of Blackstone, who treats the Princess Sophia a.s a new slirps of the of England and Ireland, by virtue of the par- amount will of Parliament, stands entailed upon the heirs of her body, being Protes- tants. In them the right is as truly heredi- tary as it ever was in the Plantagenets or the Tudors ; but they derive it not from those ancient families. The blood, indeed, of Cerdic and of the Conqueror flows in the" veins of his present majesty. Our Edwards and Henries illustrate the almost unrivaled splendor and antiquity of the house of Brunswick ; but they have transmitted no more right to the allegiance of England than Boniface of Este or Henry the Lion. That rests wholly on the Act of Settlement, and resolves itself into the sovereignty of the Legislature. The majority of that House of Commons which passed the Bill of Settlement con- sisted of those who, having long opposed the administration of William, though with very different principles both as to the succession of the crown and its prerogative, were now often called by the general name of Tories. Some, no doubt, of these were adverse to a measure which precluded the restoration of the house of Stuart, even on the contin- gency that its heir might embrace the Prot- estant religion ;* but this party could not show itself very openly ; and Harley, the new leader of the Tories, zealously support- royal family ; but it is probable that those who drew the bill meant to show the world that we de- viated as little as circumstances would admit from the hereditary line. The vote, in fact, of the Con- vention Parliament in January, 1689, that the throne was then vacant, put an end, according to any legal analogies, to the supposition of a sub- sisting reversiouaiy right. Nor do I conceive that many persons, conversant with our Constitution, imagine any one to have a right to the crown, on the happily most improbable supposition of the ex- tinction of our royal family. — 1845.] * [" The Whigs," says Bolingbroke, " bad ap- peared zealous for the Protestant succession, when King William proposed it after the death of the Duke of Gloucester. The Tories voted for it then ; and the acts that were judged necessary to secure it, some of them at least, were promoted by them ; yet were they not thought, nor did they affect, as the others did, to be thought extremely fond of it. King William did not come into this measure till he found, upon trial, that there was no other safe and praclicahlc ; and the Tories had an air of coming into it for no other reason ; besides which, it is certain that there was at that time a much greater leaven of Jacobitism in the Tory camp than at the time spoken of here." — State of Parties at Accession of George I. — 1845.] Will. III.] FROM HENRY VII. TO GEORGE II. 591 ed the entail of the crown on the Princess Sophia. But it was determined to accom- pany this settlement with additional securi- ties for the subject's liberty.* The Bill of Rights was reckoned hasty and defective ; some matters of gi-eat importance had been omitted, and in the twelve years which had since elapsed, new abuses had called for new remedies. Eight articles were therefore inserted in the Act of Settlement, to take ef- fect only from the commencement of the new limitation to the house of Hanover. Some of them, as will appear, sprung from a natural jealousy of this unknown and foreign line ; some should strictly not have been postponed so long ; but it is necessary to be content with what it is practicable to obtain. These articles are the following : That whosoever shall hereafter come to Limitations the possession of this crown, shall Uve'cm^^' '"^ communion with the taincd in it. Church of England, as by law established. That in case the crown and imperial dig- nity of this realm shall hereafter come to any person, not being a native of this king- dom of England, this nation be not obliged to engage in any war for the defense of any dominions or territories which do not be- long to the crown of England, without the consent of Parliament. That no person who shall hereafter come to the possession of this crown, shall go out of the dominions of England, Scotland, or Ireland, without consent of Parliament. That from and after the time that the further limitation by this act skall take ef- fect, all matters and things relating to the well governing of this kingdom, which are properly cognizable in the privy council by the laws and customs of this realm, .shall be transacted there, and all resolutions taken thereupon shall be signed by such of the privy council as shall advise and consent to the same. * [It was resolved in a committee of t!ie wliole House, and agreed to by the House, that "for the preserving the peace and Iiappiness of this king- dom and the security of the Protestant religion by law established, it is absolutely necessary a fur- ther declaration be made of the limitation and suc- cession of the crown in the Protestant line, after his majesty and the princess, and the heirs of their bodies respectively. Resolved, that further pro- vision be first made for security of the rights and liberties of the people." — Commons' Journals, 2d of March, 1700-1.— 18-15.] That after the said limitation shall take effect as aforesaid, no person born out of the kingdoms of England, Scotland, or Ireland, or the dominions thereunto belonging (al- though he be naturalized or made a denizen — except such as are born of English pa- rents), shall be capable to be of the privy council, or a member of either house of Par- liament, or to enjoy any office or place of trust, either civil or military, or to have any grant of lands, tenements, or hereditaments from the crown, to himself, or to any other or others in trust for him. That no person who has an office or place of profit under the king, or receives a pen- sion from the crown, shall be capable of serving as a member of the House of Com- mons. That, after the said limitation shall take effect as aforesaid, judges' commissions be made quamdiu se bene gesserint, and their salaries ascertained and established ; but, upon the address of both houses of Parlia- ment, it may be lawful to remove them. That no pardon under the great seal of England be pleadable to an impeachment by the Commons in Parliament.* The first of these provisions was well adapted to obviate the jealousy which the succession of a new dynasty, bred in a Prot- estant Church not altogether agreeing Avith our own, might excite in our susceptible nation. A similar apprehension of foreign government produced the second article, which so far limits the royal prerogative, that any minister who could be proved to have advised or abetted a declaration of war in the specified contingency would be crim- inally responsible to Parliament.f The * 12 & 13 Wm. ill., c. 2^ t It was frequently contended in the reign of George II. that subsidiary treaties for the defense of Hanover, or, rather, such as were covertly de- signed for that and no other purpose, as those with Russia and Hesse Cassel in 1755, were at least conti-ary to the spirit of the Act of Settlement. On the other hand, it was justly answered that, al- though in case Hanover should be attacked on the ground of a German quarrel, unconnected with English politics, we were not bound to defend her; yet, if a power at war with England should think fit to consider that electorate as part of the king's dominions (which, perhaps, according to the law of nations, might be done), our honor must require that it should be defended against such an attack. This is true ; and yet it shows very forcibly that the separation of the two ought to have been in- sisted upon, since the present connection engages 592 CONSTITUTIONAL HISTOHY OF ENGLAND [Chap. XV. third article was repealed very soon after the accession of George I., whose frequent journeys to Hanover were an abuse of the graciousuess with which the Parliament consented to annul the restriction.* A very remaikable alteration that had ., been silently wrought in the superseded course of the executive govern- by a cabinet, jj^g^j. gave rise to the fourth of the remedial articles in the Act of Settle- ment. According to the original constitu- tion of our monarchy, the king had his privy council composed of the gi-eat ofificers of state, and of such others as he should sum- mon to it, bound by an oath of fidelity and secrecy, by whom all aftairs of weight, whether as to domestic or exterior policy, were debated for the most part in his pres- ence, and deteiTuined, subordinately, of course, to his pleasure, by the vote of the major part. It could not happen but that some counselors more eminent than the rest should form juntos or cabals for more close and private management, or be selected as more confidential advisers of their sover- eign ; and the very name of a cabinet coun- cil, as distinguished from the larger body, may be found as far back as the reign of Charles I. ; but the resolutions of the crown, whether as to foreign alliances or the issuing of proclamations and orders at home, or any other overt act of government, were not finally taken without the deliber- ation and assent of that body whom the law recognized as its sworn and notorious coun- selors. This was first broken in upon after the Restoration, and especially after the fall of Clarendon, a stienuous assertor of the rights and dignity of the privy council. " The king," as he complains, " had in his nature so little reverence and esteem for antiquity, and did, in ti'uth, so much con- temn old orders, forms, and institutions, that the objection of novelty rather advanced than obstructed any proposition. "f He wanted to be absolute on the French plan. Great Britain in a verj- disadvantageous mode of earn ing on its wars, without any compensation of national wealth or honor, except, indeed, that of emplo\Tng occasionally in its service a very brave and efficient body of troops. — 1829. * 1 Geo. L. c. 51. t Life of Clarendon, 319. [It was not usual to have any privy counselors except great officers of state, and a few persons of high rank. This was rather relaxed after the Kestoration ; bat Claren- i for which both he and his brother, as the I same historian tells us. had a great predi- lection, rather than obtain a power little less , arbiti-ary, so far, at least, as private rights I were concerned, on the system of his three ; predecessors. The delays and the decen- cies of a regular council, the continual hesi- tation of lawyers, were not suited to his temper, his talents, or his designs; and it must indeed be admitted that the pri\y council, even as it was then constituted was too numerous for the practical adminis- tration of supreme power. Thus, by de- ! grees, it became usual for the ministry or cabinet to obtain the king's final approba- tion of their measures before they were ; laid, for a merely formal ratification, before the council.* It was one object of Sir William Temple's short-lived scheme in 1679 to bring back the ancient course, the king pledging himself on the formation of his new privy council to act in all things by its advice. i During the reign of William, this distinc- tion of the cabinet from the privy Exclnsioo of council, and the exclusion of the pia«ineD , f 11 I ■ c pension- latter trom all busmess oi state, era from became more fully established.! I'"''^"'^"'- don opposed Sir "Wilham Coventry's introduction into the council on this account. — P. 565. — 1845.] j * [Trenchard, in his Short History of Standing Armies, published about 169S, and again in 1731. says, ' Formerly all matters of state and discretion I were debated and resolved in the privy council, where every man subscribed his opinion, and was answerable for it. The late King Charles was the . first who broke this most excellent part of our , Constitution, by settUng a cabal or cabinet council, where all matters of consequence were debated I and resolved, and then brought to the privy coun- \ cil to be confirmed.''— P. 9.— 1845.] j t " The method is this,'' says a member in de- I bate; "things are concerted in the cabinet, and ; then brought to the council; such a thing is re- ] solved in the cabinet, and brought and put on them I for their assent, without showing any of the reas- ; ons. That has not been the method of England. I If this method be, you will never know who gives advice.'' — Pari. Hist, v., 731. [In the Lords' House, Jan., 1711, '• the Earl of Scarsdale proposed the fol- lowing question: That it appears by the Earl of Sun- derland's letter to Mr. Stanhope, that the design of an offensive war in Spain was approved and direct- ed by the cabinet council. " But the mover after- ward subsrituted the word " ministers" for " cab- inet council, ' as better known. Lord Cowper said they were both terms of an uncertain signification, and the latter unknown to our law. Some con- tended that ministers and cabinet council were synonjinous, others that there might be a differ- Will, in.] FROM HENRY VII. TO GEORGE II. 593 This, however, produced a serious conse- quence as to the responsibihty of the advis- ers of the crown ; and at the very time when the controlUng and chastising power of Parliament was most effectually recog- nized, it WEis silently eluded by the conceal- ment in which the objects of its inquiry could wrap themselves. Thus, in the in- stance of a treaty which the House of Com- mons might deem mischievous and dishon- orable, the chancellor setting the great seal to it would of course be responsible ; but it is not so evident that the first lord of the treasuiy, or others more immediately ad- vising the crown on the course of foreign policy, could be liable to impeachment with any prospect of success for an act in which their participation could not be legally proved. I do not mean that evidence may not possibly be obtained which would affect ence. Peterborough said " he had heard a distinc- tion between the cabinet council and the privy council ; that the privy council were such as were thought to know every thing, and knew nothing, and those of the cabinet council thought nobody knew any thing but themselves." — Pari. Hist., vi, 971. At a meeting of the privy council, April 7, 1713, the peace of Utrecht was laid before them, but merely for form's sake, the treaty being signed by all the powers four days afterward. Chief-justice Parker, however, and Lord Cholmondeley were said to have spoken against it. — Id., 1192, from Swift's Journal If we may trust a party-writer at the beginning of Anne's reign, the Archbishop of Canterbury was regularly a member of the cabinet council. — Public Spirit of the Whigs, in Somers Tracts, ix., 22. But probably the fact was, that he occasionally was called to their meetings, as took place much later. — Coxe's Memoirs of Walpole, i., 637. et alibi. Lord Mansfield said in the House of Lords, in 1775, Pari. Hist., xviii., 274, that he had been a cabinet minister part of the late reign and tlie whole of the present ; but there was a nominal and an efficient cabinet ; and a little before Lord Rockingham's administration he had asked the king's leave not to act in the latter. — 1845 ] In Sir Humphrey Mackworth's [or perhaps Mr. Harley's] Vindication of the Rights of the Com- mons of England, 1701, Somers Tracts, xi., 276, the constitutional doctrine is thus laid down, according to the spirit of the recent act of settlement : " As to the setting of the great seal of England to for- eign alliances, the lord-chancellor, or lord-keeper for the time being, has a plain rule to follow ; that is, humbly to inform the king that he can not legal- ly set the great seal of England to a matter of that consequence unless the same be first debated and resolved in council ; which method being observed, the chancellor is safe, and the council answerable." —P. 293. Q Q the leaders of the cabinet, as in the instances of Oxford and Bolingbroke ; but that, the cabinet itself having no legal existence, and its members being surely not amenable to punishment in their simple capacity of privy counselors, which they generally share, in modern times, with a great number even of their adversaries, there is no tangible char- acter to which responsibility is attached ; nothing, except a signature or the setting of a seal, from which a bad minister need entertain any further apprehension than that of losing his post and reputation.* It may be that no absolute corrective is prac- ticable for this apparent deficiency in our constitutional security ; but it is expedient to keep it well in mind, because all minis- ters speak loudly of their responsibility, and are apt, upon faith of this imaginary guarantee, to obtain a previous confidence from Parliament which they may in fact abuse with impunity ; for should the bad success or detected guilt of their ineEisures raise a popular cry against them, and cen- sure or penalty be demanded by their op- ponents, they will infallibly shroud their persons in the dark recesses of the cabinet, and employ every art to shift off the burden of individual liability. William III., from the reseiTedness of his disposition, as well as from the great su- periority of his capacity for affairs to any of our former kings, was far less guided by any responsible counselors than the spirit of our Constitution requires. In the busi- ,ness of the partition ti-eaty, which, whether rightly or otherwise, the House of Com- mons reckoned highly injurious to the pub- lic interests, he had not even consulted his * This very delicate question as to the responsi- bility of the cabinet, or what is commonly called the ministry, in solidum, if I may use the expres- sion, was canvassed in a remarkable discussion within our memory, on the introduction of the late chief-justice of the King's Bench into that select body 1 Mr. Fox strenuously denying the proposition, and Lord Castlereagh, with others now living, maintaining it. — Pari. Debates, A.D. 1806. I can not possibly comprehend how an article of im- peachment for sitting as a cabinet minister could be drawn ; nor do I conceive that a privy counsel- or has a right to resign his place at the board, or even to absent himself when summoned ; so that it would be highly unjust and illegal to presume a participation in culpable measures from the mere circumstance of belonging to it. Even if notoriety be a ground, as has been sometimes contended, for impeachment, it can not be sufficient for conviction. 594 CONSTITUTIONAL HISTOEY OF ENGLAND [Chap. XV. cabinet ; nor could any minister, except the Earl of Portland and Lord Somers, be proved to have had a concern in the trans- action ; for, though the House impeached Lord Orford and Lord Halifax, they were not, in fact, any further parties to it than by being in the secret, and the former had shown his usual intractability by objecting to the whole measure. This was undoubt- edly such a departure from sound constitu- tional usage as left Parliament no control over the executive administration. It was endeavored to restore the ancient principle by this provision in the Act of Settlement, that, after the accession of the house of Hanover, all resolutions as to government should be debated in the privy council, and signed by those present; but, whether it were that real objections were found to stand in the way of this article, or that min- isters shrank back from so definite a respon- sibility, they procured its repeal a very few years afterward.* The plans of govern- ment are discussed and determined in a cabinet council, forming, indeed, part of the larger body, but unknown to the law by any distinct character or special appointment. I conceive, though I have not the means of tracing the matter clearly, that this change has prodigiously augmented the direct au- thority of the secretaries of state, especially as to the interior department, who commu- nicate the king's pleasure in the first in- stance to subordinate officers and magis- trates, in cases which, down, at least, to the time of Charles I., would have been de^ termined in council ; but proclamations and orders still emanate, as the law requires, from the privy council ; and on some rare occasions, even of late years, matters of do- mestic policy have been referred to their advice. It is generally understood, how- ever, that no counselor is to attend, except when summoned ;f so that, unnecessarily numerous as the council has become, these special meetings consist only of a few per- sons besides the actual ministers of the cab- inet, and give the latter no apprehension of * 4 Anne, c. 8. 6 Anne, c. 7. t This is the modem usage, bnt of its origin I CEin not speak. On one remarkahle occasion, while Anne was at the point of death, the Dukes of Som- erset and Argjle went down to the council cham- ber witliout summons to take their seats ; but it seems to have been intended as an unexpected maiMEuver of policy. a formidable resistance ; yet there can l)e no reasonable doubt that every counselor is as much answerable for the measures adopt- ed by his consent, and especially when rati- fied by his signature, as those who bear the name of ministers, and who have generally determined upon them before he is sum- moned. The experience of William's partiality to Bentinck and Keppel, in the latter instance not very consistent with the good sense and dignity of his character, led to a strong measure of precaution against the probable influence of foreigners under the new dy- nasty ; the exclusion of all persons not born within the dominions of the British crown from every office of civil and military trust, and from both houses of Parliament. No other country, as far as I recollect, has adopted so sweeping a disqualification : and it must, I think, be admitted, that it goes a gi'eater length than liberal policy can be said to warrant. But the narrow prejudices of George I. were well restrained by this pro- vision from gratifying his corrupt and serv- ile German favorites with lucrative offices.* The next article is of far more import- ance ; and would, had it continued in force, have perpetuated that struggle between the different parts of the Legislature, especially the crown and House of Commons, which the new limitations of the monarchy were intended to annihilate. The baneful system of rendering the Parliament subsenient to the administi-ation, either by offices and pensions held at pleasure, or by more clan- destine corruption, had not ceased with the house of Stuart. William, not long after his accession, fell into the worst part of this management, which it was most difficult to prevent; and, according to the practice of Charles's reign, induced by secret bribes the leaders of Parliamentary opposition to betray their cause on particular questions. The Toiy patriot. Sir Christopher Mus- grave, trod in the steps of the Whig patri- ot. Sir Thomas Lee. A large expenditure * It is provided by 1 Geo. I., St. 2, c. 4, that no bill of naturalization shall be received without a clause disqualifying the party from sitting in Par- liament, &c., "for the better preserving the said clause in the said act entire and inviolate." This provision, which was rather supererogatory, was of course intended to show the determination of Parliament not to be governed, ostensibly at least, by foreigners under their foreign master. Will, m.] FROM HENRY VII. TO GEORGE II. 595 appeared every year, under the head of se- cret service money, which was pretty well known, and sometimes proved, to be dis- posed of, in great part, among the members of both Houses.* No check was put on the number or quality of placemen in the Lower House. New offices were continu- ally created, and at unreasonable salaries. Those who desire to see a regard to virtue and liberty in the Parliament of England could not be insensible to the enormous mis- chief of this influence. If some apology might be oft'ored for it in the precarious state of the Revolution government, this did not take away the possibility of futiu-e danger, when the monarchy should have regained its usual stability ; but in seeking for a remedy against the peculiar evil of the times, the party in opposition to the court during this reign, whose efforts at reforma- tion were too frequently misdirected, either through faction or some sinister regards to- ward the deposed family, went into the preposterous exti-emity of banishing all * Pari. Hist., 807, 840. Burnet says, p. 42, that Sir John Trevor, a Tory, first put the king on this method of con-uption. Trevor himself was so venal that he received a present of 1000 guineas from the city of London, being then speaker of the Com- mons, for his service in carrying a bill through the House ; and, upon its discoverj', viras obliged to put the vote that he had been guilty of a high crime and misdemeanor. This resolution being carried, he absented himself from the House, and was expelled. — Pari. Hist., 900. Commons' Jour- nals, 12th of March, 1G94-.'). The Duke of Leeds, that veteran of secret iniquity, was discovered about the same time to have taken bribes from the East India Company, and was impeached in con- sequence ; I say discovered, for there seems little or no doubt of his guilt The impeachment, how- ever, was not prosecuted for want of evidence. — Pari. Hist, 881, 911, 933. Guy, secretary of the treasury, another of Charles II.'s court, was ex- pelled the House on a similar imputation. — Id., 886. Lord Falkland was sent to the Tower for begging £2000 of the king.— Id., 841. A system of infamous peculation among the officers of gov- ernment came to light through the inquisitive spirit of Parliament in this reign ; not that the nation was worse and more corrapt than under the Stu- arts, but that a profligacy, which had been engen- dered and had flourished under their administra- tion, was now dragged to light and punishment. Long sessions of Parliament and a vigilant party- spirit exposed the evil, and have finally, in a great measure, removed it; though Burnet's remark is still not wholly obsolete. " The regard," says that honest bishop, " that is shown to the members of Parliament among us, makes that few abuses can be inquired into or discovered." servants of the crown from the House of Commons. Whether the bill for free and impartial proceedings in Parliament, which was rejected by a very small majority of the House of Lords in 1693, and having in the next session passed through both Houses, met with the king's negative, to the great disappointment and displeasure of the Commons, was of this general nature, or excluded only certain specified officers of the crown, I am not able to determine, though the prudence and expediency of William's refusal must depend entirely upon that question.* But in the Act of Settlement, the clause is quite without ex- ception ; and if it had ever taken effect, no minister could have had a seat in the House of Commons, to bring forward, explain, or defend the measures of the executive gov- ernment. Such a separation and want of intelligence between the crown and Parlia- ment must either have destroyed the one or degraded the other. The House of Commons would either, in jealousy and passion, have armed the strength of the people to subvert the monarchy, or, losing that effective control over the appointment of ministers, which has sometimes gone near to their nomination, would have fallen almost into the condition of those States- General of ancient kingdoms, which have met only to be cajoled into subsidies, and give a passive consent to the propositions of tlie court. It is one of the greatest safeguards ' Pari. Hist, 748, 829. The House resolved, "that whoever advised the king not to give the royal assent to the act touching free and impartial proceedings in Parliament, which was to redress a grievance, and take off a scandal upon the proceed- ings of the Commons in Parliament is an enemy to their majesties and the kingdom." They laid a representation before the king, showing how few instances have been in former reigns of denying the royal assent to hills for redress of grievances, and the great grief of the Commons " for his not having given the royal assent to several public bills, and particularly the bill touching free and impartial proceedings in Parliament, which tended so much to the clearing the reputation of this House, after their having so freely voted to supply the public occasions." The king gave a courteous but evasive answer, as indeed it was natural to expect ; hut so great a flame was raised in the Commons, that it was moved to address him for a further answer, which, however, there was still a sense of decoram suflicient to prevent. Though the particular provisions of this bill do not appear, I think it probable that it went too fat in excluding military as well as civil ofHcers. 596 CONSTITUTIONAL HISTORY OP ENGLAND [Chap. XV. of our liberty, that eloquent and ambitious men, such as aspire to guide the councils of the crown, are from habit and use so con- nected with the houses of Parliament, and derive from them so much of their renown and influence, that they lie under no temp- tation, nor could, without insanity, be pre- vailed upon, to diminish the authority and privileges of that assembly. No English statesman, since the Revolution, can be lia- ble to the veiy slightest suspicion of an aim, or even a wish, to establish absolute mon- archy on the ruins of our Constitution. Whatever else has been done, or designed to be done amiss, the rights of Parliament have been out of danger. They have, whenever a man of powerful mind shall di- rect the cabinet, and none else can possibly be formidable, the strong security of his own interest, which no such man will de- sh'e to build on the caprice and intrigue of a court ; and as this immediate connection of the advisers of the crown with the House of Commons, so that they are, and ever profess themselves, as truly the servants of one as of the other, is a pledge for theiz- loy- alty to the entire Legislature, as well as to their sovereign (I mean, of course, as to the fundamental principles of our Constitution), so has it preserved for the Commons their preponderating share in the executive ad- ministration, and elevated them in the eyes of foreign nations, till the monarchy itself has fallen comparatively into shade. The pulse of Europe beats according to the tone of our Parliament ; the counsels of our kings are there revealed, and by that kind of previous sanction which it has been cus- tomaiy to obtain, become, as it were, the res- olutions of a senate ; and we enjoy the in- dividual pride and dignity which belong to Republicans, with the steadiness and tran- quillity which the supremacy of a single person has been supposed peculiarly to be- stow.* * [The Tories introduced a clause, according to Burnet, into the Oathof Abjuration, to maintain tbe government by king, Lords, and Commons. This was rejected by the Lords ; and Burnet calls it " a barefaced Republican notion, which was wont to be condemned as such by the same persons who now pressed it." The Lords and Commons, he ob- serves, are indeed part of the Constitution and the legislative body, but not of the government. — Vol. iv., p. 538. But Speaker Onslow, coming half a century later, after the Whig practice and theory bad become established, sees little to object to in But if the chief ministers of the crown are indispensably to be present in one or other house of Parliament, it by no means follows that the doors should be thrown open to all those subaltern retainers who, too low to have had any participation in the measures of government, come merely to earn their salaries by a sure and silent vote. Unless some limitation could be put on the number of such officers, they might become the majority of every Parliament, especial- ly if its duration were indefinite or very long. It was always the popular endeavor of the opposition, or, as it was usually de- nominated, the countiy party, to reduce the number of these dependents, and as con- stantly the whole strength of the court was exerted to keep them up. William, in truth, from his own errors, and from the disadvantage of the times, would not vent- ure to confide in an unbiased Parliament. On the formation, however, of a new board of revenue in 1694, for managing the stamj)- duties, its members were incapacitated from sitting in the House of Commons.* This, I believe, is the first instance of ex- clusion on account of employment ; and a similar act was obtained in 1699, extend- ing this disability to the commissioners and some other oflScers of excise ;t but when the absolute exclusion of all civil and milita- ry officers by the Act of Settlement was found, on cool reflection, too impracticable to be maintained, and a revision of that ar- ticle took place in the year 1706, the House of Commons were still determined to pre- serve at least the principle of limitation, as to the number of placemen within their walls. They gave way, indeed, to the other House in a considerable degree, re- ceding, with some unwillingness, from a clause specifying expressly the description of oflSces which should not create a disqual- ification, and consenting to an entire repeal the phrase " government," which may be taken in a large sense. Burnet, however, as Ralph points out, has misrepresented the clause. The words were, " Constitution and government by king, Lords, and Commons, as by law established," which he conjectures to be rather leveled at "barefaced Republican notions" than borrowed from them. — Ralph, ii., 1018. Burnet's memory was too deceitful to be trusted without reference to books ; yet he seems rarely to have made any. —1845.] * 4 & 5 Wm. & Mary, c. 21. t 11 & 12 Wm. IIL, c. 2, § 50. Will. III.] FROM HENRY VII. TO GEORGE U. 597 of the original article ;* but they established two provisions of great importance, which still continue the great securities against an overwhelming influence : first, that every member of the House of Commons accept- ing an office under the crown, except a higher commission in the army, shall vacate his seat, and a new writ shall issue ; sec- ondly, that no person holding an office cre- ated since the 25th of October, 1705, shall be capable of being elected or re-elected at all. They excluded, at the same time, all such as held pensions during the pleasure of the crown ; and, to check the multiplica- tion of placemen, enacted, that no greater number of commissioners should be ap- pointed to execute any office than had been employed in its execution at some time be- fore that Parliament.! These restrictions ought to be rigorously and jealously main- tained, and to receive a construction, in doubtful cases, according to their Constitu- tional spirit; not as if they were of a penal nature toward individuals, an absurdity iu which the careless and indulgent temper of modern times might sometimes acquiesce. t * The House of Commons introduced into the Act of Security, as it was called, a long clause, carried on a division by 167 to 160, Jan. 24, 1706, enumerating various persons who should be eligi- ble to Parliament ; the principal officers of state, the commissioners of treasury and admiralty, and a limited number of other placemen. The Lords thought fit to repeal the whole prohibitory enact- ment. It was resolved in the Commons, by a ma- jority of 205 to 183, that they would not agree to this amendment. A conference accordingly took place, when the managers of the Commons object- ed, Feb. 7, that a total repeal of that provision would admit such an unlimited number of officers to sit in their House, as might destroy the free and impartial proceedings in Parliament, and endanger the liberties of the commons of England. Those on the Lords' side gave their reasons to the con- trary at great length, Feb. 11. The Commons de- termined, Feb. ] 8, to insert the provision vacating the seat of a member accepting office, and resolved not to insist on their disagreements as to the main clause. Three protests were entered in the House of Lords against inserting the word "repealed" in reference to the prohibitoiy clause, instead of "regulated and altered," all by Tory peers. It is observable that, as the provision was not to take effect till the house of Hanover should succeed to the throne, the sticklers for it might be full as much influenced by their ill will to that family as by their zeal for liberty. t 4 Anne, c. 8. 6 Anne, c. 7. X This, it is to be observed, was written before the Reform Bill of 1832, which created a necessity, It had been the practice of the Stuarts, especially in the last years of independence their dynasty, to dismiss judges, "f judges, without seeking any other pretense, who showed any disposition to thwart govern- ment in political prosecutions. The gener- al behavior of the bench had covered it with infamy. Though the real security for an honest court of justice must be found in their responsibility to Parliament and to public opinion, it was evident that their ten- ure in office must, in the first place, cease to be precarious, and their integrity rescued from the severe trial of forfeiting the emol- uments upon which they subsisted. In the debates previous to the Declaration of Rights, we find that several speakers in- sisted on making the judges' commissions quamdiu se bene gesserint, that is, during life or good behavior, instead of durante placito, at the discretion of the crown. The former, indeed, is said to have been the ancient course till the reign of James I. ; but this was omitted in the hasty and im- perfect Bill of Rights. The commissions, however, of William's judges ran quamdiu se bene gesserint. But the king gave an unfortunate instance of his very injudicious tenacity of bad prerogatives, in refusing hia assent, in 1692, to a bill that had passed both Houses, for establishing this independ- ence of the judges bj' law and confirming their salaries.* We owe this important provision to the Act of Settlement ; not, as ignorance and adulation have perpetually asserted, to his late majesty George III. No judge can be dismissed from office, ex- cept in consequence of a conviction for some offense, or the address of both houses of Parliament, which is tantamount to an act of the Legislature. f It is always to be kept in mind that they are still accessible to the hope of further promotion, to the zeal of political attachment, to the flattery of if any sort of balance is to be preserved in our Constitution, of strengthening the executive power, and consequently dictated the expediency of re- laxing many provisions which had been required in very different times. * Burnet, 86. It was represented to the king, he say.s, by some of the judges themselves, that it was not fit they should be out of all dependence on the court. t It was originally resolved that they should be removable on the address of either House, which was changed afterward to both Houses. — Comm. Joum., 12th of March and 10th of May. 598 CONSTITUTIONAL HISTOEY OF ENGLAND (Chap. XV. princes and ministers ; that the bias of their prejudices, as elderly and peaceable men, will, in a plurality of cases, be on the side of power ; that they have very frequently been trained, as advocates, to vindicate eveiy proceeding of the crown ; from all which we should look on them with some little vigilance, and not come hastily to a conclusion that, because their commissions can not be vacated by the crown's authori- ty, they are wholly out of the reach of its influence. I would by no means be misin- terpreted, as if the general conduct of our courts of justice since the Revolution, and especially in later times, which in most re- spects have been the best times, were not deserving of that credit it has usually gain- ed ; but possibly it may have been more guided and kept straight than some are will- ing to acknowledge by the spirit of observa- tion and censure which modifies and con- trols our whole government. The last clause in the Act of Settlement, that a pardon under the great seal shall not be pleadable in bar of an impeachment, re- quires no particular notice beyond what has been said on the subject in a former chap- ter.* In the following session, a new Parlia- OathofAb- ment having been assembled in juration. which the Tory faction had less influence than in the last, and Louis XIV. having, in the mean time, acknowledged the son of James as King of England, the natural resentment of this insult and breach of faith was shown in a more decided as- sertion of Revolution principles than had hitherto been made. The pretended king was attainted of high treason ; a measure absurd as a law, but politic as a denuncia- tion of perpetual enmity. f It was made * It was proposed in the Lords, as a clause in the Bill of Rights, that pardons upon an impeach- ment should be void, but lost by 50 to 17 ; on which twelve peers, all Whigs, entered a protest. — Pari. Hist, 482. t 13 Wm. III., c. 3. The Lords introduced an amendment into this bill, to attaint also Mary of Este, the late dueen of James II. But the Com- mon.s disagreed, on the ground that it might be of dangerous consequence to attaint any one by an amendment, in which case such due consideration can not be had as the nature of an attainder re- quires. The Lords, after a conference, gave way ; but brought in a separate bill to attaint Mar>- of Este, which passed with a protest of the Torj- peers.— Lords' Journals, Feb. 6, 12, 20, 1701-2. high treason to correspond with him, or re- mit money for his service ; and a still more vigorous measure was adopted, an oath to be taken, not only by all civil oflficers, but by all ecclesiastics, members of the Uni- versities, and schoolmasters, acknowledging William as lawful and rightful king, and denying any right or title in the pretended Prince of Wales.* The Tories, and es- pecially Lord Nottingham, had earnestly contended, in the beginning of the king's reign, against those words in the Act of Recognition, which asserted William and Mary to be rightfully and lawfully king and queen. They opposed the association at the time of the assassination-plot, on ac- count of the same epithets, taking a dis- tinction which satisfied the narrow under- standing of Nottingham, and served as a subterfuge for more cunning men, between a king whom they were bound in all cases to obey, and one whom they could style rightful and lawful. These expressions were, in fact, slightly modified on that oc- casion ; yet fifteen peers and ninety-two commoners declined, at least for a time, to sign it. The present oath of abjuration, thei-efore, was a signal victory of the Whigs, who boasted of the Revolution, over the Tories, who excused it.f The renuncia- tion of the hereditary right, for at this time few of the latter party believed in the young man's spuriousness, was complete and xm- equivocal. The dominant faction might enjoy, perhaps, a charitable pleasure in ex- posing many of their adversaries, and es- pecially the High-Church clergy, to the disgrace and remorse of perjury. Few or none, however, who had taken the Oath of Allegiance, refused this additional cup of bitterness, though so much less defensible, according to the principles they had em- ployed to vindicate their compliance in the former instance ; so true it is that, in mat- ters of conscience, the first scruple is the only one which it costs much to overcome. But the imposition of this test, as was evi- dent in a few years, did not check the bold- * 13 Wm. III., c. 6. t Sixteen lords, including two bishops, Compton and Sprat, protested against the bill containing the abjuration oath. The first reason of their votes was afterward expunged from the Journals by or- der of the House. — Lords' Joamals, 24th of Feb., 3d of March, 1701-2. Anne, Geo. I., Geo. II.] FROM HENRY VII. TO GEORGE II. 599 ness, or diminish the numbers, of the Jaco- bites ; and I must confess, that of all soph- istry that weakens moral obligation, that is the most pardonable which men employ to escape from this species of tyranny. The state may reasonably make an entire and heartfelt attachment to its authority the condition of civil trust ; but nothing more than a promise of peaceable obedience can justly be exacted from those who ask only to obey in peace. There was a bad spirit abroad in the Church, ambitious, factious, intolerant, calumnious ; but this was not necessarily partaken by all its members, and many excellent men might deem them- selves hardly dealt with in requiring their denial of an abstract proposition, which did not appear so totally false according to their notions of the English Constitution and the Church's doctiiue.* CHAPTER XVI. ON THE STATE OF THE CONSTITUTION IN THE REIGNS OF ANNE, GEORGE I., AND GEORGE II. Termination of Contest between the Crown and Parliament. — Distinctive Principles of Whigs and Tories. — Changes effected in these by Cir- cnmstances. — Impeachment of Sacheverell dis- plays them again. — Revolutions in the Ministry under Aime. — War of the Succession. — Treaty of Peace broken off. — Renewed again by the Tory Government. — Arguments for and against the Treaty of Utrecht. — The Negotiation mis- managed.— Litrigues of the Jacobites. — Some of the Ministers engage in them. — Just Alarm for the Hanover Succession. — Accession of George I. — Whigs come into Power. — Great Disaffection in the Kingdom. — Impeachment of Tory Ministers. — Bill for Septennial Parlia- ments.— Peerage Bill. — Jacobitism among the Clergy. — Convocation. — Its Encroaclmaents. — Hoadley. — Convocation no longer suffered to sit. — Infringements of the Toleration by Statutes under Anne. — They are repealed by the Whigs. — Principles of Toleration fully established. — Banishment of Atterbui-y. — Decline of the Jaco- bites.— Prejudices against the reigning Family. — Jealousy of the Crown. — Changes in the Con- stitution whereon it was founded. — Permanent Military Force. — Apprehensions from it. — Es- tablishment of Militia. — Influence over Pai'lia- mont by Places and Pensions. — ^Attempts to re- strain it. — Place Bill of 1743. — Secret Corrup- tion. — Commitments for Breach of Privilege : of Members for Offenses ; of Strangers for Of- fenses against Members, or for Offenses against the House. — Kentish Petition of 1701. — Dispute with Lords about Aylesbury Election. — Pro- ceedings against Mr. Murray in 1751. — Commit- ments for Offenses unconnected with the House. — Privileges of the House not controllable by Courts of Law. — Danger of stretching this too far. — Extension of Penal Laws. — Diminution of personal Authority of the Crown. — Causes of this. — Party Connections. — Influence of Political Writings. — PubUcatiou of Debates. — Increased Influence of the Middle Ranks. The Act of SettJement was the seal of our constitutional laws, the complement of the Revolution itself and the Bill c -n - , , , Termination ot Rights, the last great statute of ihe roa- which restrains the power of the Jf^' ^ _ the crown crown, and manifests, in any con- and Pariia- spicuous degree, a jealousy of Parliament in behalf of its own and the sub- ject's privileges. The battle had been fought and gained ; the statute-book, as it becomes more voluminous, is less inter- esting in the history of our Constitution; the voice of petition, complaint, or remon- strance is seldom to be traced in the Jour- nals ; the crown, in return, desists altogeth- er, not merely fi-om the threatening or ob- jurgatory tone of the Stuarts, but from that dissatisfaction sometimes apparent in the language of William ; and the vessel seems rid ing in smooth water, moved by other im- pulses, and liable, perhaps, to other dan- gers than those of the ocean-wave and the tempest. The reigns, accordingly, of Anne, George I., and Geoige II., afford rather ma- terials for dissertation than consecutive facts for such a work as the present, and may be sketched in a single chapter, though by no means the least important, which the read- er's study and reflection must enable him to fill up. Changes of an essential nature were in operation dming the sixty years of these three reigns, as well as in that beyond the limits of this undertaking, which in length * Whiston mentions that Mr. B aker, of St. John's, Cambridge, a worthy and learned man, as well as others of the college, had thoughts of taking the oath of allegiance on the death of King James; but the Oath of Abjuration coming out the next year, had such expressions as he still scrupled. — Whiston's Memoirs. Biog. Brit. (Kippis's edition), art. Baker. 600 CONSTITUTIONAL HISTORY OP ENGLAND [Chap. XVL measures them all ; some of them greatly enhancing the authority of the crown, or, rather, of the executive government, while others had so opposite a tendency, that phil- osophical speculators have not been uniform in determining on which side was the sway of the balance. No clear understanding can be acquired Distinctive of the political history of England ^r^s and*^ without distinguishing, with some Tones. accuracy of definition, the two great parties of Whig and Tory. But this is not easy ; because those denominations being sometimes applied to factions in the state, intent on their own aggrandizement, sometimes to the principles they entertained or professed, have become equivocal, and do by no means, at all periods and on all occa- sions, present the same sense ; an ambigui- ty which has been increased by the lax and incon-ect use of familiar language. We may consider the words, in the first instance, as expressive of a political theory or princi- ple, applicable to the English government. They were originally employed at the time of the Bill of Exclusion, though the distinc- tion of the parties they denote is evidently, at least, as old as the Long Parliament. Both of these parties, it is material to ob- serve, agi'eed in the maintenance of the Constitution ; that is, in the administration of the government by an hereditary sover- eign, and in the concurrence of that sover- eign with the two houses of Parliament in legislation, as well as in those other institu- tions which have been reckoned most an- cient and fundamental. A favorer of unlim- ited monarchy was not a Tory, neither was a Republican a Whig. Lord Clarendon was a Tory, Hobbes was not ; Bishop Hoadley was a Whig, Milton was not. But they differed mainly in this : that to a Tory the Constitution, inasmuch as it was the Constitution, was an ultimate point, beyond which he never looked, and from which he thought it altogether impossible to swerve ; whereas a Whig deemed all forms of gov- ernment subordinate to the public good, and therefore liable to change when they should cease to promote that object. Within those bounds which he, as well as his antagonist, meant not to transgress, and rejecting aU unnecessary innovation, the Whig had a natural tendency to political improvement, the Tory an aversion to it. The one loved to descant on liberty and the rights of man- kind, the other on the mischiefs of sedition and the rights of kings. Though both, aa I have said, admitted a common principle, the maintenance of the Constitution, yet this made the privileges of the subject, that the crown's prerogative, his peculiar care. Hence it seemed likely that, through pas- sion and circumstance, the Tory might aid in establishing despotism, or the Whig in subverting monarchy. The former was gen- erally hostile to the liberty of the press, and to freedom of inquiry, especially in religion ; the latter their friend. The principle of the one, in short, wsis amelioration ; of the other, conservation. But the distinctive characters of Whig and Toiy were less plainly seen, changes after the Revolution and Act of ff"'*/' these by cir- Settlement, in relation to the cumstauces. crown, than to some other parts of our pol- ity. The Tory was ardently, and in the first place, the supporter of the Church in as much pre-eminence and power as he could give it. For the Church's sake, whea both seemed as it were on one plank, he sacrificed his loyalty ; for her he was always ready to persecute the Catholic, and if the times permitted not to persecute, yet to re- strain and discountenance, the Non-conform- ist. He came unwillingly into the tolera- tion, which the Whig held up as one of the great trophies of the Revolution. The Whig spurned at the haughty language of the Church, and ti'eated the Dissenters with moderation, or perhaps with favor. This distinction subsisted long after the two parties had shifted their ground as to civil liberty and royal power. Again, a predilec- tion for the ten'itorial aristocracy, and for a government chiefly conducted by their in- fluence, a jealousy of new men, of the mer- cantile interest, of the commonalty, never failed to mark the genuine Tory. It has been common to speak of the Whigs as an aristocratical faction. Doubtless the major- ity of the peerage from the Revolution down- ward to the death of George IL were of that denomination ; but this is merely an in- stance wherein the party and the principle are to be distinguished. The natural bias of the aristocracy is toward the crown ; but, except in most part of the reign of Anne, the crown might be reckoned with the Whig party. No one who reflects on the motives Anne, Geo. I., Geo. IL] FROM HENRY VH. TO GEORGE II. 601 which are Hkely to influence the judgment of classes in society, would hesitate to pre- dict that an English House of Lords would contain a larger proportion of men inclined to the Tory principle than of the opposite school ; and we do not find that experience contradicts this anticipation. It will be obvious that I have given to each of these political principles a moral character, and have considered them as they would subsist in upright and conscientious men, not, as we may find them " in the dregs of Romulus," suflfocated by selfishness or distorted by faction. The Wliigs appear to have taken a far more comprehensive view of the nature and ends of civil society ; their principle is more virtuous, more flex- ible to the variations of time and circum- stances, more congenial to large and mascu- line intellects. But it may probably be no small advantage that the two parties, or, rather, the sentiments which have been pre- sumed to actuate them, should have been mingled, as we find them, in the complex mass of the English nation, whether the pro- portions may or not have been always such as we might desire. They bear some anal- ogy to the two forces which retain the planetary bodies in their orbits ; the annihi- lation of one would disperse them into chaos, that of the other would drag them to a cen- ter ; and though I can not reckon these old appellations by any means characteristic of our political factions in the nineteenth cen- tury, the names Whig and Tory are often well applied to individuals. Nor can it be othenvise ; since they are founded not only on our laws and history, with which most have some acquaintance, but in the diversi- ties of condition and of moral temperament generally subsisting among mankind. It is, however, one thing to prefer the Whig principle, another to justify, as an ad- vocate, the party which bore that name. So far as they were guided by that princi- ple, I hold them far more friendly to the great interests of the Commonwealth than their adversaries. But, in truth, the pecu- liar circumstances of these four reigns after the Revolution ; the spirit of faction, preju- dice, and animosity ; above all, the desire of obtaining or retaining power, which, if it be ever sought as a means, is soon converted into an end, threw both parties very often into a false position, and gave to each the language and sentiments of the other, so that the two principles are rather to be traced in writings, and those not wholly of a temporary nature, than in the debates of Parliament. In the reigns of William and Anne, the Whigs, speaking of them gener- ally as a gi'eat paity, have preserved their ^ original character unimpaired far more than their opponents. All that had passed in the former reign served to humble the To- ries, and to enfeeble their principle. The Revolution itself, and the votes upon which it was founded ; the Bill of Recognition in 1690 ; the repeal of the Non-resisting Test; the Act of Settlement ; the Oath of Abju- ration, were solemn adjudications, as it were, against their creed. They took away the old argument, that the letter of the law was on their side. If this, indeed, were all usurpation, the answer was ready, but those who did not care to make it, or by their sub- mission put it out of their power, were com- pelled to sacrifice not a little of that which had entered into the definition of a Tory. Yet even this had not a greater effect than that systematic jealousy and dislike of the administration, which made them encroach, according to ancient notions, and certainly their own, on the prerogative of William. They learned in this no unpleasing lesson to popular assemblies, to magnify their own privileges and the rights of the people. This tone was often assumed by the friends of the exiled family, and in them it was without any dereliction of their object. It was natural that a Jacobite should use pop- ular topics in order to thwart and subvert a usurping government. His faith was to the crown, but to the crown on a right head. In a Tory who voluntarily submitted to the reigning prince, such an opposition to the prerogative was repugnant to the maxims of his creed, and placed him, as I have said, in a false position. This is, of course, ap- plicable to the reigns of George I. and II., and in a greater degree in proportion as the Tory and Jacobite were more separated than they had been, perhaps, under William. The Tories gave a striking proof how far they might be brought to abandon their the- ories, in supporting an address to the queen that she would invite the Princess Sophia to take up her residence in England ; a measure so unnatural as weU as imprudent, that some have ascribed it to a subtlety of 602 CONSTITUTIONAL HISTORY OF ENGLAND [Chap. XVI. politics which I do not comprehend. But we need not, perhaps, look further than to the blind rage of a party just discarded, who, out of pique toward their sovereign, made her more irreconcilably their enemy, and while they hoped to brand their oppo- nents with inconsistency, forgot that the im- putation would rebound with tenfold force on themselves. The Whigs justly resisted a proposal so little called for at that time ; but it led to an act for the security of the succession, designating a regency in the event of the queen's decease, and providing that the actual Parliament, or the last, if none were in being, should meet immedi- ately, and continue for six months, unless dissolved by the successor.* In the conduct of this party, generally speaking, we do not, I think, find any aban- donment of the cause of liberty. The Whigs appear to have been zealous for bills exclud- ing placemen from the House, or limiting their numbers in it; and the abolition of the Scots privy council, an odious and despotic tribunal, was owing, in a gi'eat measure, to the authority of Lord Somers.f In these * 4 Anne, c. 8. Pari. Hist., 457, et post. Bar- net, 429. t 6 Anne, c. 6. Pari. Hist., 613. Somerville, 296. Hardw. Papers, ii., 473. Cunningham at- tests the zeal of the Whigs for abolishing the Scots privy council, though he is wrong in reckon- ing Lord Cowper among them, whose name ap- pears in the protest on the other side, ii., 135, &c. The distinction of old and modern Whigs appeared again in tliis reign ; the former professing, and in general feeling, a more steady attachment to the principles of civil liberty. Sir Peter King, Sir Joseph Jekyll, Mr. Wortley, Mr. Hampden, and the historian himself, were of this description, and, consequently, did not always support Godolphin. —P. 210, &c. Mr. Wortley brought in a bill, which passed the Commons in 1710, for voting by ballot. It was opposed by Wharton and Godol- phin in the Lords, as dangerous to the Constitution, and thrown out. Wortley, he says, went the next year to Venice, on purpose to inquire into the ef- fects of the ballot, which prevailed universally in that RepuUic. — P. 285. I have since learned that no trace of such a bill can be found in the Jour- nals ; yet I think Cunningham must have had some foundation for his circumstantial assertion. The ballot, however, was probably meant to be in Parliament, not, or not wholly, in elections. [On searching the Journals, I find a bill " to prevent bribery, corraption, and other indecent practices, in electing of members to serve in Par- liament," ordered to be brought in, 17th of Jan., 1708-9. Nothing further appears in this session ; but in the next, a bill with the same title is brought measures, however, the Tories generally co-operated ; and it is certainly difficult in the history of any nation to separate the in- fluence of sincere patriotism from that of animosity and thirst of power. But one memorable event in the reign of Anne gave an opportunity for bringing the two theories of government into collision, to the signal advantage of that which the impeachraent Whigs professed: I mean, the I'^^rX"' impeachment of Dr. Sachever- them again, ell. Though, with a view to the interests of their ministiy, this prosecution was very unadvised, and has been desei-vedly cen- sured, it was of high impoi-tance in a con- stitutional light, and is not only the most authentic exposition, but the most authori- tative ratification of the principles upon which the Revolution is to be defended.* The charge against Sacheverell was, not for impugning what was done at the Rev- olution, which he affected to vindicate, but for maintaining that it was not a case of re- sistance to the supreme power, and, con- sequently, no exception to his tenet of an unlimited passive obedience. The mana- gers of the impeachment had, therefore, not only to prove that there was resistance in the Revolution, which could not, of course, be sincerely disputed, but to assert the law- in, 1 5th of Feb., 1709-10, and read a second time Feb. 18th ; but no more appears about it. Mr. Wortley's name does not appear among those who were ordered to bring in either of these bills. I have also found in a short tract, entitled "A Patriot's Proposal to the People of England," 1705, a recommendation of election by ballot. It is highly democratical in its principle, but came a full century too soon. The proceedings of the House of Commons in the Aj lesbury case seem to have produced it. It seems, therefore, that I was mistaken in sup- posing the bill mentioned by Cunningham to have respected the mode of voting 2?i Parliament. — 1845.] * Pai-L Hist., vi., 805. Burnet, 537. State Tri- als, XV., 1. It is said in Coxe's Life of Marlboi^ ough, iii., 141, that Marlborough and Somers were against this prosecution. This writer goes out of his way to make a false and impertinent remark on the managers of tlie impeachment, as giving encouragement by their speeches to licentiousness and sedition. — Id., 166. [Cunningham says that Marlborough was for prosecution at law rather than impeachment ; Som- ers against both, ii., 277 : Harley spoke against the impeachment as unworthy of the House, but condemned SachevereU's sermon as foolish, calling it a " circumgyration of incoherent words ; ' which, the historian says, some thought was the character of his own speech. — Vol. ii., p. 285. — 1845.] AnSK, Gbo. I., Geo. II.] FROM HENRY VH. TO GEORGE II. 603 fulness, in great emergencies, or what is called in politics necessity, of taking arms against the law : a delicate matter to treat of at any time, and not least so by ministers of state and law officers of the crown, in the very presence, as they knew, of their sovereign.* We can not praise too highly their speeches upon this charge; some shades, rather of discretion than discord- ance, may bo perceptible ; and we may dis- tinguish the warmth of Lechmere, or the openness of Stanhope, from the caution of Walpole, who betrays more anxiety than his colleagues to give no ofi'ense in the high- est quarter ; but in eveiy one the same fun- damental principles of the Whig creed, ex- cept on which, indeed, the impeachment could not rest, are unambiguously proclaim- ed. " Since we must give up our right to the laws and liberties of this kingdom," says Sir Joseph Jekyll, " or, which is all one, be precarious in the enjoyment of them, and hold them only during pleasure, if this doc- trine of unlimited non-resistance prevails, the Commons have been content to under- take this prosecution. "f " The doctrine of unlimited, unconditional, passive obedience," * " The managers appointed by the House of Commons," says an ardent Jacobite, "behaved with all the insolence imaginable. In their dis- course they boldly asserted, even iu her majesty's presence, that, if the right to the crown was he- reditary and iudefeasible, the prince beyond seas, meaning the king, and not the queen, had the legal title to it, she having no claim thereto but what she owed to the people ; and that by the Revolution principles, on which the Constitution was founded, and to which the laws of the land agreed, the people might turn oat or lay aside their sovereigns as they saw cause. Though, no doubt of it, there was a great deal of truth in these assertions, it is easy to be believed that the queen was not well pleased to bear them maintained, even in her own presence and in so solemn a manner, before such a great concourse of her sub- jects ; for, though princes do cherish these and tlie like doctrines, while they serve as the means to advance themselves to a crown, yet, being once possessed thereof, they have as little satisfaction in them as those who succeed by an hereditary, un- questionable title." — liOckhart Papers, i., 312. It is probable enough that the last remark has its weight, and that the queen did not wholly like the speeches of some of the managers ; and yet nothing can be more certain than that she owed her crown in the first instance, and the preserva- tion of it at that very time, to tliose insolent doc- trines which wounded her royal ear ; and that the genuine Loyalists would soon have lodged her in the Tower. t State Trials, xv., 95. says Mr. Walpole, " was first invented to support arbitrary and despotic power, and was never promoted or countenanced by any government that had not designs some time or other of making use of it."* And thus General Stanhope still more vigorously : " As to the doctrine itself of absolute non- resistance, it should seem needless to prove by arguments that it is inconsistent with the law of reason, with the law of nature, and with the practice of all ages and countries. Nor is it very material what the opinions of some particular divines, or even the doctrine generally preached in some particular reigns, may have been concerning it. It is sufficient for us to know what the practice of the Church of England has been, when it found itself oppressed; and, indeed, one may ap- peal to the practice of all churches, of all states, and of all nations in the world, how they behaved themselves when they found their civil and religious constitutions invaded and oppressed by tyranny. I believe we may further venture to say, that there is not at this day subsisting any nation or govern- ment in the woild, whose first original did not receive its foundation either from resist- ance or compact ; and as to our purpose, it is equal if the latter be admitted ; for wherever compact is admitted, there must be admitted likewise a right to defend the rights accruing by such compact. To argue the municipal laws of a country in this case is idle. Those laws were only made for the common course of things, and can never be understood to have been designed to de- feat the end of all laws whatsoever, which would be the consequence of a nation's tamely submitting to a violation of all their divine and human rights. "f Mr. Lechmere argues to the same purpose in yet stronger terms. t But, if these managers for the Commons v/ere explicit in their assertion of the Whig principle, the counsel for Sacheverell by no means unfurled the opposite banner with equal courage. In this was chieflj' mani- fested the success of the former. His ad- vocates had recourse to the petty chicane of arguing that he had laid down a general rule of obedience without mentioning its ex- ceptions ; that the Revolution was a case of necessity, and that they fully approved what * State Trials, 115. t Id., 127. t W., 61. 604 CONSTITUTIONAL HISTORY OF ENGLAND [Chap. XVI was done therein. They set up a distinc- tion, which, though at that time, perhaps, novel, has sometimes since been adopted by Tory witers : that resistance to the su- preme power was indeed utterly iUegal on any pretense whatever, but that the su- preme power in this kingdom was the Leg- islature, not the king; and that the Revo- lution took effect by the concurrence of the Lords and Commons.* This is of itself a descent from the high ground of Toryism, and would not have been held by the sin- cere bigots of that creed. Though specious, however, the argument is a sophism, and does not meet the case of the Revolution ; for, though the supreme power may be said to reside in the Legislature, yet the pre- rogative within its due limits is just as much part of the Constitution, and the question of resistance to lawful authority remains as be- fore. Even if this resistance had been made by the two houses of Parliament, it was but the case of the civil war, which had been explicitly condemned by more than one stat- ute of Charles II. But, as Mr. Lechmere said in reply, it was undeniable that the Lords and Commons did not join in that resistance at the Revolution as part of the legislative and supreme power, but as pai-t of the collective body of the nation ;f and Sir John Holland had before obseiTed, " that there was a resistance at the Revolution was most plain, if taking up arms in York- shire, Nottinghamshire, Cheshire, and al- most all the counties of England ; if the de- seition of a prince's own ti-oopis to an in- vading prince, and turning their arms against their sovereign, be resistance."! It might, * State Trials, 196, 229. It is observed by Cun- ningham, p. 286, that Sacheverell's counsel, except Pbipps, were ashamed of him, which is really not far from the case. " The doctor," says Lockhart, " employed Sir Simon, afterward Lord Harcourt, and Sir Constantine Phipps, as his counsel, who defended him the best way they could, though they were hard put to it to maintain the hereditary right and unlimited doctrine of non-resistance, and not condemn the Revolution. And the truth on it is, these are so inconsistent with one another, that the chief arguments alleged in this and other par- j allel cases came to no more than this : that the ' Revolution was an exceprion from the nature of | government in general, and the Consritution and laws of Britain in particular, which necessity, in that particular case, made expedient and lavrful." —Ibid. f State Trials, 407. t M., 110. in fact, have been asked whether the Dukes of Leeds and Shrewsbury, then sitting in judgment on SachevereU (and who after- ward voted him not guilty), might not have been convicted of treason if the Prince of Orange had failed of success?* The ad- vocates, indeed, of the prisoner made so many concessions as amounted to an aban- donment of all the general question. They relied chiefly on numerous passages in the Homilies, and most approved writers of the Anglican Church, asserting the duty of un- bounded passive obedience ; but the mana- gers eluded these in their reply with decent respect.f The Lords voted SachevereU guilty by a majority of 67 to 59, several voting on each side rather according to their present faction than their own principles. They passed a slight sentence, interdicting him only from preaching for three years. This was deemed a sort of triumph by his adherents ; but a severe punishment on one so insignificant would have been misplaced ; and the sentence may be compared to the * Cunningham says that the Duke of Leeda spoke strongly in favor of the Revolution, though he voted SachevereU not gnilty. — P. 298. Lock- liart observes, that he added success to necessity, as an essential point for rendering the Revolution lawful. t The Homilies are so much more vehement against resistance than SachevereU was, that it would have been awkward to pass a rigorous sentence on him. In fact, he or any other clergy- man had a right to preach the Homily against Re- bellion instead of a sermon. As to their laying down general rules without adverting to the ex- ceptions, an apology which the managers set up for them, and it was just as good for SachevereU ; and the Homilies expressly deny all possible ex- ceptions. TiUotson had a plan of dropping these old compositions, which in some doctrinal points, as well as in the tenet of non-resistance, do not represent the sentiments of the modem Church, though, in a general way, it subscribes to them. But the times were not ripe for this, or some other of that good prelate's designs. — Wordsworth's Eccles. Biog., vol. vi. The quotations from the Homilies and other approved works by Sachever- ell's counsel are irresistible, and must have in- creased the party spirit of the clergj-. " No con- juncture of circumstances whatever," says Bishop Sanderson, " can make that expedient to be done at any time that is of itself, and in the kind, un- lawful ; for a man to take up arms offensive or defensive against a lawful sovereign, being a thing in its nature simply and de toto genere unlawfiil, may not be done by any man, at any time, in any case, upon any color or pretense whatsoever."— State Trials, 231. AiTNE, Geo. I., Geo. II.] FROM HENRY VII. TO GEORGE II. 605 nominal damages sometimes given in a suit instituted for the trial of a great right. The shifting combinations of party in the Rcvolutioa reign of Anne, which affected the istJy under ""giial distinctions of "Whig and Anne. Tory, though generally known, must be shortly noticed. The queen, whose understanding and fitness for government were below mediocrity, had been attached to the Tories, and bore an antipathy to her predecessor. Her first ministry, her first Parliament, gave presage of a government to be wholly conducted by that party. But this prejudice was counteracted by the per- suasions of that celebrated favorite, the wife of Marlborough, who, probably from some personal resentments, had thrown her in- fluence into the scale of the Whigs. The well-known records of their conversation and correspondence present a strange picture of good-natured feebleness on one side, and of ungrateful insolence on the other. But the interior of a court will rarely endure day- light. Though Godolphin and Marlborough, in whom the queen reposed her entire con- fidence, had been thought Tories, they be- came gradually alienated from that party, and communicated their own feelings to the queen. The House of Commons very reas- onably declined to make an hereditaiy grant to the latter out of the revenues of the post- oflSce in 1702, when he had performed no exti'aordinary services, though they acceded to it without hesitation after the battle of Blenheim.* This gave some offense to Anne ; and the chief Tory leaders in the cabinet, Rochester, Nottingham, and Buck- ingham, displaying a reluctance to carry on the war with such vigor as Marlborough knew to be necessary, were soon removed from ofl[ice. Their revengeful attack on the queen, in the address to invite the Princess Sophia, made a return to power hopeless for several years. Anne, however, enter- tained a desire very natm-al to an English sovereign, yet in which none but a weak one wUl expect to succeed, of excluding chiefs of parties from her councils. Disgusted with the Tories, she was loth to admit tlie * Pari. Hist., vi., 57. They did not scruple, however, to say what cost nothing bat veracity and gratitude, that Marlborough had retrieved the honor of the nation. This was justly objected to, as reflecting on the late king, bat carried by 180 to 80.— Id., 58. Burnet. Whigs; and thus Godolphin's administra- tion, from 1704 to 1708, was rather sullenly supported, sometimes, indeed, thwarted, by that party. Cowper was made chancellor against the queen's wishes ;* but the junto, as it was called, of five eminent Whig peers, Somers, Halifax, Wharton, Oxford, and Sunderland, were kept out through the queen's dislike, and in some measure, no question, through Godolphin's jealousy. They forced themselves into the cabinet about 1708, and effected the dismissal of Harley and St. John, who, though not of the regular Tory school in connection or princi- ple, had already gone along with that faction in the late reign, and were now reduced by their dismissal to unite with it.f The Whig ministry of Queen Anne, so often talked of, can not, in fact, be said to have existed more than two years, from 1708 to 1710; her previous administi'ation having been at first Tory, and afterward of a motley complexion, though depending for existence on the great Whig interest which it in some degree pro- scribed. Every one knows that this min- istiy was precipitated from power through the favorite's abuse of her ascendency, be- come at length intolerable to the most for- bearing of queens and mistresses, conspiring with another inti-igue of the bed-chamber, and the popular clamor against Sacheverell's impeachment-t It seems rather a humilia- ting proof of the sway which the feeblest prince enjoys even in a limited monarchy, * Coxe's Marlborough, i., 483. Mr. Smith was chosen speaker by 248 to 205, a slender majority ; but some of the ministerial party seem to have thought him too much a Whig. — Id., 485. Pari. Hist., 450. The Whig pamplileteers were long hostile to Marlborough. t Burnet rather gently slides over these jealou- sies between Godolphin and the Whig junto ; and Tindal, his mere copyist, is not worth mentioning. But Cunningham's history, and, still more, the let- ters published in Coxe's Life of Marlborough, show better the state of party intrigues ; which the Par- liamentary History also illustrates, as well as many pamphlets of the time. Somerville has carefully compiled as much as was known when he wrote. t [If we may believe Swift, the queen had be- come alienated from the Duchess of Marlborough as far back as her accession to the throne ; the ascendant of the latter being what " her majesty had neither patience to bear nor spirit to subdue." —Memoirs relating to the Change in the Ciueen's Ministry. But Coxe seems to refer the com- mencement of the coldness to 1706.— Life of Marl- borough, p. 151.— 1845.] 606 CONSTITUTIONAL HISTORY OT ENGLAND [Chap. XVL that the foitunes of Europe should have been changed by nothing more noble than the insolence of one waiting woman and the cunning of another. It is ti'ue that this was effected by throwing the weight of the crown into the scale of a powerful faction ; yet the house of Bourbon would probably not have I'eigned beyond the Pyrenees but for Sarah and Abigail at Queen Anne's toilet.* The object of the war, as it is commonly War of the Called, of the Grand Alliance, Succession, commenced in 1702, was, as ex- pressed in an address to the House of Commons, for preserving the liberties of Europe and reducing the exorbitant power * [" It is most certain, that when the queen first began to change her servants, it was not from a dislike of things, but of persons, and those persons a very small number." — Swift's Inquiry into the Behavior of the dueen's last Mmistry. Though this authority is not always trustworthy, I incline to credit what is here said, confirmed by his pri- vate letters to Stella at this time. " It was the issue," he goes on to inform us, " of SachevereU'g trial which encouraged her to proceed so far. She then determined to dissolve Parliament, having previously only designed to turn out one family. The Whigs, on this, resolved to resign, which she accepted unwillingly from Somers and Cowper, both of whom, especially the former, she esteemed as much as her nature was capable of" Her scheme was moderate and comprehensive, from which she never departed till near her death. She became very difiBcult to advise out of the opinion of having been too much directed, " so that few ministers had ever, perhaps, a harder game to play, between the jealousy and discontents of his [Oxford's] friends on one side, and the man- agement of the queen's temper on the other." His friends were anxious for further changes, with which he was not unwilling to comply, had not the Duchess of Somerset's influence been employed. The queen said, if she might not choose her own ser\'ants, she could not see what advantage she bad got from the change of ministry ; and so little was her heart set upon a Tory administration, that many employments in court and country, and a great majority of all commissions, remained in the hands of the other party. She lost the govern- ment the vote on Lord Nottingham's motion, and Beemed so little displeased, that she gave her hand to Somerset (who had voted against the court) to lead her out. But during her illness, in the winter of 1713, the Whigs were on the alert, which, he says, was so represented to her, that " she laid aside all schemes of reconciling the two opposite interests, and entered on a firm resolution of ad- hering to the old English principles." This pass- age is to be considered with a view to what we learn from other quarters about the " old English principles ;" which, whether Swift was aware of it or no, meant with many nothing less than the restoration of the house of Stuart. — 1845.] of France.* The occupation of the Span- ish dominions by the Duke of Anjou, on the authority of the late king's will, was assigned as its justification, together with the acknowledgment of the pretended Prince of Wales as successor to his father James. Charles, archduke of Austria, was recognized as King of Spain ; and as early as 1705, the restoration of that monarchy to his house is declared in a speech from the throne to be not only safe and advanta- geous, but glorious to England.f Louis XIV. had perhaps, at no time, much hope of retaining for his grandson the whole in- heritance he claimed ; and on several oc- casions made overtures for negotiation, but such as indicated his design of rather sacri- ficing the detached possessions of Italy and the Netherlands than Spain itself and the Indies. t After the battle of Oudenarde, however, and the loss of LiUe in the cam- paign of 1708, the exhausted state of France and discouragement of his court induced him to acquiesce in the cession of the S pan- ish monarchy as a basis of treaty. In the conferences of the Hague in 1709, he strug- gled for a time to preserve Naples and Sic- ily, but ultimately admitted the terms im- posed by the allies, with the exception of the famous thirty-seventh article of the preliminaries, binding him to procure by force or persuasion the resignation of the Spanish crown by his grandson within two months. This proposition he declared to be both dishonorable and impracticable ; and, the allies refusing to give way, the negotia- tion was broken off. It was renewed the next year at Gertruydenburg, but the same obstacle still proved insurmountable. § It has been the prevailing opinion in mod- ern times that the English ministry, rather against the judgment of their allies of Hol- land, insisted upon a condition not indis- pensable to their security, and too igno- minious for their fallen enemy to accept. Some may, perhaps, incline to think that, even had Philip of Anjou been suffered to reign in Naples, a possession rather honor- * Pari. Hist., vi., 4. t Nov. 27. PaiL Hist., 477. t Coxe's Marlborough, i., 453 ; ii., 110. Cun- ningham, ii., 52, 83. § Memoires de Torcy, vol. ii., passim. Coxe's Marlborough, vol. iii. Bolingbroke's Letters on Historj', and Lord Walpole's Answer to them. Cunningham, SomerviUe, 840. Anne, Geo. I., Geo. II.] FROM HENRY VII. TO GEORGE II. 607 able than important, the balance of power would not have been seriously affected, and the probability of durable peace been in- creased. This, however, it was not neces- saiy to discuss. The main question is as to the power which the allies possessed of securing the Spanish monarchy for the archduke, if they had consented to waive the thirty-seventh article of the prelimi- naries. If, indeed, they could have been considered as a single potentate, it was doubtless possible, by means of keeping up great armies on the fi-ontier, and by the deliveiy of cautionary towns, to have pre- vented the King of France from lending as- sistance to his grandson ; but, self-interest- ed and disunited as confederacies generally are, and as the gi-and alliance had long since become, this appeared a very dangerous course of policy, if Louis should be playing an underhand game against his engage- ments ; and this it was not then unreason- able to suspect, even if we should believe, in despite of some plausible authorities, that he was really sincere in abandoning so favor- ite an interest. The obstinate adherence of Godolphin and Somers to the prelimina- ries may possibly have been erroneous ; but it by no means deserves the reproach that has been unfairly bestowed on it ; nor can the Whigs be justly charged with protract- ing the war to enrich Marlborough, oi- to secure themselves in power.* * The late biog:rapher of Marlborough asserts that he was against breaking oiF the conferences in 1709, though clearly for insisting on the cession of Spain (iii., 40). Godolphin, Somers, and the Whigs in general, expected Louis XIV. to yield the thirty-seventh article. Cowper, however, was always doubtful of this. — Id., 176. It is very hard to pronounce, as it appears to me, on the great problem of Louis's sincerity in this negotiation. No decisive evidence seems to have been brought on the contrary side. The most remarkable authority that way is a passage in the M^moires of St. Phelipe, iii., 263, who certainly as- serts that the King of France had, without the knowledge of any of his ministers, assured his grandson of a continued support. But the ques- tion returns as to St. Phelipe's means of knowing so important a secret. On the other hand, I can not discover in the long correspondence between Madame de Maintenon and Princesse des Ursins the least corroboration of these suspicions, but much to the contrary efiect ; nor does Torcy drop a word, though writing when all was over, by which we should infer that the court of Versailles had any other hopes left in 1709 than what still The conferences at Gertruydenburg were broken off in July, 1710, rp^^^ty of because an absolute security for peace bro- the evacuation of Spain by Phil- ip appeared to be wanting ; and within six months a fresh negotiation was secretly on foot, the basis of which was his retention of that kingdom ; for the administration pre- sided over by Godolphin. had fallen mean- while ; new counselors, a new Parliament, new principles of government. The Tories had from the beginning come very reluct- antly into the schemes of the grand alliance; though no opposition to the war had ever been shown in Parliament, it was very soon perceived that the majority of that denomi- nation had their hearts bent on peace.* But instead of renewing the ne- Renewed gotiation in concert with the al- the To^y lies (which, indeed, might have government, been impracticable), the new ministers fell upon the course of a clandestine arrange- ment, in exclusion of ail the other powers, lingered in their heart from the determined spirit of the Castilians themselves. It appears by the Memoires de Noailles, iii., 10 (edit. 1777), that Louis wrote to PhiHp, 26th of Nov., 1708, hinting that he must reluctantly give him up, in answer to one wherein the latter had declared that he would not quit Spain while he had a drop of blood in his veins ; and on the French am- bassador at Madrid, Amelot, remonstrating against the abandonment of Spain, with an evident intima- tion that Philip could not support himself alone, the King of France answered that he must end the war at any price. — 15th of April, 1709. Id., 34. In the next year, after the battle of Saragosa, which seemed to turn the scale wholly against Philip, Noailles was sent to Madrid, in order to persuade that prince to abandon the contest — Id., 107. There were some in France who would even have accepted the thirty-seventh article, of whom Madame de Maintenon seems to have been. — P. 117. We may perhaps think that an explicit offer of Naples, on the part of the allies, would have changed the scene ; nay, it seems as if Louis would have been content at this time with Sar- dinia and Sicily. — P. 108. " A cotemporary historian of remarkable gravity observes, " It was strange to see how much the desire of French wine, and the dearness of it, alienated many men from the Duke of Marlbor- ough's friendship." — Cunningham, ii., 220. The hard drinkers complained that they were poisoned by port: these formed almost a party ; Dr. Aldrich, dean of Christ Church, sumamed the priest of Bac- chus, Dr. Ratcliff, General Churchill, &c ; " and all the bottle companions, many physicians, and great numbers of the lawyers and inferior clergy, and, in fine, the loose women too, were united together in the faction against the Duke of Marlborough." 608 CONSTITUTIONAL HISTORY OV ENGLAND [Chap. XVI. which led to the signature of preliminaries in September, 1711, and afterward to the public congi-ess of Utrecht, and the cele- brated treaty named from that town. Its chief provisions are too well known to be repeated. The arguments in favor of a treaty of pacification, which should abandon the great point of contest, and leave Philip in pos- session of Spain and America, were neither few nor inconsiderable. 1. The kingdom Arguments been impoverished by twenty for and years of uninterruptedly augment- againstthe *' , , , . , treaty of ed taxation, the annual burdens Utrecht. being triple in amount of those paid before the Revolution. Yet, amid these sacrifices, we had the mortification of finding a debt rapidly increasing, whereof the mere interest far exceeded the ancient revenues of the crown, to be bequeathed, like an hereditary curse, to unborn ages.* Though the supplies had been raised with less difficulty than in the late reign, and the condition of trade was less unsatisfactory, the landed proprietors saw with indignation the silent transfer of their wealth to new men, and almost hated the glory that was brought by their own degradation.! Was it not to be feared that they might hate also the Revolution, and the Protestant succes- sion that depended on it, when they tasted these fruits it had borne ? Even the army had been recruited by violent means un- known to our Constitution, yet such as the continual loss of men, with a population at Uie best stationary, had perhaps rendered necessary. t * [The national debt, 31st of Dec, 1714, amount- ed, according to Chalmers, to i;50,644,306. Sin- clair makes it £52,145,363. But about half of this ■was temporary annuities. The whole expenses of the war are reckoned by the former writer at i;65,853,799. The interest of the debt was, as computed by Chalmers, X2.81],903; by Sinclair, £3,351,358.-1845.] t ["Power," says Swift, "which, according to the old maxim, was used to follow land, is now gone over to money ; so that, if the war continue some years longer, a landed man will be little bet- ter than a farmer of a rack rent to the army and to the public funds." — Examiner, No. 13, Oct., 1710.-1845.] t A bill was attempted in 1704 to recruit the army by a forced conscription of men from each parish, but laid aside as tmconstitutioual. — Boyer's Beign of aueen Anne, p. 123. It was tried again in 170Y with like success.— P. 319. But it was re- solved instead to bring in a bill for raising a snffi- 2. The prospect of reducing Spain to the archduke's obedience was grown unfavor- able. It was at best an odious work, and not very defensible on any maxims of na- tional justice, to impose a sovereign on a gi'eat people in despite of their own re- pugnance, and what they deemed their loyal obligation. Heaven itself might shield their righteous cause, and baffle the selfish rapacity of human politics. But what was the state of the war at the close of 1710 7 The surrender of 7000 English under Stanhope at Brihuega had ruined the af- fairs of Charles, which, in fact, had at no time been truly prosperous, and confined him to the single province sincerely at- tached to him, Catalonia. As it was cer- tain that Philip had spirit enough to con- tinue the wai', even if abandoned by his grandfather, and would have the support of almost the entire nation, what remained but to carry on a very doubtful contest for the subjugation of that extensive kingdom ? In Flanders, no doubt, the genius of Marl- borough kept still the ascendant ; yet France had her Fabius in Villars ; and the capture of three or four small fortresses in a whole campaign did not presage a rapid destruction of the enemy's power. 3. It was acknowledged that the near connection of the monarchs on the thrones of France and Spain could not be desired for Europe ; yet the experience of ages had shown how little such ties of blood de- termined the policy of courts ; a Bourbon on the throne of Spain could not but assert the honor, and even imbibe the prejudices, of his subjects ; and as the two nations were in all things opposite, and must clash in their public interests, there was little reason to fear a subserviency in the cabinet of Madrid, which, even in that absolute monarchy, could not be displayed against the general sentiment. 4. The death of the Emperor Joseph, and election of the Archduke Charles in his room, which took place in the spring cient number of troops out of such persons as have no lawful calling or employment. — Stat. 4 Anne, c. 10. Pari. Hist, 335. The parish officers were thus enabled to press men for the land service ; a method hardly more unconstitutional than the for- mer, and liable to enormous abuses. The act was temporary, but renewed several times during the war. It was afterward revived in 1757 (30 Geo 11., c. 8), but never, I believe, on any later occasioa Anne, Geo. I., Geo. 11.] FROM HENIiY VII. TO GEORGE 11. 609 of 1711, changed in no small degree the circumstances of Europe. It was now a struggle to unite the Spanish and Austrian monarchies under one head. Even if En- gland might have little interest to prevent this, could it be indifferent to the smaller states of Europe that a family not less am- bitious and encroaching than that of Bour- bon should be so enormously aggi-andized ? France had long been to us the only source of apprehension ; but to some states, to Savoy, to Switzerland, to Venice, to the principalities of the empire, she might just- ly appear a very necessary bulwark against the aggi-essions of Austria. The alliance could not be expected to continue faithful and unanimous after so important an alter- ation in the balance of power. 5. The advocates of peace and adherents of the new ministry stimulated the national passions of England by vehement reproach- es of the allies. They had thrown, it was contended, in despite of all treaties, an un- reasonable proportion of expense upon a country not directly concerned in their quarrel, and rendered a negligent or crim- inal administration their dupes or accom- plices. We were exhausting our blood and treasure to gain kingdoms for the house of Austria which insulted, and the best towiis of Flanders for the States-General who cheated us. The barrier treaty oi Lord Townshend was so extravagant, that one might wonder at the presumption of Hol- land in suggesting its articles, much more at the folly of our government in acceding to them. It laid the foundation of endless dissatisfaction on the side of Austria, thus reduced to act as the vassal of a little re- public in her own territories, and to keep up fortresses at her own expense which others were to occupy. It might be an- ticipated that, at some time, a sovereign of that house would be found more sensible to ignominy than to danger, who would re- move this badge of humiliation by disman- tling the fortifications which were thus to be defended. Whatever exaggeration might be in these clamors, they were sure to pass for undeniable truths with a people jealous of foreigners, and prone to believe itself imposed upon, from a consciousness of gen- eral ignorance and credulity. These arguments were met by answers not less confident, though less successful at Rr the moment, than they have been deemed convincing by the majority of politicians in later ages. It was denied that the resour- ces of the kingdom were so much enfeebled ; the sujiplies were still raised without diffi- culty ; commerce had not declined ; public credit stood high under the Godolphin ministry ; and it was especially remarkable that the change of administration, notwith- standing the prospect of peace, was attend- ed by a great fall in the price of stocks. France, on the other hand, was notoriously reduced to the utmost distress ; and, though it were absurd to allege the misfortunes of our enemy by way of consolation for our own, yet the more exhausted of the two combatants was naturally that which ought to yield ; and it was not for the honor of our free government that we should be out- done in magnanimous endurance of priva- tions for tlie sake of the great interests of ourselves and our posterity by the despot- ism we so boastfully scorned.* The King of France had now for half a century been pursuing a system of encroachment on the neighboring states, which the weakness of the two branches of the Austrian house, and the perfidiousness of the Stuarts, not less than the valor of his troops and skill of liis generals, had long rendered successful. The tide had turned for the first time in the present war ; victories more splendid than were recorded in modern warfare had illustrated the English name. Were we spontaneously to relinquish these great ad- vantages, and two years after Louis had himself consented to withdraw his forces from Spain, our own arms having been in the mean time still successful on the most important scene of the contest, to throw up the game in despair, and leave him far more the gainer at the termination of this calam- itous war than he had been after those tri- umphant campaigns which his vaunting medals commemorate? Spain of herself could not resist the confederates, even if united in support of Philip, which was de- * Every cotemporary writer bears testimony to the exhaustion of France, rendered still more de- plorable by the unfavorable season of 1709, which produced a famine. Madame de Maintenon's let- ters to the Princesse des Ursins are full of the pub- lic misery, which she did not soften, out of some vain hope that her inflexible correspondent might relent at length, and prevail on the King and Q.ueen of Spain to abandon their throne. 610 CONSTITUTIONAL HISTORY OF ENGLAND [Chap. XVL nied as to the provinces composing the king- dom of Aragon, and certainly as to Catalo- nia it was in Flanders that Castile was to be conquered ; it was France that we were to overcome ; and now that her iron barrier had been broken through, when Marlbor- ough was preparing to pour his troops upon the defenseless plains of Picardy, could we doubt that Louis must in good earnest aban- don the cause of his grandson, as he had al- ready pledged himself in the conferences of Gertruydenburg ? 2. It was easy to slight the influence which the ties of blood exert over kings. Doubtless they are often torn asunder by ambition or wounded pride. But it does not follow that they have no efficacy ; and the practice of courts in cementing alliances by intermarriage seems to show that they are not reckoned indifferent. It might, how- ever, be admitted, that a king of Spain, such as she had been a hundred years before, would probably be led by the tendency of his ambition into a course of policy hostile to France. But that monarchy had long been declining; great rather in name and extent of dominion than intrinsic resources, she might perhaps rally for a short period under an enterpi-ising minister ; but with such inveterate abuses of government, and so little progressive energy among the peo- ple, she must gi-adually sink lower in the scale of Europe, till it might become the chief pride of her sovereigns that they were the younger branches of the house of Bour- bon. To cherish this connection would be the policy of the court of Versailles; there would result from it a dependent relation, an habitual subserviency of the weaker pow- er, a family compact of perpetual union, al- ways opposed to Great Britain. In distant ages, and after fresh combinations of the Eu- ropean Commonwealth should have seemed almost to efface the recollection of Louis XIV. and the War of the Succession, the Bourbons on the French throne might still claim a sort of pi-imogenitaiy right to pro- tect the dignity of the junior branch by in- terference with the affairs of Spain ; and a late posterity of those who witnessed the peace of Utrecht might be entangled by its improvident concessions. 3. That the accession of Charles to the empu"e rendered his possession of the Span- ish monarchy in some degi'ee less desirable. need not be disputed ; though it would not be easy to prove that it could endanger En- gland, or even the smaller states, since it was agi'eed on all hands that he was to be master of Milan and Naples ; but against this, perhaps imaginary, mischief the op- ponents of the treaty set the risk of see- ing the crowns of France and Spain united on the head of Philip. In the years 1711 and 1712, the dauphin, the Duke of Bur- gundy, and the Duke of Berry v/ere swept away. An infant stood alone between the King of Spain and the French succession. The latter was induced, with some unwill- ingness, to sign a renunciation of this con- tingent inheritance ; but it was notoriously the doctrine of the French court that such renunciations were invalid ; and the suffer- ings of Europe were chiefly due to this tenet of indefeasible royalty. It was very possible that Spain would never consent to this union, and that a fresh league of the great powers might be formed to prevent it ; but, if we had the means of permanently separating the two kingdoms in our hands, it was strange policy to leave open this door for a renewid of the quarrel. But, whatever judgment we may be dis- posed to form as to the political * Ihene^otia* necessity of leavmg Spain and Amevica in the possession of Philip, it is impossible to justify the course of that negotiation which ended in the peace of Utrecht. It was, at best, a dangerous and inauspicious concession, demanding ev- ery compensation that could be devised, and which the circumstances of the war enti- tled us to require. France was still our formidable enemy; the ambition of Louis was still to be dreaded, his intrigues to be suspected. That an English minister should have thrown himself into the arms of this enemy at the first overture of negotiation ; that he should have renounced advantages upon which he might have insisted; that he should have restored Lille, and almost attempted to procui-e the sacrifice of Tour- nay ; that throughout the whole correspond, cnce and in all personal interviews with Torcy ho should have shown the triumph- ant Queen of Great Britain more eager for peace than her vanquished adversary ; that the two courts should have been virtually conspiring against those allies, without whom we had bound ourselves to enter on Anne, Geo. I., Geo. U.] TROM HENRY VII. TO GEORGE II. 611 no treaty; that we should have withdiawn our troops in the midst of a campaign, and »>ven seized upon the towns of our confed- erates while we left them exposed to be overcome by a superior force ; that we should have first deceived those confeder- ates by the most direct falsehood in deny- ing our clandestine treaty, and then dictated to them its acceptance, are facts so disgrace- ful to Bolingbroke, and in somewhat a less degree to Oxford, that they can hardly be palliated by establishing the expediency of the treaty itself.* For several years after the treaty of Rys- Intrigucs of wick the intrigues of ambitious the Jacubites. discontented statesmen, and of a misled faction in favor of the exiled family, gi-ew much colder, the old age of James and the infancy of his son being alike incompatible with their success. The Jac- obites yielded a sort of provisional allegi- ance to the daughter of their king, deeming her, as it were, a regent in the heir's mi- nority, and willing to defer the considera- tion of his claim till he should be competent to make it, or to acquiesce in her continu- ance upon the throne, if she could be in- duced to secure his reversion. f Mean- while, under the name of Tories and High- Churchmen, they carried on a more diin- gerous war by sapping the bulwarks of the Revolution settlement. The disaffected clergy poured forth sermons and libels to impugn the principles of the Whigs or tra- duce their characters. Twice a year espe- cially, on the 30th of January and 29th of May, they took care that every stroke upon rebellion and usurpation should tell against the expulsion of the Stuarts and the Hano- ver succession. They inveighed against the Dissenters and the Toleration. They set up pretenses of loyalty toward the * [Bolingbroke owns, in his Letters on the Study of Historj', Letter viii., that the peace of Utrecht was not what it should have been, and that France should have given up more ; but singularly lays the blame of her not having done so on those who opposed the peace. It appears, on the contrary, from his con-espondence, that the strength of this opposition at home was the only argument he used with Torcy to save Tonmay and other places, as far as he cared to save them at all. — 1845.] t It is evident from Macpherson's Papers that all hopes of a present restoration in the reign of Anne were given up in England. They soon re- vived, however, as to Scotland, and grew stronger about the time of the Union. queen, descanting sometimes on her he- reditary right, in oi'der to throw a slur on the settlement. They drew a transparent veil over their designs, which might screen them from prosecution, but could not im- pose, nor was meant to impose, on the read- er. Among these, the most distinguished was Leslie, author of a periodical sheet called the Rehearsal, printed weekly from 1704 to 1708; and as he, though a non-ju- ror and unquestionable Jacobite, held only the same language as Sacheverell, and oth- ers who affected obedience to the govern- ment, we can not much be deceived in as- suming that their views were entirely the same.* The court of St. Germain, in the first years of the queen, preserved a gome of the secret connection with Godol- ministers en- phin and Marlborough, though e»8« justly distrustful of their sincerity; nor is it by any means clear that they made any strong professions. f Their evident determ- * The Rehearsal is not written in such a manner as to gain over many proselytes. The scheme of fighting against liberty with her own arms had not yet come into vogue; or, rather, Leslie was too mere a bigot to practice it. He is wholly for arbi- trary power ; but the common stuff of his journal is High-Church notions of all descriptions. This could not win many in the reign of Anne. t Macpherson, i., COS. If Carte's anecdotes are true, which is very doubtful, Godolphiu, after he was turned out, declared his concern at not having restored the king ; that he thought Harley would do it, but by French assistance, which he did not intend ; that the Tories had always distressed him, and his administration had passed in a struggle with the Whig junto. — Id., 170. SomerviUe says, he was assured that Carte was reckoned credulous and ill-informed ■ by the Jacobites. — P. 273. It seems, indeed, by some passages in Macpherson's Papers, that the Stuait agents either kept up an intercourse with Godolphin. or pretended to do so. — Vol. ii., 2, et post. But it is evident that they had no confidence in him. It must be observed, however, that Lord Dart- mouth, in his notes on Burnet, repeatedly intimates that Godolphin's secret object in his ministry was the restoration of the house of Stuart, and that with this view he suffered the Act of Security in Scot- land to pass, which raised such a clamor that he was forced to close with the Whigs in order to save himself. It is said, also, by a very good au- thority, Lord Hardwicke (note on Burnet, Oxf. edit., v., 3.52), that there was something not easy to be accounted for in the conduct of the ministry, preceding the attempt on Scotlaud in 1708 ; giving us to understand in the subsequent part of the note that Godolphin was suspected of connivance with it ; and this is confirmed by Ker of Kersland, who 612 CONSTITUTIONAL HISTORY OF ENGLAND [Chap. XVI. ination to reduce the power of France, their approximation toward the Whigs, the Hverseness of the duchess to Jacobite prin- ciples, taught, at length, that unfortunate court how little it had to expect from such ancient friends. The Scotch Jacobites, on the other hand, were eager for the young king's immediate restoration ; and their as- surances finally produced his unsuccessful expedition to the coast in 1708.* This alarmed the queen, who at least had no thoughts of giving up any part of her do- minions, and pi'obably exasperated the two ministers.! Though Godolphin's partiality to the Stuart cause was always suspected, the proofs of his intercourse with their em- issaries are not so strong as against Marl- borough, who, so late as 1711, declared him- self more positively than he seems hitherto to have done in favor of their restoration, t but the extreme selfishness and treachery of his character makes it difficult to believe that he had any further view than to secure himself in the event of a revolution which he judged probable. His interest, which was always his deity, did not lie in that di- rection, and his great sagacity must havr perceived it. A more promising overture had by this Just alarm time been made to the young for the Han- daimant from an opposite quar- over succes- ' r » sion. ter. Mr. Harley, ixbout the end of 1710, sent the Abbe Gaultier to Marshal Berwick (natural son of James II. by Marl- borough's sister), with authority to treat about the Restoration ; Anne, of course, re- taining the cro^vn for her life, and securities being given for the national religion and lib- erties. The conclusion of peace was a nec- essary condition. The Jacobites in the English Parliament were directed, in con- sequence, to fall in with the court, which rendered it decidedly superior. Harley promised to send over in the next year a directly charges the treasurer with extreme re- missness, if not something worse. — Memoirs, i., 54. See, also, Lockhart's Commentaries (in Lockhart Papers, i., 308). Yet it seems almost impossible to suspect Godolphiu of such treachery, not only toward the Protestant succession, but his mistress herself. * Macpherson, ii., 74, et post. Hooke's Negotia- tions. Lockhart's Commentaries. Ker of Kers- land's Memoirs, i., 45. Burnet. Cunningham. Somerville. t Bnmet, 502. t Macpherson, ii., 158, 228, 283, and see Somer- ville, 272. plan for carrying that design into effect; but neither at that time, nor during the re- mainder of tile queen's life, did this dissem- bling minister take any further measures, though still in strict connection with that party at home, and with the court of St. Germain.* It was necessary, he said, to proceed gently, to make the army their own, to avoid suspicions which would be fatal. It was manifest that the course of his administration was wholly inconsistent with his professions ; the friends of the house of Stuart felt that he betrayed, though he did not delude them ; but it was the misfortune of this minister, or, rather, the just and natural reward of crooked counsels, that those he meant to serve could neither believe in his friendship, nor forgive his ap- pearances of enmity. It is, doubtless, not easy to pronounce on the real intentions of men so destitute of sincerity as Harley and Marlborough ; but, in believing the former favorable to the Protestant succession, which he had so eminently contributed to establish, we accede to the judgment of those cotem- poi'aries who were best able to form one, nnd especially of the very Jacobites with whom he tampered. And this is so pow- erfully confirmed by most of his public measures, his averseness to the high Tories, and their consequent hatred of him, his ir- reconcilable disagreement with those of his colleagues who looked most to St. Germain's, his frequent attempts to renew a connection with the Whigs, his contempt of the Jaco- bite creed of government, and the little pros- pect he could have had of retaining power on such a revolution, that, so far, at least, as may be presumed from what has hitherto become public, there seems no reason for counting the Earl of Oxford among those from whom the house of Hanover had any enmity to apprehend. f * Memoirs of Berwic's, 1778 (English transla- tion) ; and compare Lockhart's Commentaries, p. 368. Macpherson, sub ann. 1712 and 1713, passim. t The pamphlets on Harley's side, and probably written under his inspection, for at least the first year after his elevation to power, such as one en- titled "Faults on both Sides," ascribed to Richard Harley, his relation (Somers Tracts, xii., 678i, " Spectator's Address to the "VVniigs on Occasion of the Stabbing Mr. Harley," or the " Secret Histo- ry of the October Club," 1711 (I believe by De Foe), seem to have for their object to reconcile as many of the Whigs as possible to his administra- tioa, and to display his aversion to the \'iolent Anne, Geo. I., Geo. II.] FROM HENIIY VII. TO GEORGE II. 613 The Pretender, meanwhile, had friends in the Tory government more sincere, prob- ably, and zealous than Oxford. In the year 1712, Lord Bolingbroke, the Duke of Buck- ingham, president of the council, and the Duke of Ormond, were engaged in this con- nection.* The last of these being in the Tories. There can be no doubt tbat his first project was to have excluded the more acrimouious Whigs, such as Wharton and Sunderland, as well as the Duke of Marlborough and his wife, and coalesced with Cowper and Somers, both of whom were also in favor of the queen. But the steadiness of the Whig party, and their resentment of his duplicity, forced him into the opposite quarters, though he never lost sight of his schemes for reconciliation. The dissembling nature of this unfortunate states- man rendered his designs suspected. The Whigs, at least in 1713, in their correspondence with the court of Hanover, speak of him as entirely in the Jacobite interest. — Macpherson, ii., 472, 509. Cun- ningham, who is not, on the whole, unfavorable to Harley, says that " men of all parties agreed in concluding that his designs were in the Pretender's favor; and it is certain that he affected to have it thought so." — P. 303. Lockhart also bears wit- ness to the reliance placed on him by the Jacobites, and argues with some plausibihty (p. 377) that the Duke of Hamilton's appointment as ambassador to France, in 1712, must have been designed to fur- ther their object ; though he believed that the death of that nobleman, in a duel with Lord Mo- hun, just as he was setting out for Paris, put a stop to the scheme, and "questions if it was ever heartily reassumed by Lord Oxford." " This I know, that his lordship, regretting to a friend of mine the duke's death next day after it happened, told him that it disordered all their schemes, see- ing Great Britain did not afford a person capable to discharge the trust which was committed to his grace, which sure was somewhat very extraordi- nary ; and what other than the king's restoration could there be of so very great importance, or re- quire such dexterity in managing, is not easy to imagine ; and, indeed, it is more than probable that before his lordship could pitch upon one he might depend on in such weighty matters, the discord and division which happened betwixt him and the other ministers of state diverted or suspended his design of serving the king." ^ — Lockhart's Com- mentaries, p. 410. But there is more reason to doubt whether this design to serve the king ever existed. * If we may trust to a book printed in 1717, with the title, " Minutes of Monsieur Mesnager's Nego- tiations with the Court of England toward the Close of the last Reign, written by himself," that agent of the French cabinet entered into an ar- rangement with Bolingbroke in March, 1712, about the Pretender. It was agreed that Louis should ostensibly abandon hira, but should not be obliged, in case of the queen's death, not to use endeavors for his restoration. Lady Masham was wholly for this ; but owned " the rage and irreconcilable aver- sion of the greatest part of the common people to command of the army, little glory as that brought hira, might become aa important her (the queen's) brother was grown to a height." But I must confess that, although Macpherson has extracted the above passage, and a more judicious writer, Somerville, quotes the book freely as gen- uine (Hist, of Anne, p. 581, &c.), I found in reading it what seemed to me the strongest grounds of suspicion. It is printed in England, without a word of preface to explain how such important se- crets came to be divulged, or by what means the book was brought before the world ; the con-ect information as to English customs and persons fre- quently betrays a native pen ; the truth it contains, as to Jacobite intrigues, might have transpired from other sources, and in the main was pretty well suspected, as the Report of the Secret Com- mittee on the Impeachments in 1715 shows; so that, upon the whole, I can not but reckon it a forgery in order to injure the Tory leaders. [In a note on Swift's Works, vol. xxv., p. 37 (1779), it is said, on the authority of Savage, that "no such book was ever printed in the French tongue, from which it is impudently said to be translated as Mesnager's Negotiations." And, on reference to Savage's poem, entitled False Historians. I find this couplet : ■* Some usurp names — an English garreteer, From minutes forg'd, is Monsieur Mesnager." I think that the book has been ascribed to De Foe.— 1845.] But, however this may be, we find Bolingbroke in con'espondenee with the Stuart agents in the latter part of 1712. — Macpherson, 366. And his own coiTespondence with Lord Stratford shows his dread and dislike of Hanover. — (Bol. Con-., ii., 487, et alibi.) The Duke of Buckingham wrote to St. Germain's in July that year, with strong expres- sions of his attachment to the cause, and pressing the necessity of the prince's conversion to the Protestant religion. — Macpherson, 327. Ormond is mentioned in the Duke of Berwick's letters as in correspondence with him ; and Lockhart says there was no reason to make the least question of his af- fection to the king, whose friends were consequent- ly well pleased at his appointment to succeed Marlborough in the command of the army, and thought it portended some good designs in favor of him.— Id., 376. Of Ormond's sincerity in this cause, there can, indeed, be little doubt ; but there is almost as much reason to suspect that of Bohngbroke as of Oxford, except that, having more rashness and less princi- ple, he was better fitted for so dangerous a coun- ter-revolution. But in reality he had a perfect contempt for the Stuart and Tory notions of gov- ernment, and would doubtless have served the house of Hanover with more pleasure, if his pros- pects in that quarter had been more favorable. It appears that in the session of 1714, when he had become lord of the ascendant, he disappointed the zealous Royalists by his delays as much as his more cautious rival had done before. — Lockhart, 470. This writer repeatedly asserts that a majori- ty of the House of Commons, both in the Parlia- ment of 1710 and that of 1713, wanted only the 614 CONSTITUTIONAL HISTORY OF ENGLAND [Chap. XVL auxiliaiy. Harcourt, the chancellor, though the proofs are not, I believe, so direct, has alwaj-s been reclioned in the same interest. Several of the leading Scots peers, with lit- tle disguise, avowed their adherence to it, especially the Duke of Hamilton, who, luckily, perhaps, for the kingdom, lost his life in a duel, at the moment when he was setting out on an embassy to France. The rage expressed by that faction at his death betrays the hopes they had entertained from him. A strong phalanx of Tory members, called the October Club, though by no means entirely Jacobite, were chiefly influ- enced by those who were such. In the new Parliament of 1713, the queen's pre- carious health excited the Stuart partisans to press forward with more zeal. The mask was more than half drawn aside ; and, vain- ly urging the ministry to fulfill their promis- es while yet in time, thej' cursed the insid- ious cunning of Harley and the selfish cow- ardice of the queen. Upon her they had for some years relied. Lady Masham, the bosom favorite, was entirely theirs ; and ev- ery word, every look of the sovereign, had been anxiously obsei-ved, in the hope of some indication that she would take the road which afliection and conscience, as they fond- ly argued, must dictate. But, whatever may have been the sentiments of Anne, her se- cret was never divulged, nor is there, as I apprehend, however positively the contrary 13 sometimes asserted, any decisive evidence least encouragement from the court to have brought about the repeal of the Act of Settlement. But I think this very doubtful ; and I am quite convinced that the nation v^ould not have acquiesced in it. Lockhart is sanguine, and ignorant of England. It must be admitted that part of the cabinet were steady to the Protestant succession. Lord Dartmouth, Lord Powlett, Lord Trevor, and the Bishop of London were certainly so ; nor can there be any reasonable doubt, as I conceive, of the Duke of Shrewsbury. On the other side, besides Or- mond, Harcourt, and Bolingbroke, were the Duke of Buckingham, Sir William Wyndham, and prob- ably Mr. Bromley. [The impression which Boliug- broke's letter to Sir WilUam Wyndham leaves on the mind is, that, having no steady principle of action, he had been all along fluctuating between Hanover and St. Germain's, according to the pros- pect he saw of standing well with one or the other, and in a great degree, according to the politics of Oxford, being determined to take the opposite line. But he had never been able to penetrate a more dissembling spirit than his own. This letter, as is well known, though written in 1717, was not pub- lished till after Bolingbroke's death. — 1845.] I whence we may infer that she ever intend- ed her brother's restoration.* The weakest * It is said that the Duke of Leeds, who waa I now in the Stuart interest, had sounded her in j 1711, but with no success in discovering her inten- tion.— Macpherson, 212. The Uuke of Bucking- ham pretended, in the above-mentioned letter to St. Germain's. June, 1712, that he had often pressed the queen on the subject of her brother's restora- tion, but could get no other answer than, " You see he does not make the least step to oblige me ;" or, '■ He may thank himself for it: he knows I always loved him better than the other." — Id., 328. This alludes to the Pretender's pertiuacit)', as the writer thought it, in adhering to his religion ; and it may be very questionable whether he had ever such conversation with the queen at all ; bat if he had, it does not lead to the supposition that under all circumstances she meditated his restoration. If the book under the name of Mesnager is genuine, which I much doubt, Mrs. Masham had never been able to elicit any thing decisive of her majesty's inclinations ; nor do any of the Stuart correspond- ents in Macfjherson pretend to know her inten- tions with certainty. The following passage in Lockhart seems rather more to the purpose : On his coming to Parliament in 1710, with a "high monarchical address," which he had procured from the county of Edinburgh, "the queen told me, though I had almost always opposed her meas- ures, she did not doubt of my affection to her per- son, and hoped I would not concur in the design against Mrs. Masham, or for bringing over the Prince of Hanover. At first I was somewhat sur- prised, but recovering myself, I assured her I should never be accessary to the imposing any hardship or affront upon her; and as for the Prince of Hanover, her majesty might judge from the ad- dress I had read that I should not be acceptable to my constituents if I gave my consent for bringing over any of that family, either now or at any time hereafter. At that she smiled, and I withdrew; and then she said to the duke (Hamilton), she be- lieved I was an honest man and a fair dealer; and the duke replied, he could assure her I liked her majesty and all her father's bairns. ' — P. 317. It appears in subsequent parts of this book that Lock- hart and his friends were confident of the queen's inclinations in the last year of her life, though not of her resolution. The truth seems to be that Anne was verj- dis- sembling, as Swift repeatedly says in his private letters, and as feeble and timid persons in high station generally are : that she hated the house of Hanover, and in some measure feared them ; but that she had no regard for the Pretender (for it ia really absurd to talk like Somer^ille of natural af- fection under all the circumstances), and feared liim a great deal more than the other; that she had, however, some scruples about his right, which were counterbal.mced by her attachment to the Church of England ; consequently, that she waa wavering among opposite impulses, but with a pre- dominating timidity which would have probably kept her from any change. Anhe, Geo. I., Geo. II.] FROM HENRY VII. TO GEORGE II. 615 of mankind have generally an instinct of self-preservation which leads them right, and perhaps more than stronger minds pos- sess ; and Anne could scarcely help perceiv- ing that her own deposition from the throne would be the natural consequence of once ad- mitting the reversionary right of one whose claim was equally good to the possession. The assertors of hereditary descent could acquiesce in her usurpation no longer than they found it necessary for their object ; if her life should be protracted to an ordinary duration, it was almost certain that Scot- land first, and afterward England, would be wrested from her impotent grasp. Yet, though I believe the queen to have been sensible of this, it is impossible to pronounce with certainty that either through pique against the house of Hanover, or inability to resist her own counselors, she might not have come into the scheme of altering the succession. But, if neither the queen nor her lord- treasurer were inclined to take that vigor- ous course which one party demanded, they Bt least did enough to raise just alarm in the other ; and it seems strange to deny that the Protestant succession was in danger. As Lord Oxford's ascendency diminished, the signs of impending revolution became less equivocal. Adherents of the house of Stu- art were placed in civil and military trust ; an Irish agent of the Pretender was received in the character of envoy from the court of Spain ; the most audacious manifestations of disaffection were overlooked.* Several * The Duchess of Gordon, in June, 1711, sent a silver medal to the faculty of advocates at Edin- burgh, with a head on one side, and the inscription Cujus est; on the other, the British isles, with the word Reddite. The dean of facultj', Dundas of Amiston, presented this medal ; and there seems reason to beUeve that a majority of the advocates voted for its reception. — Somerville, p. 452. Bo- lingbrokc, in writing on the subject to a friend, it must be owned, speaks of tlie proceeding with due disapprobation. — Bolingbroke Con'espondence, i., 343. No measures, however, were taken to mark the court's displeasure. " Nothing is more certain," says Bolingbroke, in his letter to Sir William Wyndhara, perhaps the finest of his writings, " than this truth, that there was at that time no formed design in the party, whatever views some particular men might have, against bis majesty's accession to the throne." — P. 22. This is, in effect, to confess a great deal; and in other parts of the same letter, he makes admis- sions of the same kind ; though he says that he even in Parliament spoke with contempt and aversion of the house of Hanover.* It was surely not unreasonable in the Whig party to meet these assaults of the enemy with something beyond the ordinary weap- ons of an opposition. They affected no apprehensions that it was absurd to enter- tain. Those of the opposite faction, who wished well to the Protestant interest, and were called Hanoverian Tories, came over to their side, and joined them on motions and other Tories had determined, before the queen's death, to have no connection with the Pretender, on account of his religious bigotry. — P. 111. * Lockhart gives us a speech of Sir William Whitelock in 1714, bitterly inveighing against the Elector of Hanover, who, he hoped, would never come to the crown. Some of the Wliigs cried oat on this that he should be brought to the bar, when Whitelock said he would not recede an inch ; he hoped the queen would outlive that prince, and in comparison to her he did not value all the princes of Germany one farthing. — P. 469. Swift, in "Some Free Thoughts upon the present State of Affairs," 1714, speaks with much contempt of the house of Hanover and its sovereign, and suggests, in deri- sion, that the infant son of the electoral prince might be invited to talie up his residence in En- gland. He pretends in this tract, as in all his writ- ings, to deny entirely that there was the least tend- ency toward Jacobitism, either in any one of the ministry, or even any eminent individual out of it ; but with so impudent a disregard to truth, that I am not perfectly convinced of his own innocence as to that intiigue. Thus, in his Inquiry into the Behavior of the Queen's last Ministry, he says, "I remember, during the late treaty of peace, dis- coursing at several times with .some very eminent persons of the opposite side with whom 1 had long acquaintance. I asked them seriously whether they or any of their friends did in earnest believe, or suspect the queen or the ministry to have any favorable regards toward the Pretender ? They all confessed for themselves, that they believed nothing of the matter," itc. He then tells us that he had the curiosity to ask almost every person in gieat employment whether they knew or had heard of any one particular man, except professed non jurors, that discovered the least inclination to- ward the Pretender; and the whole number they could muster up did not amount to above five or six, among whom one was a certain old lord, late- ly dead, and one a private gentleman, of little con- sequence and of a broken fortune, &c. — (Vol. xv., p. 94, edit. 12mo, 1765.) This acute observer of mankind well knew that lying is frequently suc- cessful in the ratio of its effrontery and extrava- gance. There are, however, some passages in this tract, as in others written by Swift, in relation to that time, which serve to illustrate the obscure machinations of those famous last years of the queen. 616 CONSTITUTIONAL HISTORY OP ENGLAND [Chap. XVL that the succession was in danger.* No one hardly, who either hoped or dreaded the consequences, had any doubts upon this score ; and it is only a few moderns who have assumed the privilege of setting aside the persuasion of cotemporaries upon a sub- ject which cotemporaries were best able to understand. f Are we then to censure the Whigs for urging on the Elector of Hano- ver, who, by a strange apathy or indiffer- ence, seemed negligent of the great prize reserved for him, or is the bold step of de- manding a writ of summons for the elector- al prince as Duke of Cambridge to pass for a factious insult on the queen, because, in her imbecility, she was leaving the crown to be snatched at by the first comer, even if she were not, as they suspected, in some conspiracy to bestow it on a proscribed heir?t I am much inclined to believe that * On a motion in the House of Lords that the Protestant succession was in danger, April 5, 1714, the ministry had only a majority of 76 to 69, sev- eral bishops and other Tories voting against them. — Pari. Hist., vi., 1334. Even in the Commons the division was but 256 to 208. — Id., 1347. t Somerville has a separate dissertation on the danger of the Protestant succession, intended to prove that it was in no danger at all, except through the violence of the Whigs in exasperating the queen. It is true that Lockhart's Commentaries were not published at this time ; but he had Mac- pherson before him, and the Memoirs of Berwick, and even gave credit to the authenticity of Mcsna- ger, wliich I do not. But this sensible, and, on the whole, impartial writer, had contracted an excess- ive prejudice against the Whigs of tliat period as a party, tliough he seems to adopt their principles. His dissertation is a labored attempt to explain away the most evident facts, and to deny what no one of either party at that time would probably have in private denied. t The queen was very ill about the close of 1713 ; in fact, it became evident, as it had long been apprehended, that she could not live much longer. The Hanoverians, both Whigs and Tories, urged that the electoral prince should be sent for ; it was thought that whichever of the competitors should have the start upon her death would suc- ceed in securing the crown.— Macpherson, 365, 546, 557, et ahbi. Can there be a more complete justification of this measure, which Somerville and the Tory writers ti-eat as disrespectful to the queen? The Hanoverian envoy, Schutz, demand- ed the writ for the electoral prince without his master's orders ; but it was done with the advice of ^11 the Whig leaders. Id.. 592, and with the sanction of the Electress Sophia, who died imme- diately after. "All who are for Hanover believe the coming of the electoral prince to be advanta- geous ; all those against it are frightened at it." — Id., 596. It was doubtless a critical moment ; and the great majority of the nation were in favor of the Protestant succession ; but if the princes of the house of Brunswick had seemed to retire from the contest, it might have been impracticable to resist a predom- inant faction in the council and in Parlia- ment, especially if the son of James, listen- ing to the remonstrances of his English ad- herents, could have been induced to renounce a faith which, in the eyes of too many, was the sole pretext for his exclusion,* and was at least almost the only one which could have been publicly maintained with much success consistently with the general princi- ples of our Constitution.! the court of Hanover might be excused for pausing in tlie choice of dangers, as the step must make the queen decidedly their enemy. She was great- ly offended, and forbade the Hanoverian minister to appear at court. Indeed, she wrote to the elect- or on May 19, expressing her disapprobation of the prince's coming over to England, and "herde- tennination to oppose a project so contrarj- to her royal authority, however fatal the consequences may be." — Id., 621. Oxford and Bolingbroke inti- mate the same. — Id.. 593 ; and see Bolingbroke Correspondence, iv., 512, a very strong passage. The measure was given up, whether from unwill- ingness on the part of George to make the queen irreconcilable, or, as is at least equally probable, out of jealousy of his sou. The former certainly disappointed his adherents by more apparent apa- thy than their ardor required, which will not be surpri.sing when we reflect that, even upon the throne, he seemed to care very little about it. — Macpherson, sub arm. 1714, passim. * He was strongly pressed by his English ad- herents to declare himself a Protestant. He wrote a very good answer. — Macpherson, 436. Madame de Maintenon says, some Catholics urged him to the same course, " par une politique poussee un peu trop loin." — Lettres a la Princesse des Ursins, ii., 428. [See, also, Bolingbroke's Letter to Sir W. Wyndham : " I can not forget, nor you either, what passed when, a little before the death of the queen, letters were conveyed from the chevalier to several persons, to myself among others. In the letter to me, the ai ticle of religion was so awkwardly handled, that he made the principal motive of the confidence we ought to have iu him to consist in his firm resolution to adhere to popery. The effect which this epistle had on me was the same which it had on those Tories to whom I com- municated it at that time — it made us resolve to have nothing to do with him." It seems to have been a sine qua non with the Tory leaders that the Pretender should become a Protestant. But others thought this an unreasonable demand. He would not even directly engage to secure the churches of England and Ireland, if we may believe Boling- broke.—Id.— 1845.] t [The Whigs relied upon the army in case of a struggle.— Somerville, 565. Swift, in his Free Anne, Geo. I, Geo. II.] FROM HENRY VII. TO GEORGE II. 617 The queen's death, which came at last, Accession of I'ather more quickly than was (Jeorge I. foreseen, broke forever the fair prospects of her family. George I., un- known and absent, was proclaimed without a single murmur, as if the crown had passed in the most regular descent. But this was a momentary calm. The Jacobite party, Whi-'s come recovering from the first conster- iuto Jower. nation, availed itself of its usual arms, and of those with which the new king supplied it. Many of the Tories, who would have acquiesced in the Act of Settlement, seem to have looked on a leading share in the administration as belonging of right to what was called the Church party, and com- plained of the formation of a ministry on the Whig principle. In later times, also, it has been not uncommon to censure George I. for governing, as it is called, by a faction. Nothing can be more unreasonable than this reproach. Was he to select those as his advisers who had been, as we know and as he believed, in a conspiracy with his com- petitor ? Was Lord Oxford, even if the king thought him faithful, capable of uniting with any public men, hated as he was on each side ? Were not the Tories as truly a faction as their adversaries, and as intol- erant during their own power ?* Was there not, above all, a danger that, if some of one Thoughts on the present State of Affairs, virittcn in the spring of 1714, spcalis with indignation of the disaffection of the guards toward the queen, taking care, at the same time, to deny the least inclination on the part of the ministry toward a change of succession. — 1845.] * The rage of the Tory party against the queen and Lord Oxford for retaining Whigs in oflice is notorious from Swift's private letters, and many other authorities ; and Bolinghroke, in his letter to Sir William Wyndhara, veiy fairly owns their in tention " to fill the employments of the kingdom, down to the meanest, with Tories." " We imag- ined," he proceeds, "that such measures, joined to the advantages of our numbers and our proper- ty, would secure us against all attempts during her reign ; and that we should soon become too considerable not to make our terms in all events which might happen afterward; concerning which, to speak truly, I believe few or none of us had any very settled resolution." — P. 11. It is rather amusing to observe that those who called them- selves the Tory or Church party seem to have fan- cied they had a natural right to power and profit, so that an injury was done them when these re- wards went another way ; and I am not sure that Bomething of the same prejudice has not been per- ceptible in times a good deal later. denomination were drawn by pique and dis- appointment into the ranks of the Jacobites, the Whigs, on the other hand, so ungrate- fully and perfidiously recompensed for their arduous services to the house of Hanover, might think all royalty irreconcilable with the pi'inciples of freedom, and raise up a Republican party, of which the scattered elements were sufficiently discernible in the nation 7* The exclusion, indeed, of the Whigs would have been so monstrous, both in honor and policy, that the censure has generally fallen on their alleged monopoly of public offices. But the mischiefs of a disunited, hybrid ministry had been suffi- ciently manifest in the last two reigns ; nor could George, a stranger to his people and their constitution, have undertaken without ruin that most difficult task of balancing par- ties and persons, to which the great mind of William had proved unequal. Nor is it true that the Tories, as such, were pro- scribed ; those who chose to serve the court met with court favor ; and in the very out- set the few men of sufficient eminence, who had testified their attachment to the succes- sion, received equitable rewards ; but, most happily for himself and the kingdom, most reasonably according to the principles on which alone his throne could rest, the first prince of the house of Brunswick guvo a de- cisive preponderance in his favor to Walpole and Townshend above Harcourt and Boling- broke. The strong symptoms of disaffection which broke out in a few months . , Great d:saf- atier tlie kmg's accession, and fectioniuthe which can be ascribed to no gricv- '""S'luf- ance, unless the formation of a Whig min- istry was to be termed one, prove the taint of the late times to have been deep-seated and extensive. f The clergy, in many in- * Though no Republican party, as I have else- where observed, could with any propriety bo said to exist, it is easy to perceive that a certain de- gree of provocation from the crown might have brought one together in no slight force. These two propositions are perfectly compatible. t This is well put by Bishop Willis, in his speech on the bill against Atterbury, Pari. Hist., viii., 305. In a pamphlet, entitled English Advice to the Freeholders (Somers Tracts, xiii., 521), as- cribed to Atterbury himself, a most virulent attack is made on the government, merely because what he calls the Church paity had been thrown out of office. " Among all who call themselves Whigs." he says, " and are of any consideration as such, 618 CONSTITUTIONAL HISTORY OP ENGLAND [Chap. XVI. stances, peiTerted, by political sermons, their influence over the people, who, while they trusted that from those fountains they could draw the living waters of truth, be- came the dupes of factious lies and sophis- tiy. Thus encouraged, the heir of the Stu- arts landed in Scotland ; and the spirit of that people being in a great measure Jaco- bite, and very generally averse to the Union, he met with such success as, had their in- dependence subsisted, would probably have established him on the throne. But Scot- land was now doomed to wait on the for- tunes of her more powerful ally ; and, on his invasion of England, the noisy partisans of hereditary right discredited their faction by its cowardice. Few rose in arms to sup- port the rebellion, compared with those who desired its success, and did not blush to see the gallant savages of the Highlands shed their blood that a supine herd of priests and name me the man I can not prove to be an invet- erate enemy to the Church of England, and I will be a convert that instant to their cause." It must be owned, perhaps, that the Whig ministry niiglit better have avoided some reflections on the late times in the addresses of both Houses ; and still more, some not very constitutional recommenda- tions to tlie electors, in the proclamation calling tlie new Parliament in 1714. — Pari. Hist., vi., 44, ."jO. " Never was prince more universally well received by subjects than his present majesty on his arrival, and never was less done by a prince to create a change in people's affections. But so it is, a very observable change hath happened. Evil infusions were spread on the one hand ; and, it may be, there was too great a stoicism or contempt of popularity on the other. " — Argument to prove the Affections of the People of England to be the best Security for the Government, p. 11 (1716). This is the pamphlet written to recommend lenity toward the rebels, which Addison has answered in the Free- holder. It is invidious, and perhaps secretly Jaco- bite. BoHugbroke observes, in the letter already quoted, that the Pretender's journey from Bar, in 1714, was a mere farce, no party being ready to receive him; but "the menaces of the Whigs, backed by some very rash declarations [those of the king], and Uttle circumstances of humor, which frequently offend more than real injuries, and by the entire change of all persons in eraploj'ment, blew up the coals." — P. 34. Then, he owns, the Tories looked to Bar. '• The violence of the Whigs forced them into the arms of the Pretender." It is to be remarked on all this, that, by Bolingbroke's own account, the Tories, if they had no "formed design" or " settled resolution" that way, were not very detennined in their repugnance before the queen's death, and that the chief violence of which they complained was, that George chose to employ his friends rather than his enemies. country gentlemen might enjoy the victory. The severity of the new government after the rebellion has been often blamed ; but I know not whether, according to the usual rules of policy, it can be proved that the ex- ecution of two peers and thirty other per- sons, taken with arms in flagrant rebellion, was an unwarrantable excess of punishment. There seems a latent insinuation in those who have argued on the other side, as if the Jacobite rebellion, being founded on an opin- ion of right, was more excusable than an ordinary treason : a proposition which it would not have been quite safe for the reign- ing dynasty to acknowledge. Clemency, however, is the standing policy of constitu- tional governments, as severity is of des- potism ; and if the ministers of George I. might have extended it to part of the in- ferior sufferers (for surely those of higher rank were the first to be selected) with safety to their master, they would have done well in sparing him the odium that attends all po- litical punishments.* It will be admitted on all hands, at the present day, that the charge of , , . high treason in the impeachments of Tory min- against Oxford and Bolingbroke was an intemperate excess of resentment at their scandalous dereliction of the public honor and interest. The danger of a san- guinary revenge inflamed by party spirit is so tremendous, that the worst of men ought perhaps to escape rather than suffer by a retrospective, or, what is no better, a con- structive extension of the law. The par- ticular charge of treason was, that in the negotiation for peace they had endeavored to procure the city of Tournay for the King * The trials after this rebellion were not con- ducted with quite that appearance of impartiality which we now exact from judges. Chief-baron Montagu reprimanded a jury for acquitting some persons indicted for treason; andTindal, a histori- an very sti-ongly on the court side, admits that the dying speeches of some of the sufferers made an impression on the people, so as to increase rather than lessen the number of Jacobites. — Continuation of Rapin, p. 501 (folio edit.). There seems, how- ever, upon the whole, to have been greater and less necessarj* severity after the rebellion in 1745 ; and upon this latter occasion it is impossible not to reprobate the execution of Mr. Ratcliffe (brotherof that Earl of Derwentwater who had lost his head in 1716). after an absence of thirty years from bit country, to the sovereign of which he had never professed allegiance, nor could owe any, except by the fiction of our law. Anjje, Geo. I., Geo. II.] FROM HENRY VII. TO GEORGE II. 619 of France, which was maintained to be an adhering to the queen's enemies within the statute of Edward III. ;* but as this con- struction could hardly be brought within the spirit of that law, and the motive was cer- tainly not treasonable or rebellious, it would have been incomparably more constitutional to ti'eat so gross a breach of duty as a mis- demeanor of the highest kind. This angry temper of the Commons led ultimately to the abandonment of the whole impeachment against Lord Oxford; the Upper House, though it had committed Oxford to the Tower, which seemed to prejudge the ques- tion as to the treasonable character of the imputed offense, having two years afterward resolved that the charge of treason should be first determined, before they would enter on the articles of less importance ; a de- cision with which the Commons were so ill satisfied, that they declined to go forward with the prosecution. The resolution of the peers was hardly conformable to prece- dent, to analogy, or to the dignity of the House of Commons, nor will it, perhaps, be deemed binding on any future occasion ; but the ministers prudently suffered themselves to be beaten, rather than aggravate the fever of the people by a prosecution so full of deli- cate and hazardous questions.} One of these questions, and by no means the least important, would doubtless Imve arisen upou a mode of defense alleged by the Earl of Oxford in the House when the " Pari. Hist., 73. It was carried against Ox- ford by 247 to 127, Sir Joseph Jekyll strongly op- posing it, though he had said before (Id., G7) that they had more than sufficient evidence against Bo- lingbroke on the statute of Edward III. A motion was made in the Lords to consult the judges wheth- er the articles amounted to treason, but lost by 84 to 52. — Id., 154. Lord Cowpcr on this occasion challenged all the lawyers in England to disprove that proposition. The proposal of reference to the judges was perhaps premature; but the House must surely have done this before their final sen- tence, or shown themselves more passionate than in the case of Lord Strafford. t Pari. Hist., vii., 48C. The division was 88 to ^6. There was a schism in the Whig party at this time ; yet I should suppose the ministers might liave prevented this defeat, if tlicy had been anx- ious to do so. It seems, however, by a letter in Coxe's Memoirs of Walpole, vol. ii., p. 123, that the government were for dropping the charge of treason against Oxford, " it being vci-y certain that there is not sufficient evidence to convict hira of tliat crime," but for pressing those of misdemeanor. articles of impeachment were brought up. " My lords," he said, " if ministers of state, acting by the immediate commands of their sovereign, are afterward to be made account- able for their proceedings, it may, one day or other, be the case of all the members of this august assembly."* It was, indeed, un- deniable that the queen had been veiy de- sirous of peace, and a party, as it were, to all the counsels that tended to it. Though it was made a charge against the impeaclied lords that the instructions to sign the secret preliminaries of 1711 with M. Mesnager, the French envoy, were not under the great seal, nor countersigned by any minister, they were certainly under the queen's signet, and had all the authority of her personal com- mand. This must have brought on the yet unsettled and very delicate question of min- isterial responsibility in matters where the sovereign has interposed his own command ; a question better reserved, it might then ap- pear, for the loose generalities of debate than to be determined with the precision of crim- inal law. Each party, in fact, had in its turn made use of the queen's personal au- thority as a shield ; the Whigs availed them- selves of it to parry the attack made on their ministry, after its fall, for an alleged mis- management of the war in Spain before the battle of Almanza ;f and the modern consti- * Pari. Hist., vii., 105. t Pari. Hist., vi., 972. Burnet, 560, makes some observations on the vote passed on this occasion, censuring the late ministers for advising au offens- ive war in Spain. " A resolution in council is only the sovereign's act, who, upon hearing his counselors deliver their opinions, fonus his own resolution ; a counselor may indeed be liable to cen- sure for what he may say at that board ; but the resolution taken there has been hitherto treated with a silent respect ; but by that precedent it will be hereafter subject to a Parliamentary inqui- ry." Speaker Onslow justly remarks, that these general and indefinite sentiments are liable to much exception, and that the bishop did not try them by his Whig principles. The first instance where I find the responsibility of some one for ev- ery act of the crown sti'ongly laid down is in a speech of the Duke of Argyle in 1739. — Paj-I. Hist., ix., 1138. " It is true," he saj-s, " the nature of our Constitution requires that public acts should be is- sued out in his majesty's name ; but for all that, my lords, he is not the author of thera." [But in a much earlier debate, .Tan. 12, 1711, the Earl of Roch- ester said, "For several years they have been told that the queen was to answer for every thing ; but he hoped that time was over; that, according to the fundamental constitution of this kingdom, the 620 CONSTITUTIONAL HISTORY OF ENGLAND [Chap. XVL tutional theory was by no means so estab- , lished in public opinion as to bear the mde i brunt of a legal argument. Anne herself, like all her predecessors, kept in her own hands the reigns of power; jealous, as such feeble characters usuaUy are, of those in whom she was forced to confide (especially after the ungrateful return of the Duchess of Marlborough for the most affectionate condescension), and obstinate in her judg- ment, from the very consciousness of its weakness, she took a share in all business, frequently presided in meetings of the cab- inet, and sometimes gave directions without their advice.* The defense set up by Lord Oxford would undoubtedly not be tolerated at present, if alleged in direct terms, by either house of Parliament, however it may sometimes be deemed a sufficient apology for a minister, by those whose bias is to- ward a compliance with power, to insinuate that he must either obey against his con- science, or resign against his will. Upon this prevalent disaffection, and the general dangers of the establish- BiU for Sep. & * /• j j , teniiiai Par- ed government, was lounded that liaruents. measure so frequently arraigned in later times, the substitution of septennial for triennial Parliaments. f The ministry ministers are accoantable for all, and thei'efore he lioped nobody would — nay, nobody durst — name the queen in this debate." — Pari. Hist., vi., 472. So much does the occasional advantage of urging an argument in debate lead men to speak against their own principles, for nothing could be more re- pugnant to those of the high Tories, wlio reckoned Rochester their chief, than such a theory of the Constitution as he here advances. — 184.'5.] * " Lord Bolmgbroke used to say that the re- straining orders to the Duke of Onnond were pro- posed iu the cabinet council, in the queen's pres- ence, by the Earl of Oxford, who had not commu- nicated his intention to the rest of the ministers ; and that Lord Bolingbroke was on the point of giving liis opinion against it, when the queen, with- out suflering the matter to be debated, directed these orders to be sent, and broke up the council. This stoi-y was told by the late Lord Bolingbroke to my father." — Note by Lord Hardwicke on Bur- net (Oxf. edit, vi., 119). The noble annotator has (riven us the same anecdote in the Hardwicke State Papers, ii., 480; but with this variance, that Lord Bolingbroke there ascribes the orders to the queen herself, though he conjectured them to have proceeded from Lord Oxford. [This fact is men- tioned by Bolingbroke himself, in the Letters on the Study of History. — Bolingbroke's Works, vol. iv., p. 129.— 1845.] t ["Septeimial Parliaments were at first a direct deemed it too perilous for their master, cer tainly for themselves, to encounter a gen- eral election in 1717; but the arguments adduced for the alteration, as it was meant to be permanent, were drawn from its per- manent expediency. Nothing can be more extravagant than what is sometimes confi- dently pretended by the ignorant, that the Legislature exceeded its rights by this en- actment ; or, if that can not legally be ad- vanced, that it at least violated the trust of the people, and broke in upon the ancient Constitution. The law for triennial Parlia- ments was of little more than twenty years' continuance. It was an experiment, which, as was argued, had proved unsuccessful ; it was subject, like eveiy other law, to be re- pealed entirely, or to be modified at discre- tion.* As a question of constitutional ex- pediency, the Septennial Bill was doubtless open at the time to one serious objection. Every one admitted that a Parliament sub- sisting indefinitely during a king's life, but ; exposed at all times to be dissolved at his pleasure, would become far too little inde- pendent of the people, and far too much so upon the crown. But if the period of its continuance should thus be extended from three to seven years, the natural course of encroachment, or some momentous circum- stances like the present, might lead to fi-esh prolongations, and graduallj' to an entire re- peal of what had been thought so important a safeguard of its purity. Time has happily put an end to apprehensions, which are not. on that account, to be reckoned unreason- able.f usurpation of the rights of the people ; for by the same authoritj' that one Parliament prolonged their own power to seven years, they might have con- tinued it to twice seven, or, like the Parliament of 1641, have made it perpetuah"' — Priestley on Gov- ernment, 1771, p. 20. Similar assertions were com mon, grounded on the ignorant assumption that the Septennial Act prolonged the original duration of Parliament, whereas it in fact only limited, though less than the Triennial Act which it repealed, the old prerogative of the crown to keep the same Par- liament during the life of the reigning king. — 1845.] * [The whole Tory party, according to Boling- broke, had become avowedly Jacobite by the sum- mer of 1715. He lays this as far as he can on the impeachments of himself and others. But, though these measures were too violent, and calculated to exasperate a fallen party, we have abundant proofs of the increase of Jacobitism in the preceding year. —1845.] t Pari. Hist., vii., 292. The apprehension that Anne, Geo. L, Geo. II.] FROM HENRY VII. TO GEORGE II. G21 Many attempts have been made to obtain : a return to triennial Parliainent.s, the most : considerable of which was in 1733, when ^ the powerful talents of Walpole and his op- ponents were arrayed on this great question. It has been less debated in modern times than some others connected with Parlia- mentary reformation. So long, indeed, as the sacred duties of choosing the repre- sentatives of a free nation shall be per- petually disgraced by tumultuary excess, or, what is far worse, by gross corruption and ruinous profusion (evils which no ef- fectual pains are taken to redress, and which some apparently desire to perpetu- ate, were it only to throw discredit upon the popular part of the Constitution), it would be evidently inexpedient to curtail the present duration of Parliament. But, even independently of this not insuperable objection, it may well be doubted whether triennial elections would make much per- ceptible difference in the course of govern- ment, and whether that difference would, on the whole, be beneficial. It will be found, I believe, on a retrospect of the last hundred years, that the House of Com- mons would have acted, in the main, on the same principles, had the elections been more frequent ; and certainly the effects of a dissolution, when it has occmred in the regular order, have seldom been very important. It is also to be considered, whether au assembly which so much takes to itself the character of a deliberative council on aU matters of policy, ought to follow with the pi-ecision of a weather-glass the unstable prejudices of the multitude. There are many who look too exclusively at the functions of Parliament, as the pro- tector of civil liberty against the crown ; functions, it is true, most important, yet not more indispensable than those of steering a firm course in domestic and external af- fairs, with a circumspectness and provi- dence for the future which no wholly dem- ocratical government has ever yet displayed. It is by a middle position between nn oli- garchical senate and a popular assembly that the House of Commons is best pre- Parliament, having taken this step, might go ou still farther to protract its own duration, was not quite idle. We find from Coxe's Memoirs of Wal- pole, ii., 217, that in ]720, when the first septenni- al House of Commons had nearly run its term, there was a project of once more prolonging its life. served both in its dignity and usefulness, subject, indeed, to swerve toward either character by that continual variation of forces which act upon the vast machine of our Commonwealth. But what seems more impoitant than the usual term of du- ration is, that this should be permitted to take its course, except in cases where some great change of national policy may perhaps justify its abridgment. The crown would obtain a very serious advantage over the House of Commons if it should become an ordinary thing to dissolve Parliament for some petty ministerial interest, or to avert some unpalatable resolution. Custom ap- pears to have established, and with some convenience, the substitution of six for seven years as the natural life of a House of Com- mons ; but an habitual irregularity in this respect might lead in time to consequences that most men would deprecate ; and it may here be permitted to express a hope that the necessary dissolution of Parliament within six months of a demise of the crown will not long be thought congenial to the spirit of our modern government. A far more unanimous sentence has been pronounced by posterity upon an- peerage other great constitutional question that arose under George I. Lord Sunder- land persuaded the king to renounce his important prerogative of making peers ; and a bill was supported by the ministry, limit- ing the House of Lords, after the creation of a very few more, to its actual numbers. The Scots were to have twenty-five hered- itary, instead of sixteen elective, members of the House ; a provision neither easily reconciled to the Union, nor required by the general tenor of the bill. This measure was carried with no difficulty through the Upper House, whose interests were so manifestly concerned in it. But a similar motive, concun-ing with the efforts of a powerful malcontent party, caused its re- jection by the Commons.* It was justly thought a proof of the king's ignorance or indifference in every thing that concerned his English crown, that he should have consented to so momentous a sacrifice : and Sunderland was reproached for so audacious an endeavor to strengthen his private fac- tion at the expense of the fundamental laws of the monarchy. Those who maintained * Pari. Hist., vii., 589. 622 CONSTITUTIONAL HISTORY OF ENGLAND [Chap. XVL the expediency of limiting the peerage bad recourse to uncertain theories as to the ancient Constitution, and denied this pre- rogative to have been originally vested in the crown. A more plausible argument was derived from the abuse, as it was then generally accounted, of creating at once twelve peers in the late reign, for the sole end of establishing a majority for the court ; a resource which would be always at the command of successive factions, till the British nobility might become as numerous and venal as that of some European states. It was argued that there was a fallacy in concluding the collective power of the House of Lords to be augmented by its limitation, though every single peer would evidently become of more weight in the kingdom ; that the wealth of the whole body must bear a less proportion to that of the nation, and would possibly not exceed that of the Lower House, while on the other hand it might be indefinitely multi- plied by fresh creations ; that the crown would lose one great engine of comipt in- fluence over the Commons, which could never be truly independent while its prin- cipal members were looking on it as a step- ping-stone to hereditary honors.* Though these reasonings, however, are not destitute of considerable weight, and the unlimited prerogative of augmenting the peerage is liable to such abuses, at least in theory, as might overthrow our form of government, while, in the opinion of some, whether erroneous or not, it has actually been exerted with too little discretion, the arguments against any legal limitation seem more decisive. The crown has been care- fully restrained by statutes, and by the re- sponsibility of its advisers ; the Commons, if they transgress their boundaries, are an- nihilated by a proclamation ; but against the ambition, or, what is much more likely, the perverse haughtiness of the aristocracy, the Constitution has not furnished such direct securities ; and, as this would be prodig- iously enhanced by a consciousness of their power, and by a sense of self-importance which eveiy peer would derive from it after the limitation of their numbers, it might break out in pretensions very galling * The arguments on this side are urged by Ad- diFon in the Old Whig, and by the author of a tract entitled Six duestions Stated and Answered. to the people, and in an oppressive exten- sion of privileges which were already suf- ficiently obnoxious and arbitrary. It is true that the resource of subduing an aristocrat- ical faction by the creation of new peers could never be constitutionally employed, except in the case of a nearly equal bal- ance ; but it might usefully hang over the heads of the whole body, and deter them from any gross excesses of faction or oli- garchical spirit. The nature of our govern- ment requires a general harmony between the two houses of Parliament ; and, indeed, any systematic opposition between them would of necessity bring on the subordina- tion of one to the other in too marked a manner ; nor had there been wanting with- in the memory of man several instances of such jealous and even hostile sentiments as could only be allayed by the inconvenient remedies of a prorogation or a dissolution. These animosities were likely to revive with more bitterness when the country gentlemen and leaders of the Commons should come to look on the nobility as a class into which they could not enter, and the latter should forget more and more, in their inaccessible dignity, the near approach of that gentry to themselves in respectabil- ity of birth and extent of possessions.* These innovations on the part of the new government were maintained on the score of its unsettled state, and want of hold on the national sentiment. It may seem a re- proach to the house of Hanover that, con- nected as it ought to have been with the names most dear to English hearts, the Protestant religion and civil liberty, it should have been driven to tiy the resources of tyranny, and to demand more authority, to exercise more contro/, than had been neces- sary for the worst of their predecessors. Much of this disaffection was owing to the * The speeches of Walpole and others, in the Parliamentary Debates, contain the whole force of the arguments against the Peerage Bill. Steele, in the Plebeian, opposed his old friend and coadju- tor, Addison, who has been thought by Johnson to have forgotten a little in party and controversy their ancient friendship. Lord Sunderland held out, by way of induce- ments to the bill, that the Lords would part with scandalum magnatum, and permit the Commons to administer an oath ; and that the king would give up the prerogative of pardoning after an impeachment. — Coxe's Walpole, ii., 172. Mere trifles, in con: parison with the innovations projected. AssE, Geo. I., Geo. II.] FKOM HENRY VII. TO GEORGE II. 623 cold reserve of George I., ignorant of the language, alien from the prejudices of his people, and continually absent in his elect- oral dominions, to which ho seemed to sacrifice the nation's interest and the secu- rity of his own crown. It is certain that the acquisition of the duchies of Bremen and Verden for Hanover in 1716* exposed Great Britain to a very serious danger, by provoking the King of Sweden to join in a league for the restoration of the Pretender.f It might have been impossible (such was the precariousness of our Revolution settle- ment) to have made the abdication of the electorate a condition of the house of Bruns- wick's succession ; but the consequences of that connection, though much exaggerated by the factious and disaffected, were in various manners detrimental to English in- terests during these two reigns ; and not the least, in that they estranged the affec- tions of the people from sovereigns whom they regarded as still foreign. t The Tory * [These duchies had been conquered from Swe- den by Denmark, who ceded them to George 1., as elector of Hanover, though they had never been resigned by Charles XII. This is not consonant to the usage of nations, and at least was an act of hostiUty in George I. against a power who had not injured hira. Yet Townshend affected to de- fend it, as beneficial to English interests ; though the contraiy is most evident, as it provoked Charles to espouse the Pretender's cause. — Coxc's Wal- pole, vol. i., p. 87.— 1845.] t The letters in Coxe's Memoirs of Walpole, vol. ii., abundantly show the German nationality, the hnpolicy and neglect of his duties, the rapacity and petty selfishness of George I. The Whigs were much dissatisfied ; but fear of losing their places made them his slaves. Nothing can be more de- monstrable than that the king's cViaracter was the main cause of preserving Jacobitism, as that of hi^ competitor was of weakening it. The habeas corpus was several times suspended in this reign, as it had been in that of William. Though the perpetual conspiracies of the Jacobites afforded a sufficient apology for this measure, it was invidiously held up as inconsistent with a government which professed to stand on tlie prin- ciples of liberty.— Pari. Hist., v., 153, 267, 604 ; vii., 276; viii., 38. But some of these suspensions were too long, especially the last, from October, 1722, to October, 1723. Sir Joseph Jekyll, with his usual zeal for liberty, moved to reduce the time to six montlis. t [Tlic Regent Duke of Orleans not only assist- ed the Pretender in his invasion of Scotland in 1715, but was concerned in the scheme of Charles XII. to restore him by aims in the next year, as appears by a dispatch from the Baion de Besenval, French envoy at Warsaw, dated February 2, 1716, which and Jacobite factions, as I have observed, were powerful in the Church, j^^^^,^,,,^ This had been the case ever among ihe since the Revolution. The avow- "'"'S^' ed non-jurors were busy with the press, and poured forth, especially during the encour- agement they received in part of Anne's reign, a multitude of pamphlets, some- times argumentative, more often virulently libelous. Their idle ciy that the Church was in danger, which both Houses in 1704 thought fit to deny by a formal vote, alarm- ed a senseless multitude. Those who took the oaths were frequently known partisans of the exiled family ; and those who affected to disclaim that cause, defended the new settlement with such timid or faithless arms as served only to give a triumpli to the adversary.* About the end of William's reign grew up the distinction of High and Low Churchmen ; the first distinguished by great pretensions to sacerdotal power, both spiritual and temporal, by a repug- nance to toleration, and by a firm adherence to Tory principle in the state ; the latter by the opposite characteristics. These were pitched against each other in the two houses of Convocation, an assembly which virtually ceased to exist under George I. The Convocation of the province of Can- terbury (for that of York seems \ , . . Convocation. never to have been miportant) is summoned by the archbishop's writ, under the king's direction, along with every Par- liament, to which it bears analogy both in its constituent parts and in its primary functions. It consists (since the Reforma- tion) of the suffragan bishops, forming the Upper House ; of the deans, archdeacons, a proctor or proxy for each chapter, and is printed from the Depot des Affaires Etrangeres, in Mem. de Besenval (his descendant), vol. i., p. 102. So much was Voltaire mistaken in his asser- tion, that the regent, having discovered this intrigue through his spies, communicated it to George I. It was his own plot, though he soon afterward allied himself to England, a remnant of the policy of 1715. But Sunderland and Stanhope, though too obsequi- ous to their master's German views, had the merit of bringing over Dubois to a steady regard for the house of Hanover, which influenced the court of Versailles for many years. — 1845.] * [The practice of using a collect before the ser- mon, instead of the form prescribed by the 55th canon, seems to have originated with the Jacobite clergy, to avoid praying for the king. It is pro- hibited by a royal proclamation of Dec. 11, 1714. — Hist. Reg., i., 78.— 1845.] 624 CONSTITUTIONAL HISTORY OF ENGLAND [Chap. XVL two from each diocese, elected by the pa- rochial clergy, who together constitute the Lower House. In this assembly subsidies were granted, and ecclesiastical canons en- acted. In a few instances under Henry VIII. and Elizabeth, they were consulted as to momentous questions affecting the national religion ; the supremacj^ of the former was approved in 1533, the Articles of Faith were confirmed in 1562, by the Convocation. But their power to enact fresh canons without the king's license was expressly taken away by a statute of Henry VIII. ; and even subject to this condition, is limited by several later acts of Parliament (such as the Acts of the Uniformity under Elizabeth and Charles II., that confirming, and therefore rendering unalterable, the Thirty-nine Articles, those relating to non- residence and other Church matters), and still more, perhaps, by the doctrine gi-adu- ally established in Westminster Hall, that new ecclesiastical canons are not binding on the laity, so greatly that it will ever be impossible to exercise it in any effectual manner. The Convocation accordingly, with the exception of 1603, when they established some regulations, and of 1640 (an unfortunate precedent), when they at- tempted some more, had little business but to grant subsidies, which, however, were fi-om the time of Henry VIII. always con- firmed by an act of Parliament ; an intima- tion, no doubt, that the Legislature did not wholly acquiesce in their power even of binding the clergy in a matter of property. This practice of ecclesiastical taxation was discontinued in 1664, at a time when the authority and pre-eminence of the Church stood veiy high, so that it could not then have seemed the abandonment of an im- portant privilege. From this time the clergy have been taxed at the same rate and in the same manner with the laity.* ' Paj-1. Hist., iv., 310. "It was first settled by a verbal agreement between Archbishop Sheldeu and the Lord-chancellor Clarendon, and tacitly given into by the clergy in general as a great ease to them in taxations. The first public act of any kind relating to it was an act of Parliament in 1 663, by which the clergy were, in common with the laity, charged with the tax given in that act, and were discharged from the payment of the snbsidies they had granted before in Convocation; but in this act of Parliament of 1663 there is an express saving of the right of the clergy to tax themselves in Convocation, if they tliink fit ; but that has been It was the natural consequence of this cessation of all business, that the Convoca- never done since, nor attempted, as I know of, and the clergy have been constantly from that time charged with the laity in all public aids to the crown by the House of Commons. In consequence of this (but from what period I can not say), with- out the intervention of any particular law for it, except what I shall mention presently, the clergy (who are not lords of Parliament) have assumed, and without any objection enjoyed, the privilege of voting in the election of members of tffe House of Commons, in virtue of their ecclesiastical free- holds. This has constantly been practiced from the time it first began ; there are two acts of Parlia- ment which suppose it to be now a right. The acts are 10 Anrre, c. 23 ; 18 Geo. 11., c. 18. Gib- son, bishop of London, said to me, that this (the taxation of the clergy out of Convocation) was the greatest alteration in the Constitution ever made without an express law." — Speaker Onslow's note on Burnet (Oxf edit, iv., 508). [In respect to this taxation of the clergy by Parliament, and not by Convocation, it is to be re- membered that by far the greater part of modern taxes, being indirect, must necessarily fall on them in common with the laity. The Convocation, like the Parliament, were wont to grant tenths and fifteenths at fixed rates, supposed to arise fi-om movable property. These being wholly disused from 1665 inclusive, other modes of taxation have supplied their place. But the clergy are charged to the land-tax for their benefices, and to the win- dow-tax for their parsonages, as well as to occa- sional income-taxes. Exclusive of these, it does not appear that any imposts can be said to fall on them from which they could have been exempt by retaining the right of Convocation. The3' have not been losers in any manner by the alteration. The position of Speaker Onslow, that the clergy have enjoyed the privilege of voting at county elections in virtue of their ecclesiastical freeholds only since their separate taxation has been discontinued, may be questioned : proo.% of its exercise, as far as I remember, can be traced higher. In a conference between the two houses of Parliament in 167], on the subject of the Lords' right to alter a money bill, it is said " the clergy have a right to tax them- selves, and it is part of the privilege of their estate. Doth th^ Upper Convocation House alter what the Lower grant ? Or do the Lords or Commons ever abate any part of their gift? Yet they have a power to reject the whole. But, if abatement should be made, it would insensibly go to a raising, and deprive the clergy of their ancient right to tax themselves.'' — HatseU's Precedents, iii., 390. Thus we perceive that the change alleged to have taken place in 1663 was only de facto, and that the ancient practice of taxation by the Convocation was not understood to be abrogated. The essen- tial change was made by the introduction of new methods of raising money. In 1665, the sum of £2,477,000 was granted, to be raised in three years, by an assessment in each county on real and per- sonal property of all kinds ; but the old rates of subsidy are not mentioned in this or in any later ASNE, Geo. I., Geo. II.] FUOM HENRY VII. TO GEORGE II. 62a tion, after a few formalities, either adjourned itself or was prorogued by a royal writ ; nor had it ever, with the few exceptions above noticed, sat for more than a few days, till its supply could bo voted. But, about the time of the Revolution, the party most adverse to the new order sedulously propagated a doctrine that the Convocation ought to be advised with upon all questions affecting the Church, and ought even to watch over its interests as the Parliament did over those of the kingdom.* The Commons had so far encouraged this faction as to refer to the Convocation the great question of a reform in the Liturgy for the sake of comprehen- sion, as has been mentioned in the last chap- ter; and thus put a stop to the king's de- sign. It was not suffered to sit much di'ring the rest of that reign, to the great discontent of its ambitious leaders. The most celebra- ted of these, Atterbury, published a book, entitled the Rights and Privileges of an En- glish Convocation, in answer to one by Wake, afterward Archbishop of Canterbury. The speciousness of the former, sprinkled with competent learning on the subject, a gi'ace- ful style, and an artful employment of top- ics, might easily delude, at least the willing reader. Nothing, indeed, could, on reflec- tion, appear more inconclusive than Atter- bury's ai'guments. Were we even to admit the perfect analogy of a Convocation to a Parliament, it could not be doubted that the king may, legally speaking, prorogue the latter at his pleasure ; and that, if neither money were required to be granted nor laws to be enacted, a session would be veiy short. The Church had, by prescription, a right to tax-bill. Probably the arrangement with Arch- bishop Shelden was founded on the practical diffi- calty of ascertaining the proportion which the grant of the clergy ought to bear to the whole in the new mode of assessment. — See Statutes of the Realm, 16 & 17 Car. II., c. 1.— 1845.] * The first authority I have observed for this pretension is an address of the House of Lords, Nov. 19, 1673, to the throne, for the frequent meet- ing of the Convocation, and that they do make to the king such representations as may be for the safety of the religion established. — Lords' Jour- nals. This address was renewed February 22, 1677. But what took place in consequence I am not apprised. It shows, however, some degree of diflsatisfaction on the part of the bishops, who must be presumed to have set forward these addresses, at the virtual annihilation of their synod, which naturally followed from its relinquisluuent of self- taxation. S 9 be summoned in Convocation ; ji, encroach- but no prescription could be set "'ents- up for its longer contiimance than the crown thought expedient ; and it was too much to •expect that William III. was to gratify his half-avowed enemies with a privilege of re- monstrance and interposition they had nev- er enjoyed. In the year 1701 the lower house of Convocation pretended to a right of adjourning to a different day from that fixed by the upper, and, consequently, of holding separate sessions. They set up oth- er unprecedented claims to independence, which were checked by a prorogation.* Their aim was in all respects to assimilate themselves to the House of Commons, and thus both to set up the Convocation itself as an assembly collateral to Parliament, and in the main independent of it, and to main- tain their co-ordinate power and equality in sy nodical dignity to the prelates' house. The succeeding reign, however, began un- der Toiy auspices, and the Convocation was in more activity for some years than at any former period. The lower house of that assembly still distinguished itself by the most factious spirit, and especially by insolence toward the bishops, who passed in general for Whigs, and whom, while pretending to assert the divine rights of Episcopacy, they labored to deprive of that pi-e-eminenco in the Anglican synod which the ecclesiastical constitution of the kingdom had bestowed on them.f None was more prominent in their debates than Atterbury himself, whom, in the zenith of Tory influence, at the close of her reign, the queen reluctantly promoted to the See of Rochester. The new government at first permitted the Convocation to hold its sittings. But they soon excited a flame which consumed themselves by an attack on Hoad- ley, bishop of Bangor, who had preached a sermon abounding with those principles con- cerning religious liberty, of which he had long been the courageous and powerful as- sertor.J The lower house of Convocation * Kennet, 799, 842. Burnet, 280. This assem- bly had been suffered to sit, probably, in conse- quence of the Tory maxims which the ministry of that year professed. t Wilkins's Concilia, iv. Burnet, passim. Bey- er's Life of dueen Anno, 225. Somerville, 82, 124. t The lower house of Convocation, in the late reign, among their other vagaries, had requested " that some synodical notice might be taken of the 626 CONSTITUTIONAL HISTORY OF ENGLAND [CHAr. XVJ. thought fit to denounce, through the report of a committee, the dangerous tenets of this discourse, and of a work not long before published by the bishop. A long and cele- brated war of pens instantly conmienced, known by the name of the Eangorian Con- troversy, managed, perhaps on both sides, with all the chicanery of polemical writers, and disgusting both from its tediousness, and from the manifest unwillingness of the dis- putants to speak ingenuously what they meant ;* but as the principles of Hoadley and his advocates appeared, in the main, little else than those of Protestantism and toleration, the sentence of the laity, in the temper that was then gaining ground as to ecclesiastical subjects, was soon pronounced in their favor ; and the High-Church party discredited themselves by an opposition to what now pass for the incontrovertible tru- isms of religious liberty. In the ferment of that age, it was expedient for the state to _ scatter a little dust over the an- Convooation noiongersuf- gry insects ; the Convocation was fered to sit. j- i j • nr^tr* accordingly prorogued m 1717, dishonor done to the Church by a sermon preached by Mr. Benjamin Hoadley, at St. Lawrence Jewry, Sept. 29, 1705, containing positions contrai-y to the doctiine of the Church, expressed in the first and second parts of the Homily against Disobedience and willful Rebellion."- — Williins, iv., 634. * These qualities are so apparent, that after turning over some forty or fifty tracts, and consum- ing a good many hours on the Bangorian Contro- versy, I should find some difficulty in stating with precision the propositions in dispute. It is, how- ever, evident that a dislike, not, perhaps, exactly to the house of Brunswick, but to the tenor of George I.'s administration, and to Hoadley him- eelf, as an eminent advocate for it, who had been rewarded accordingly, was at the bottom a leading motive with most of the Church part5' ; some of whom, such as Hare, though originally of a Whig connection, might have had disappointments to ex- asperate them. There was nothing whatever in Hoadley's ser- mon injurious to the established endowments and privileges, nor to the discipline and government, of the English Church, even in theory. If this had been the case, he might be reproached with some inconsistency in becoming so large a jjartaker of her honors and emoluments. He even admitted the usefulness of censures for open immoralities, though denying all Church authority to oblige any one to external communion, or to pass any sen- tence which should detennine the condition of men with respect to the favor or displeasure of God. — Hoadley's Works, ii., 465, 493.. Another great question in this controversy was that of re- ligions liberty, as a civil right, which the Convoca- tion explicitly denied ; and another related to the and has never again sat for any business.* Those who are imbued with high notions of sacerdotal power have sometimes deplored this extinction of the Anglican great councD; and though its necessity, as I have already observed, can not possibly be defended as an ancient part of the Constitution, there are not wanting specious arguments for the ex- pediency of such a synod. It might bo urged that the Church, considered only as an integral member of the Commonwealth, and the greatest corporation within it, might justly claim that right of managing its own affairs which belongs to every other associa- tion ; that the argument from abuse is not sufficient, and is rejected Avith indignation when applied, as historically it might be, to representative goveraments and to civilliber- ty ; that in the present state of things, no ref- ormation even of secondaiy importance can be effected without difficulty, nor any looked for in greater matters, both from the indif- ference of the Legislature, and the reluct- ance of the clergy to admit its interposition. It is answered to these suggestions, that we must take experience when we possess it, rather than analogy, for our guide ; that ecclesiastical assemblies have in all ages and countries been mischievous, where they have been powerful, which that of our wealthy and numerous clergy must always be ; that if, notwithstanding, the Convoca- tion could be brought under the management of the state (which, by the nature of its component parts, might seem not unlikely), it must lead to the promotion of servile men, and the exclusion of merit still more than at present; that the severe remark of Claren- don, who obseiTes that of all mankind none form so bad an estimate of human affairs as churchmen, is abundantly confirmed by ex- perience ; that the representation of the Church in the House of Lords is sufficient for the protection of its interests ; that the clergy have an influence which no other cor- poration enjoys over the bulk of the nation, and may abuse it for the purposes of undue ascendency, unjust restraint, or factious ambition; that the hope of any real good in much-debated exercise of private judgment in re- ligion, which, as one party meant virtually to take away, so the other, perhaps, unreasonably exag- gerated. Some other disputes arose in the course of the combat, particularly the delicate problem of the value of sincerity as a plea for material errors. * Tindal, 539. Akne. Geo. I., Geo. U.] FROM HENRY Vn. TO GEORGE II. 627 reformation of the Church by its own assem- blies, to whatever sort of reform we may look, is utterly chimerical ; finally, that as the laws now stand, which few would in- cline to alter, the ratification of Parliament must be indispensable for any material change. It seems to admit of no doubt that these reasonings ought much to outweigh those on the opposite side. In the last four years of the queen's reign, Infiinge- sonie inroads had been made on mentsoftho the toleration granted to Dis- toleratioa by , f _ ^, , statutes un- seuters, whom the High-Church der Aune. pgj.fy j^^j^j abhorrence. They had for a long time inveighed against what was called occasional conformity, or the compliance of Dissenters with the provisions of the Test Act in order merely to qualify themselves for holding office, or entering into corporations. Nothing could, in the eyes of sensible men, be more advantageous to the Church, if a reunion of those who had separated from it were advantageous, than this practice. Admitting, even, that the motive was self-interested, has an estab- lished government, in Church or State, any better ally than the self-interestedness of mankind ? Was it not what a Presbyterian or Independent minister would denounce as a base and worldly sacrifice 7 and if so, was not the interest of the Anglican clergy ex- actly in an inverse proportion to this ? Any one competent to judge of human affairs would predict, what has turned out to be the case, that when the barrier was once taken down for the sake of convenience, it would not be raised again for conscience ; that the most latitudinarian theory, the most lukewarm dispositions in religion, must be prodigiously favorable to the reigning sect; and that the Dissenting clergy, though they might retain, or even extend, their influence over the multitude, would gradually lose it with those classes who could be affected by the Test ; but, even if the Tory faction had been cool-headed enough for such reflec- tions, it has, unfortunately, been sometimes less the aim of the clergy to reconcile those who differ from them than to keep them in a state of dishonor and depression. Hence, in the first Parliament of Anne, a bill to pre- vent occasional conformity more than once passed the Commons ; and on its being re- jected by the Lords, a great majority of William's bishops voting against the meas- ure, an attempt was made to send it up again in a very reprehensible manner, tack- ed, as it was called, to a grant of money; so that, according to the pretension of the Commons in respect to such bills, the Up- per House must either refuse the supply, or consent to what they disapproved.* This, however, having miscarried, and the next Parliament being of better principles, noth- ing further was done till 1711, when Lord Nottingham, a vehement High-Churchman, having united with the Whigs against the treaty of peace, they were injudicious enough to gratify him by concurring in a bill to prevent occasional conformity. f This was followed up by the ministry in a more decisive attack on the Toleration, an act for preventing the gi'owth of schism, which ex- tended and confirmed one of Charles II., enforcing on all schoolmasters, and even on all teachers in private families, a declaration of conformity to the Established Church, to be made before the bishop, from whom a li- cense for exercising that profession was also to be obtained. t It is impossible to doubt for an instant, that if the queen's life had preserved the Tory government for a few years, eveiy vestige of the Toleration would have been effaced. These statutes, records of their adver- saries' power, the Whigs, now ^ , . /- , , , . They are fords ot tfie ascendant, determm- repealed by ed to abrogate. The Dissenters ^'''S'' were unanimously zealous for the house of Hanover and for the ministiy; the Church of very doubtful loyalty to the crown, and still less affection to the Whig name. In the session of 1719, accordingly, the act against occasional conformity, and that re- straining education, were repealed. § It * Pari. Hist., vi., 362. t 10 Anne, c. 2. t 12 Anne, c. 7. Pari. Hist., vi., 1349. The Schism Act, according to Lockhart, was promoted by Bolingbroke, in order to gratify the high Tories, and to put Lord Oxford under the necessity of de- claring himself one way or other. " Though the Earl of Oxford voted for it himself, be concurred with tliose who endeavored to restrain some parts whicli they reckoned too severe ; and his friends in both Houses, particularly his brother. Auditor Harley, spoke and voted against it very earnest- ly."—P. 462. 5 5 Geo. I , c. 4. The Whigs out of power, among whom was Walpole, factiously and incon- sistently opposed the repeal of the Schism Act, so t!iat it passed with much difficulty — Pari. Hist., vii., 569. 628 CONSTITUTIONAL HISTORY OF ENGLAND [Chap. XVL had beea the intention to have also re- pealed the Test Act ; but the disunion then prevailing among the Whigs had caused so formidable an opposition even to the former measures, that it was found necessary to abandon that project. Walpole, more cau- tious and moderate than the ministry of 1719, perceived the advantage of reconciling the Church as far as possible to the royal family and to his own government ; and it seems to have been an article in the tacit compromise with the bishops, who were not backward in exerting their influence for the crown, that he should make no attempt to abrogate the laws which gave a monopoly of power to the Anglican community. We may presume, also, that the prelates under- took not to obstruct the acts of indemnity passed from time to time in favor of those who had not duly qualified themselves for the offices they held ; and which, after some time becoming regular, have in effect thrown open the gates to Protestant Dissenters, though still subject to be closed by either house of Parliament, if any jealousies should induce them to refuse their assent to this annual enactment.* Meanwhile, the principles of religious lib- Principles of erty, in all senses of the word, faiireuab- g^'^ed Strength by this eager lished. controversy, naturally pleasing as they are to the proud independence of the English character, and congenial to those of civil freedom, which both parties, Tory as much as Whig, had now learned sedu- lously to maintain. The non-juring and High-Church factions among the clergy produced few eminent men; and lost cred- it, not more by the folly of their notions than by their general want of scholarship and disregard of their duties. The Uni- versity of Oxford was tainted to the core with Jacobite prejudices ; but it must be * The first act of this kind appears to have been in 1727. — 1 Geo. II., c. 23. It was repeated next year, intermitted the next, and afterward renewed in every year of that reign except the fifth, the seventeenth, the twenty-second, the twenty-third, the twenty-sixth, and the thirtieth. Whether these occasional interruptions were intended to prevent the Non-conformists from relying upon it, or were caused by some accidental circumstance, must be left to conjecture. I believe that the re- newal has been regular every year since the ac- cession of George III. It is to be remembered that the present work was first published before the repeal of the Test Act in 1828. added that it never stood so low in respect- ability as a place of education.* The gov- ernment, on the other hand, was studious to promote distinguished men : and doubt- less the hierarchy in the first sixty years of the eighteenth century might very ad- vantageously be compared, in point of con- spicuous ability, with that of an equal peri- od that ensued. The maxims of persecu- tion were silently abandoned, as well as its practice ; Warburton, and others of less name, taught those of toleration with as much boldness as Hoadley, but without some of his more invidious tenets ; the more pop- ular writers took a liberal tone ; the names of Locke and Montesquieu acquired im- mense authority ; the courts of justice dis- countenanced any endeavor to revive op- pressive statutes ; and, not long after the end of George the Second's reign, it was adjudged in the House of Lords, upon the broadest principles of toleration laid down by Lord Mansfield, that non-conformity with the Established Church is recognized by the law, and not an offense at w^hich it connives. * We find in Gutch's Collectanea Curiosa, vol. i., p. 53, a plan ascribed to Lord-chancellor Mac- clesfield, for taking away the election of heads of colleges from the fellows, and vesting the nomina- tion in the great officers of state, in order to cure the disafiection and want of discipline which was justly complained of This remedy would have been, perhaps, the substitution of a permanent for a temporary evil. It appears, also, that Archbish- op Wake wanted to have had a bill, in 1716, for asserting the royal supremacy, and better regula- ting the clergy of the two universities (Coxe's Walpole, ii., 122) ; but I do not know that the pre- cise nature of this is any where mentioned. I can scarcely quote Amherst's Terrae Filius as authori- ty ; it is a very clever, though rather libelous, in- vective against the University of Oxford at that time ; but from internal evidence, as well as the confirmation which better authorities afibrd it, I have no doubt that it contains much truth. Those who have looked much at the ephemeral literature of these two reigns must be aware of many publicarions fixing the charge of prevalent disaffection on this University down to the death of George II. ; and Dr. King, the famous Jacobite master of St. Mary Hall, admits that some were left to reproach him for apostasy in going to court on the accession of the late king in 1760. The general reader will remember the Isis, by Mason, and the triumph of Isis, by Warton ; the one a se- vere invective, the other an indignant vindication ; but in this instance, notwithstanding the advanta- ges which satire is supposed to have over pane- gyric, we must award the laurel to the worst cause, and, what ia more extraordinary, to the worse poet. Amke, Geo. I., Gko. IL] FEOM HENRY VII. TO GEORGE II. 629 Atterbury, bishop of Rochester, the most lianishment distinguished of the party denom- of Atterbury. jnated High-Church, became the victim of his restless character and implaca- ble disafiection to the house of Hanover. The pretended king, for some years after his competitor's accession, had fair hopes from different powers of Europe — France, Sweden, Russia, Spain, Austria — (each of whom, in its turn, was ready to make use of this instrument), and from the powerful faction who panted for his restoration. This was, unquestionably, very numerous, though we have not, as yet, the means of fixing with certainty on more than compar- atively^ a small number of names. But a conspiracy for an invasion from Spain and a simultaneous rising was detected in 1722, which imphcated three or four peers, and among them the Bishop of Rochester.* The evidence, however, though tolerably convincing, being insufficient for a verdict at law, it was thought expedient to pass a bill of pains and penalties against this prelate, as well as others against two of his accom- plices. The proof, besides many corrobo- rating circumstances, consisted in three let- ters relative to the conspiracy, supposed to be written by his secretary Kelly, and ap- pearing to be dictated by the bishop. He was deprived of his see, and banished the kingdom for hfe.f This met with strong * Layer, who suffered on account of this plot, had accused several peers, among others Lord Cowper, who complained to the House of the pub- lication of his name ; and, indeed, though he was at that time strongly in opposition to the court, the charge seems wholly incredible. Lord Strafford, however, was probably guilty ; Lords North and Orrery certainly so. — Pari. Hist., viii., 203. There is even ground to suspect that Sunderland, to use Tindal's words, " in the latter part of his life, had entered into correspondences and designs which would have been fatal to himself or to the public." — P. 657. This is mentioned by Coxe, i., 16.5, and certainly confirmed by Lockhart, ii., 68, 70. But the reader will hardly give credit to such a story as Horace Walpole has told, that he coolly con- salted Sir Robert, his pohtical rival, as to the part they should take on the king's death. — Lord Ox- ford's Works, iv., 287. t State Trials, xvi., 324. Pari. Hist., viii., 195, et post. Most of the bishops voted against their restless brother; and Willis, bishop of Salisbury, made a very good but rather too acrimonious a speech on the bill. — Id., 298. Hoadley, who was no orator, published two letters in the newspaper, «igned Britannicus, in answer to Atterbury's de- fense ; which, after all that had passed, he might opposition, not limited to the enemies of the royal family, and is open to the same objection as the attainder of Sir John Fen- wick ; the danger of setting aside those pre- cious securities against a wicked government which the liiw of treason has furnished. As a vigorous assertion of the state's au- thority over the Church, we may commend the policy of Atterbury's deprivation; but perhaps this was ill purchased by a mis- chievous precedent. It is, however, the last act of a violent nature in any important matter which can be charged against the English Legislature. No extensive conspiracy of the Jacobite faction seems ever to have been Decline of in agitation after the fall of At- Jacob'te'- terbury. The Pfetender had his emissa- ries perpetually alert ; and it is understood that an enormous mass of letters from his English friends is in existence;* but very few had the courage, or rather folly, to plunge into so desperate a course as rebell- ion. Walpole's prudent and vigilant admin- istration, without transgressing the bounda- ries of that free Constitution for which alone the house of Brunswick had been preferred, kept in check the disaffected. He wisely sought the friendship of Cardinal Fleury, aware that no other power in Europe than France could effectually assist the banished family. After his own fall and the death of Fleuiy, new combinations of foreign pol- icy arose ; his successors returned to the Austrian connection ; a war with France better have spared. Atterbury's own speech is certainly below his fame, especially the perora- tion.—Id., 267. No one, I presume, will affect to doubt the real- ity of Atterbury's connections with the Stuart fam- il3', either before his attainder or during his exile. The proofs of the latter were published by Lord Hailes in 1768, and may be found, also, in Nicholls's edition of Atterbury's Correspondence, i., 148. Ad- ditional evidence is furnished by the Lockhart Pa- pers, vol. ii., passim. * The Stuart papers obtained lately from Rome, and now in his majesty's possession, are said to furnish copious evidence of the Jacobite intrigues, and to affect some persons not hitherto suspected. We have reason to hope that they will not be long withheld from the public, every motive for conceal- ment being wholly at an end.— 1827. Lord Mahon has communicated some information from these papers, in his history of England ; but the number of persons engaged in connection with the Pre- tender is rather less than had been expected. — 1841 . It is said that there were not less than fifty Jacobites in the Parliament of 1728. — Coxe, ii., 294. 630 CONSTITUTIONAL HISTORY OF ENGLAND [Chap. XVL broke out ; the grandson of James II. be- came master, for a moment, of Scotland, and even advanced to the center of this peaceful and unprotected kingdom. But this was hardly more ignominious to the government than to the Jacobites them- selves ; none of them joined the standard of their pretended sovereign ; and the re- bellion of 1745 was conclusive, by its own temporary success, against the possibility of his restoration.* From this time the government, even when in search of pre- texts for alarm, could hardly affect to dread a name grown so contemptible as that of the Stuart party. It survived, however, for the rest of the reign of George II. in those magnanimous compotations which had al- waj's been the best evidence of its courage and fidelity. Though the Jacobite paity had set before Prejudices its eyes an object most danger- «,g'mng''^ ous to the public tranquillity, and family. which, could it have been attain- ed,, would have brought on again the con- * The Tories, it is observed in the MS. journal of Mr. Yorke (second Earl of Hardwicke), showed no sign of affection to the government at the time when the invasion was expected in 1743, but treated it all with indifference. — Pari. Hist., xiii., 6G8. In fact, a disgracefal apathy pervaded the nation ; and, according to a letter from Mr. Fox to Mr. Wiunington in 1745, which I only quote from recollection, it seemed perfectly uncertain, from this general passiveness, whether the Revolution might not be suddenly brought about. Yet very few comparatively, I am persuaded, bad the slight- est attachment or prejudice in favor of the house of Stuart ; bat the continual absence from England, and the Hanoverian predilections of the two Georges, the feebleness and factiousness of their administration, and of public men in general, and an indefinite opinion of misgovemment, raised through the press, though certainly without op- pression or aibitrary acts, had gradually alienated the mass of the nation. But this would not lead men to expose their lives and fortunes : and hence the people of England, a thing almost incredible, lay quiet and nearly unconcerned, while the httle arm}' of HigUanders came every day nearer to the capital. It is absurd, however, to suppose that they could have been really successful by march- ing onward, though their defeat might have been more glorious at Finchley than at CuUoden.— 1827. I should not have used, of course, the word absurd, if Lord Mahon's History had been published, in which that acute and impartial writer inclines to the opinion of Charles Edward's probable success. I am still, however, persuaded that either the Duke of Cumberland must have overtaken him before he reached London, or that his small army would have been beaten by the king. — 1842. tention of the seventeenth century ; though, in taking oaths to a government against which they were in conspiracy, they show- ed a systematic disregard of obligation, and were as little mindful of allegiance, in the years 171.5 and 174.5, to the prince they owned in their hearts as they had been to him whom they had professed to acknowl- edge, it ought to be admitted that they were rendered more numerous and formidable than was necessary by the faults of the reigning kings or of their ministers. They were not latterly actuated, for the most part (perhaps with veiy few exceptions), by the slavish principles of indefeasible right, much less by those of despotic power.* They had been so long in opposition to the court, they had so often spoken the language of liberty, that we may justly believe them to have been its friends. It was the jeaioosyof policy of Walpole to keep alive the '^'^ strongest prejudice in the mind of George II., obstinately retentive of prejudice, as such narrow and passionate minds always are, against the whole body of the Tories. They were ill received at court, and gener- ally excluded, not only from those depart- * [Even in 1715 this was not the case with the Jacobite aristocracy. " When you were first driv- en into this interest," says Bolingbroke to Sir W. Wyndham, " I may appeal to you for the notion which the party had. You thought of restoring him by the strength of the Tories, and of opposing j a Tory king to a Whig king. You took him up as I the instrument of your revenge and of yoar ambi- tion. You looked on him as yoar creature, and never once doubted of making what terms you pleased with liira. This is so true that the same language is still held to the catechumens in Jaco- bitism. Were the contrary to be avowed even now, the party in England would soon disunite. Instead of making the Pretender their tool, tbey are his. Instead of having in view to restore him on their own terms, they are laboring to do it with- out any terms ; that is, to speak properly, they are ready to receive him on his," &c. This was writ- ten in 1717, and seems to indicate that the real Jacobite spirit of hereditarj- right was verj' strong among the people ; and this continued through the reign of George I., as I should infer from the press. But Bolingbroke himself had great influence in subduing it afterward, and, though of course not obliterated, we trace it less and less down to the extinction of the Jacobite party in the last years of George II. Leslie's writings would have been received with scoi-n by the young Jacobites of 1750. Church mobs were frequent in 1715; but we scarcely. I think, find much of them afterward. In London and the chief towns, the populace were chiefly Whig.— 1845.] Anne, Gbo. I., Geo. II ] FROM HENRY VII. TO GEORGE II. 631 ments of office which the dominant party have a right to keep in their power, but from the commission of the peace, and ev- ery other subordinate trust.* This illiber- al and selfish course retained many, no doubt, in the Pretender's camp, who must have perceived both the improbability of his restoration, and the difficulty of reconciling it with the safety of our Constitution. He was, indeed, as well as his son, far less wor- thy of respect than the cotemporary Bruns- wick kings : without absolutely wanting ca- pacity or courage, he gave the most unde- niable evidence of his legitimacy by con- stantly resisting the counsels of wise men, and yielding to those of priests ;f while his son, the fugitive of Culloden, despised and deserted by his own part3% insulted by the court of France, lost with the advance of years even the respect and compassion which wait on unceasing misfortune, the last sad inheritance of the house of Stuart.J * See Pari. Hist., xiii., 1244 ; and other proofs might be brought from the same work, as well as from miscellaneous authorities of the age of George II. t [Bolingbroke's character of James is not whol- ly to be trusted. " He is naturally inclined to be- lieve the worst, which I take to be a certain mark of a mean spirit and a wicked soul ; at least I am 8ure that the contrary quality, when it is not due to weakness of understanding, is the fruit of a gen- erous temper and an honest heart. Prone to judge ill of all mankind, he will rarely be seduced by his credulity ; but I never knew a man so capable of being the babble of his distrust and jealousy." — Letter to Sir W. Wyndham. Thus Bolingbroke, ander the sting of his impetuous passions, threw away the scabbard when he quarreled with the house of Stuart, as he had done with the Whigs at home. But James was not a man altogether without capacity : his private letters are well and sensibly written. Like his father, he had a nar- row and obstinate, but not a weak, understanding. His son, Charles Edward, appears to me inferior to him in this respect, as well as in his moral prin- ciple.—1845.] t See in the Lockhart Papers, ii., 565, a curious relation of Charles Edward's behavior in refusing to quit France after the peace of Aix la Chapelle. It was so insolent and absurd that the government was provoked to aiTest him at the opera, and lit- erally to order him to be bound hand and foot ; an outrage which even his preposterous conduct could hardly excuse. Dr. King was in correspondence with this prince for some years after the latter's foolish, though courageous visit to London in September, 1750, which he left again in five days, on finding him- self deceived by some sanguine friends. King «ays be was wholly ignorant of our history and But they were little known in England, and from unknown princes men are prone to Constitution. "I never heard him express any noble or benevolent sentiment, the certain indica- tions of a great soul and good heart, or discover any sorrow or compassion for the misfortune of so many worthy men who had suffered in his cause." —Anecdotes of his own Times, p. 201. He goes on to charge him with love of money and other faults ; but his great folly in keeping a mistress, Mrs. W alkinshaw, whose sister was housekeeper atLeicester House, alarmed the Jacobites. "These were all men of fortune and distinction, and many of them persons of the first quality, who attached themselves to the Pretender as to a person who they imagined might be made the instrament of saving tlieir country. They were sensible that by Walpole's administration the English government was become a system of corraption ; and that Wal- pole's successors, who pursued his plan without any of his abilities, had reduced us to such a de- plorable situation that our commercial interest was sinking, our colonies in danger of being lost, and Great Britain, which, if her powers were properly exerted, as they were afterward in Mr. Pitt's ad- ministiation, was able to give laws to other na- tions, was become the contempt of all Europe." — • P. 208. This is, in truth, the secret of the contin- uance of Jacobitism. But possibly that party were not sony to find a pretext for breaking off so hope- less a connection, which they seem to have done about 1753. Mr. Pitt's great successes reconciled them to the administi-ntion, and his liberal conduct brought back those who had been disgusted by an exclusive policy. On the accession of a new king they flocked to St. James's, and probably scarcely one person of the rank of a gentleman south of the Tweed was found to dispute the right of the house of Brunswick after 17C0. Dr. King himself, it may be obsei-ved, laughs at the old passive obedience doctrine (page 193) ; so far was he from being a Jacobite of that school. A few non-juring congregations lingered on far into the reign of George HI., presided over by the successors of some bishops whom Lloyd of Nor- wich, the last of those deprived at the Revolution, had consecrated in order to keep up the schism. A list of these is given in D'03'ly's Life of San- croft, vol. ii., p. 34, whence it would appear that the last of them died in 1779. I can trace the line a little further: a bishop of that separation, named Cartwright, resided at Shrewsbury in 1793, carry- ing on the business of a surgeon. — State Trials, xxiii., 1073. I have heard of similar congregations in the west of England still later. He had, how- ever, become a very loyal subject to King George : a singular proof of that tenacity of life by which religious sects, after dwindling down through neg- lect, excel frogs and tortoises ; and that even when they have become almost equally cold-blooded ! [A late publication, Lathbury's History of the Non-ju- rors, gives several names of non-juring bishops, down to the close of the century, though it does not absolutely follow that all who frequented their congregations would have refused the Oath of Al- 632 CONSTITUTIONAL HISTORY OP ENGLAND [Chap. XVL hope much : if some could anticipate a re- dress of every evil from Frederic, prince of Wales, whom they might discover to be destitute of respectable qualities, it can not be wondered at that others might draw equally flattering prognostics from the ac- cession of Charles Edward. It is almost certain that, if either the claimant or his son had embraced the Protestant religion, and had also manifested any superior strength of mind, the German prejudices of the reigning family would have cost them the throne, as they did the people's affec- tions. Jacobitism, in the great majority, was one modification of the spirit of liberty burning strongly in the nation at this peri- od. It gave a rallying-point to that indef- inite discontent, which is excited by an ill opinion of rulers, and to that disinterested, though ignorant patriotism which boils up in youthful minds. The government in possession was hated, not as usurped, but as corrupt ; the banished line was demand- ed, not so much because it was legitimate, but because it was the fancied means of re- dressing grievances and regenerating the Constitution. Such notions were doubtless absurd; but it is undeniable that they were common, and had been so almost from the Revolution. I speak only, it will be ob- served, of the English Jacobites ; in Scot- land the sentiments of loyalty and national pride had a vital energy, and the Highland chieftains gave their blood, as freely as their southern allies did their wine, for the cause of their ancient kings.* legiance. Of such strict Jacobites, there were, as I have said, but few left south of the Tweed after the accession of George III. Still some there may have been, UDluiown by name, in the middling ranks ; and Mr. Lathbury has quoted Jacobite pamphlets as late as 1759, and probably the au- thors of these did not renounce their opinions in the next year. One or two writers in this strain have met my observation rather later. The last is in 1774, when an absurd letter against the Revo- lution having been inadvertently admitted into the Morning Chronicle and Public Advertiser, Mr. Fox, with less good nature than belonged to him, in- duced the House of Commons to direct a prosecu- tion of the printers by the attorney-general ; and they were sentenced to three months' imprison- ment.— Pari. Hist., xvii., 1054. Armual Register, 1774, p. 164.— 1845.] * [Lord Mahon printed in 1842, but only for the Roxburghe Club, some extracts from dispatches (in the State Paper Office) of the British envoy at Florence, containing information, from time to time. No one can have looked in the most cur- sory manner at the political writings of these two reigns, or at the debates of Parliament, without being struck by the continual pre- dictions that our liberties were on the point of extinguishment, or at least by apprehen- sions of their being endangered. It might seem that little or nothing had been gained by the Revolution, and by the substitution of an elective dynasty. This, doubtless, it was the interest of the Stuart party to main- tain or insinuate ; and in the conflict of fac- tions, those who, with far opposite views, had separated from the court, seemed to lend them aid. The declamatory exagger- ations of that able and ambitious body of men who co-operated against the ministry of Sir Robert Walpole have long been rejected; and perhaps, in the usual reflux of popular opinion, his domestic administration (for in foreign policy his views, so far as he was permitted to act upon them, appear to have been uniformly judicious) has obtained of late rather an undue degree of favor. I have already observed that, for the sake of his own ascendency in the cabinet, he kept up unnecessarily the distinctions of the Whig and Tory parties, and thus impaired the stability of the royal house, which it was his chief care to support ; and, though his government was so far from any thing op- pressive or arbitrary that, considered either relatively to any former times, or to the ex- tensive disaffection known to subsist, it was as to the motions and behavior of Charles Edward. Were it not for the difficulty under which our min- ister at that court must generally labor to iind any materials for a letter to tlie secretary of state, we might feel some wonder at the gravity with which Sir Horace Mann seems to treat the table-talk and occasional journeys of the poor old exile, even down to 1786. It may be said that his excessive folly might render him capable of any enterprise, however extravagant, as long as he had bodily strength left ; and that he is supposed to have kept up some connection with the Irish priesthood to the end of his life, so as to recommend bishops to the court of Rome. But though Sir Horace Mann, in a letter of the date Nov. 11, 1783, is " every day more convinced that something of importance is carrying on between the court of France and the Pretender, and has reason to suspect that the lat- ter either has a connection with the King of Swe- den, or is endeavoring to gain his friendship," he soon after discovers that this important matter wa« only an application to France for a pension, which Gustavus III., then in Italy, would, out of compas- sion, have been glad to promote. — 1845.] AXNE, Geo. I., Geo. II.] FROM HENRY VII. TO GEORGE 11. 633 uncommonly moderate ; yet, feeling or feign- ing alarm at the Jacobite intrigues on the one hand, at the democratic tone of public sentiment and of popular writings on tlie other, he labored to preserve a more narrow and oligarchical spirit than was congenial to so great and brave a people, and trusted not enough, as indeed is the general fault of ministers, to tlie sway of good sense and honesty over disinterested minds ; but, as he never had a complete influence over his master, and knew that those who opposed him had little else in view than to seize the reigns of power and manage them worse, his deviations from the straight course are more pardonable. The clamorous invectives of this opposi- tion, combined with the subsequent derelic- tion of avowed principles by many among them when in power, contributed more than any thing else in our history to cast obloquy and suspicion, or even ridicule, on the name and occupation of patriots. Men of sordid and venal characters always rejoice to gen- eralize so convenient a maxim as the non- existence of public virtue. It may not, how- ever, be improbable, that many of those who took a part in this long contention were less insincere than it has been the fashion to believe, though led too far at the moment by their own passions, as well as by the ne- cessity of coloring highly a pictiire meant for the multitude, and reduced afterward to the usual compromises and concessions, without which power in this country is ever unattainable ; but, waving a topic too gener- ally historical for the present chapter, it will be worth while to consider what sort of ground there might be for some prevalent subjects of declamation, and whether the power of government had not, in several respects, been a good deal enhanced since the beginning of the century. By the power of government I mean not so much the per- sonal authority of the sovereign as that of his ministers, acting, perhaps, without his directions ; which, since the reign of Will- iam, is to be distinguished, if we look at it analytically, from the monarchy itself. I. The most striking acquisition of power Chani^cs in cown in the new model the Constitu- of government, if I may use such tion whfre'in . . , it was fouud- an expression, is the permanence of a regular military force. The reader can not need to be reminded that no army existed before the civil war; that the guards in the reign of Charles II. were about 5000 men ; that in the breathing-time between the peace of Ryswick and the war of the Spanish succession, the Commons could not be brought to keep up more than 7000 troops. Nothing could be more re- pugnant to the national prejudices than a standing army. The Tories, partly from regard to the ancient usage of the Constitu- tion, partly, no doubt, from a factious or dis- affected spirit, were unanimous in protest- ing against it. The most disinterested and zealous lovers of liberty came with gi'eat suspicion and reluctance into what seemed so perilous an innovation. But the court, after the accession of the house of Hanover, had many reasons for insisting upon so great an augmentation of its power and security. It is remarkable to perceive by what stealthy advances this came on. Two long wars had rendered the army a profession for men in the higher and middling classes, and famil- iarized the nation to their dress and rank ; it had achieved great honor for itself and the English name ; and in the nature of man- kind the patriotism of gloiy is too often an overmatch for that of liberty. The two kings were fond of warlike policy, the sec- ond of war itself ; their schemes, and those of their ministers, demanded an imposing attitude in negotiation, which an army, it was thought, could best give ; the cabinet was for many years entangled in alliances, shifting sometimes rapidly, but in each com- bination liable to produce the interruption of peace. In the new system which ren- dered the houses of Parliament partakers in the executive administration, they were drawn themselves into the approbation of eveiy successive measure, either on the propositions of ministers, or, as often hap- pens more indirectly, but hardly less effect- ually, by passing a negative on p^,„„„g„, those .of their opponents. The military number of troops for which a vote was annually demanded, after some varia- tions, in the first years of George I., was, during the whole administration of Sir Rob- ert Walpole, except when the state of Eu- rope excited some apprehension of disturb- ance, rather more than 17,000 men, inde- pendent of those on the Irish establishment, but including the garrisons of Minorca and Gibraltar ; and this continued with little al- 634 CONSTITUTIONAL HISTORY OF ENGLAND [Chap. XVX teration to be our standing army m time of peace during the eighteenth century. This army was always understood to be Apprehen- ^^P^ on foot, as it is stUl express- Bionsfrumit. preamble of every Mu- tiny Bill, for better preserving the balance of power in Europe. The Commons vrould not for an instant admit that itwas necessary as a permanent force, in order to maintain the government at home. There can be no question, however, that the court saw its advantage in this light ; and I am not per- fectly sure that some of the multiplied ne- gotiations on the Continent in that age were not intended as a pretext for keeping up the army, or at least as a means of exciting alarm for the security of the established govern- ment. In fact, there would have been re- bellions in the time of George I., not only in Scotland, which perhaps could not other- wise have been preserved, but in many parts of the kingdom, had the Parliament adhered with too pertinacious bigotry to their ancient maxims ; yet these had such influence that it was long before the army was admitted by every one to be perpetual ; and I do not know that it has ever been rec- ognized as such in our statutes. Mr. Pul- teney, so late as 1732, a man neither disaf- fected nor democratical, and whose views extended no further than a change of hands, declared that he " always had been, and always would be, against a standing army of any kind ; it was to him a terrible thing, whether under the denomination of Par- liamentary or any other. A standing army is still a standing army, whatever name it be called by ; they are a body of men distinct from the body of the people ; they are gov- erned by different laws ; blind obedience and an entire submission to the orders of their commanding officer is their only principle. The nations around us are already enslaved, and have been enslaved by those very means ; by means of their standing armies they have eveiy one lost their liberties ; it is, indeed, impossible that the liberties of the people can be preserved in any countiy where a numerous standing amiy is kept up."* This wholesome jealousy, though it did not prevent what was, indeed, for many reasons, not to be dispensed with, the es- tablishment of a regulai' force, kept it within bounds which possibly the administi-ation, if ' * Pari. Hist., viii., 904. left to itself, would have gladly overleaped. A clause in the Mutiny Bill, first inserted in 1718, enabling couits-martial to punish ma- tiny and desertion with death, which bad hitherto been only cognizable as capital of- fenses by the civil magistrate, was carried by a very small majority in both houses.* An act was passed in 1735, directing that no troops should come within two miles of any place, except the capital or a gairisoned town, during an election ;f and on some oc- casions, both the Commons and the courts of justice showed that they had not forgotten the maxims of their ancestors as to the su- premacy of the civil power.t A more im- portant measure was projected by men of independent principles, at once to secure the kingdom against attack, invaded as it had been by rebels in 1745, and thrown into the most ignominious panic on the rumors of a French armament in 1756, to take away the pretext for a large standing force, and per- haps to furnish a guarantee against any evil purposes to which in future times it might be subservient, by the establish- Establishment ment of a national militia, under miiitia. the sole authority, indeed, of the crown, but commanded by gentlemen of sufficient es- tates, and not liable, except in wur, to be marched out of its proper county. This favorite plan, with some reluctance on the part of the government, was adopted in 1757. § But though, during the long pe- riods of hostilities which have unfortunately ensued, this embodied force has doubtless placed the kingdom in a more respectable * Pari. Hist, vii., 536. t 8 Geo. 11, c. 30. Pari. Hist, viii., fc83. I The miUtary having been called in to quell an alleged riot at Westminster election in 1741, it was resolved, Dec. 22, " that the presence of a regular body of armed soldiers at an election of members to serve in Parliament is a high infringe- ment of the liberties of the subject, a manifest vio- lation of the freedom of elections, and an open de- fiance of the laws and constitution of this king- dom." The persons concerned in this, having been ordered to attend the House, received on their knees a very severe reprimand from the speaker. — Pari. Hist., ix., 326. Upon some occasion, the circumstances of which I do not recollect, Chief- justice Willes uttered some laudable sentiments as to the subordination of military power. § Lord Hardwicke threw out the Militia Bill in 1756. thinking some of its clauses rather too Re- publican, and, in fact, being adverse to the scheme. — Pari. Hist., xv., 704. H. Walpole's Memoirs, ii., 45. Coxe's Memoirs of Lord Walpole, 450. Anne, Geo. I., Geo. 11.] FROM HENRY VII. TO GEORGE II. G35 state of security, it has not much contributed to diminish the number of our regular forces ; and, from some defects in its constitution, arising out of too great attention to our an- cient local divisions, and of too indiscriminate a dispensation with personal service, which has filled the ranks with the refuse of the community, the militia has grown unpopular and burdensome, rather considered of late by the government as a means of recruiting the army than as worthy of preservation in itself, and accordingly thrown aside in time of peace, so that the person who acquired great popularity as the author of this insti- tution, lived to see it worn out and gone to decay, and the principles, above all, upon which he had brought it forward, just enough remembered to be turned into ridi- cule. Yet the success of that magnificent organization which, in our own time, has been established in France, is sufficient to evince the possibility of a national militia; and wo know with what spirit such a force was kept up for some years in this country, under the name of volunteers and yeoman- ry, on its only real basis, that of property, and in such local distribution as convenience pointed out. Nothing could be more idle, at any time since the Revolution, than to suppose that the regular army would pull the speaker out of his chair, or in any manner be em- ployed to confirm a despotic power in the crown. Such power, I think, could never have been the waking dream of either king or minister; but as the slightest inroads upon private rights and liberties are to be guarded against in any nation that deserves to be called free, we should always keep in mind not onl}' that the military power is subordinate to the civil, but, as this subor- dination must cease where the former is frequently employed, that it should never be called upon in aid of the peace without sufficient cause. Nothing would more break down this notion of the law's supremacy than the perpetual interference of those who are really governed by another law ; for the doctrine of some judges, that the soldier, being still a citizen, acts only in preservation of the ]mblic peace, as anoth- er citizen is bound to do, must be felt as a sophism, even by those who can not find an answer to it; and, even in slight circum- 8taDces, it is not conformable to the prin- ciples of our government to make that vain display of military authority which disgusts us so much in some Continental kingdoms. But, not to dwell on this, it is more to our immediate purpose that the executive pow- er has acquired such a coadjutor in the regular army, that it can, in no probable emergency, have much to apprehend from popular sedition. The increased facilities of transport, and several improvements in military art and science, which will occur to the reader, have in later times greatly enhanced this advantage. II. It must be apparent to every one that since the Restoration, and especially since the Revolution, an immense power has been thrown into the scale of both houses of Parliament, though practically in more frequent exercise by the Lower, in consequence of their annual session during several months, and of their almost luilim- ited rights of investigation, discussion, and advice. But if the crown should by any means become secure of an as- inUuen^.a cendency in this assembly, it is ""ef Paf- . , , , , , , liameiit by evident that, although the prerog- places and ative, technically speaking, might P'^"^"'"'- be diminished, the power might be the same, or even possibly more efficacious ; and that this result must be proportioned to the degree and security of such an as- cendency. A Parliament absolutely, and in all conceivable circumstances, under the control of the sovereign, whether through intimidation or comipt subservience, could not, without absurdity, be deemed a co- ordinate power, or, indeed, in any sense, a restraint upon his will. This is, however, an extreme supposition, which no man, un- less both giossly factious and ignorant, will ever pretend to have been realized. But, as it would equally contradict notorious truth to assert that eveiy vote has been disinterested and independent, the degree of influence which ought to be permitted, or which has at anj' time existed, becomes one of the most important subjects in our Constitutional policy. I have mentioned in the last chapter both the provisions inserted in the Act Attempts to of Settlement, with the design of ^strain it. excluding altogether the possessors of pub- lic office from the House of Commons, and the modifications of them by several acts of the queen. These were deemed by the 636 CONSTITUTIONAL HISTORY OP ENGLAND [Cha?. XVI. country party so inadequate to restrain the 1 dependents of power from overspreading the benches of the Commons, that perpetual attempts were made to carry the exclusive principle to n far gre.ater length. In the next two reigns, if we can tnist to the un- contradicted language of debate, or even to the descriptions of individuals in the lists of each Parliament, we must conclude that a very undue proportion of dependents on the favor of government were made its censors and counselors. There was still, however, so much left of an independent spirit, that bills for resti'icting the number of placemen, or excluding pensioners, met alwjiys with countenance ; they were sometimes reject- ed by very slight majorities ; and, after a time. Sir Robert Walpole found it expedi- ent to reserve his opposition for the surer field of the other House.* After his fall, it was imputed with some justice to his successors, that they shrunk in power from the bold reformation which they had so frequently endeavored ; the king was in- dignantly averse to all retrenchment of his power, and they wanted probably both the inclination and the influence to cut off all corruption. Yet we owe to this rainistiy Place Bill Place Bill of 1743, which, de- of 1743. rided as it was at the time, seems to have had a considerable effect ; exclud- ing a great number of inferior officers from * By the act of 6 Anne, c. 7, all persons holding pensions from the crown during pleasore were made incapable of sitting in the House of Com- mons; which was extended by 1 Geo. I., c. 56, to those who held them for any term of years. But the difficulty was to ascertain the fact, the govern- ment refusing information. Mr. Sandys accord- ingly proposed a bill in 1730, by which every member of the Commons was to take an oath that he did not hold any such pension, and that, in case of accepting one, he would disclose it to the House within fourteen days. This was carried by a small majority through the Commons, but rejected in the other House ; which happened again in 1734 and in 1740.— Pari. Hist., viii., 789 ; ix., 369 ; xi., 510. The king, in an angry note to Lord Townshend, on the first occasion, calls it ' this villanous bill." — Coxe's Walpole, ii., 537, 673. A bill of the same gentleman to limit the number of placemen in the House had so far worse success, that it did not reach the Serbonian bog. — Pari. Hist., xi., 328. Bishop Sherlock made a speech against the pre- vention of corrupt practices by the Pension Bill, ■which, whether justly or not, ex'cited much indig- nation, and even gave rise to the proposal of a bill for putting an end to the translation of bishops. — Id., viii., 847. the House of Commons, which has never since contained so revolting a list of court- deputies as it did in the age of Walpole.* But, while this acknowledged influence of lucrative office might be pre- secret cor- sumed to operate on many stanch adherents of the actual administration, there was always a sti-ong suspicion, or, rather, a general certainty, of absolute corruption. The proofs in single instances could never, perhaps, be established ; which, of course, is not surprising. But no one seriously called in question the reality of a system- atic distribution of money by the crown to the representatives of the people ; nor did the corrupters themselves, in whom the crime seems always to be deemed less heinous, disguise it in private. f It is true that the appropriation of supplies, and the established course of the Exchequer, render the greatest part of the public revenue secure from misapplication ; but, under the head of secret service money, a very large sum was annually expended without account, and some other parts of the civil list were equally free from all public examination.! The committee of secrecy appointed after the resignation of Sir Robert Walpole en- deavored to elicit some distinct evidence of this misapplication ; but the obscurity nat- ural to such transactions, and the guilty * 25 Geo. II., c. 22. The king came very re- luctantly into this measure : in the preceding ses- sion of 1742, Sandys, now become chancellor of the Exchequer, had opposed it, though originally his own ; alleging in no very Parliamentary mamier that the new ministrj- bad not yet been able tore- move his majesty's prejudices. — Pari. Hist., xii., 896. t Mr. Fox declared to the Duke of Newcastle, when the office of secretary of state, and what was called the management of the House of Commons, was oflfered to him, " that he never desired to toach a penny of the secret ser\ ice money, or to know the disposition of it, further than was necessary to enable him to speak to the members mlhout being ridiculous." — Dodington's Diary, 15th of March, 1754. H. Walpole confirms this in nearly the same words. — Mem. of Last Ten Years, i., 332. } In Coxe's Memoirs of Sir R. Walpole, iii., 60J^ we have the draught, by that minister, of an in- tended vindication of himself after his retirement from office, in order to show the impossibility of misapplying public money, which, however, he does not show ; and his elaborate account of the method by which payments are made out of the Exchequer, tliough valuable in some respects, seems rather intended to lead aside the unprac- ticed reader. Anne, Geo. I, Geo. II.] FROM HENRY Vn. TO GEORGE II. 637 collusion of subaltern accomplices, who shrouded themselves in the protection of the law, defeated every hope of punish- ment, or even pereonal disgrace.* This practice of direct bribei-y continued, beyond doubt, long afterward, and is generally sup- posed to have ceased about the termination of the American war. There is hardly any doctrine with re- spect to our government more in fashion, than that a considerable influence of the crown (meaning, of course, a cori'upt influ- ence) in both houses of Parliament, and es- pecially in the Commons, has been render- ed indispensable by the vast enhancement of their own power over the public admin- istration. It is doubtless most expedient that many servants of the crown should be also servants of the people ; and no man who values the Constitution would separate the functions of ministers of state from those of legislators. The glory that waits on wisdom and eloquence in the Senate should always be the great prize of an English statesman, and his high road to the sover- eign's favor. But the maxim that private vices are public benefits is as sophistical as it is disgusting ; and it is self-evident, both that the expectation of a clandestine recom- pense, or what, in effect, is the same thing, of a lucrative olBce, can not be the motive of an upright man in his vote, and that if an entire Parliament should be composed of such venal spirits, there would be an end of all conti-ol upon the crown. There is no real cause to apprehend that a virtuous and enlightened government would find difficulty in resting upon the reputation justly due to it, especially when we throw into the scale that species of influence which must ever subsist, the sentiment of respect and loyalty to a sovereign, of friendship and gratitude to a minister, of habitual confidence in those intrusted with power, of averseness to con- fusion and untried change, which have, in fact, more extensive operation than any * This secret committee were checked at every step for want of snfRcient powers. It is absurd to assert, like Mr. Coxe, that they advanced accusa- tions which they could not prove, when the means of proof were withheld. Sorope and Paxton, the one secretary, the other solicitor, to the treasury, being examined about very large sums traced to their hands, and other matters, refused to answer questions that might criminate themselves ; and a bill to indemnify evidence was lost in the Upper Hoase. — Pari. Hist., xii., 625, et post. sordid motives, and which must almost al- ways I'onder them unnecessary. III. The co-operation of both houses of Parliament with the executive Commit- government enabled the latter to "r^aeh of convert to its own purpose what privilege- had often, in former times, been employed against it, the power of inflicting punishment for bi-each of privilege. But as the subject of Parliamentary privilege is of no slight importance, it will be convenient on this occasion to bring the whole before the read- er in as concise a summary as possible, dis- tinguishing the power, as it relates to of- fenses committed by members of either House, or against them singly, or the hous- es of Parliament collectively, or against the government and the public. 1. It has been the constant practice of the House of Commons to repress disor- derly or indecent behavior by a censure de- livered through the speaker. Instances of this are even noticed in the Journals under Edward VI. and Mary ; and it is, in fact, essential to the regular proceedings of any assembly. In the former reign they also committed one of their members to the Tower ; but in the famous case of , ' of mem- Arthur Hall in 1581, they estab- bcrs for lished the first precedent of pun- ""^""'^ ishing one of their own body for a printed libel derogatory to them as a part of the Legislature ; and they inflicted the three- fold penalty of imprisonment, fine, and ex- pulsion.* From this time forth it was un- derstood to be the law and usage of Parlia- ment, that the Commons might commit to prison any one of their members for mis- conduct in the House, or relating to it.f The right of imposing a fine was veiy rarely asserted after the instance of Hall ; but that of expulsion, no eariier precedent whereof * See ante, p. 160. t [In the case of Mr. Manley, committed Nov. 9, 1696, for saying, in the debate on Sir John Fen- wick's attainder, that it would not be the first time people have repented of making their court to tha government at the hazard of the liberties of the people, the speaker issued his warrant to the lieutenant of the Tower to receive him. — Commons' Journals. It will be remembered, that in 1810, on the committal of Sir F. Burdett, the governor of the Tower required the speaker's warrant to be backed by the secretary of state ; with which tha Commons thought fit to put up, though it cut at the root of the privilege of imprisoning ;>ropno ^'are. — 1845.] 638 CONSTITUTIONAL HISTORY OF ENGLAND [Chap. XVI. has been recorded, became as indubitable as frequent and unquestioned usage could render it. It was carried to a great excess by the Long Parliament, and again in the year 1G80. These, however, were times of extreme violence ; and the prevailing faction had an apology in the designs of the court, which required an energy beyond tlie law to counteract them. The offenses, too, which the Whigs thus punished in 1680 were, in their effect, against the pow- er and even existence of Parliament. The privilege was far more unwarrantably ex- erted by the opposite party in 1714, against Sir Richard Steele, expelled the House for writing the Crisis, a pamphlet reflecting on the ministry. This was, perhaps, the first instance wherein the House of Commons so identified itself with the executive ad- ministration, independently of the sover- eign's person, as to consider itself libeled by those who impugned its measures.* In a few instances an attempt was made to cany this further, by declaring the party incapable of sitting in Parliament. It is hardly necessary to remark, that upon this rested the celebrated question of the Mid- dlesex election in 1769. If a few prece- dents, and those not before the year 1680, were to determine all controversies of con- stitut'onal law, it is plain enough from the Journals that the House have assumed the power of incapacitation. But as such an authority is highly dangerous and unneces- sary for any good purpose, and as, accord- ing to all legal rules, so extraordinary a power could not be supported except by a sort of prescription which can not be shown, the final resolution of the House of Com- mons, which condemned the votes passed in times of great excitement, appears far more consonant to just principles. 2. The power of each house of Parlia- of strangers ment Over those who do not be- for offenses j(. jg gj- ^ niore extensive agaiust » ineiiiiiers, consideration, and has lain open, in some respects, to more doubt than that over its own members. It has been exer- cised, in the first place, very frequently, and from an early period, in order to pro- * Pari. Hist., vi., 1265. Walpole says, in speak- ing for Steele, " the liberty of the press is un- restrained ; how, then, shall a part of the Legisla- tore dare to punish that as a crime which is not declared to be so by any law framed by the whole?" tect the members personally, and in their properties, from any thing which has been construed to interfere with the discharge of their functions. Every obstruction in these duties, by assaulting, challenging, insulting any single representative of the Commons, has from the middle of the sixteenth centu- ly downward, that is, from the beginning of their regular Journals, been justly deemed a breach of privilege, and an offense against the whole body. It has been punished generally by commitment, either to the cus- tody of the House's officer, the sergeant-at- arms, or to the king's prison. This sum- mary proceeding is usually defended by a technical analogy to what are called attach- ments for contempt, by which every court of record is entitled to punish by imprison- ment, if not also by fine, any obstruction to its acts or contumacious resistance of them ; but it tended also to raise the dignity of Parliament in the eyes of the people, at times when the government, and even the courts of justice, were not greatly inclined to regard it ; and has been also a necessary safeguard against the insolence of power. The majority are bound to respect, and, in- deed, have respected, the rights of every member, however obnoxious to them, on all questions of privilege. Even in the case most likely to occur in the present age, that of libels, which by no unreasonable stretch come under the head of obstructions, it would be unjust that a patriotic legislator, exposed to calumny for his zeal in the pub- lic cause, should be necessarily driven to a troublesome and uncertain process at law, when the offense so manifestly affects the real interests of Parliament and the nation. The application of this principle must of course require a discreet temper, which was not, perhaps, always obsen^ed in former times, especially in the reign of William HI. Instances, at least, of punishment for breach of privilege by personal reflections, are nev- er so common as in the Journals of that tur- bulent period. The most usual mode, however, of in- curring the animadversion of the , _ o or for orfeM- House was by molestations in es uninst )-egard to property. It was the ''^^ House, most ancient privilege of the Commons to be free from all legal process during the term of the session, and for forty days be- fore and after, except on charges of treason. Anne, Geo. I., Geo. II.] FROM HENRY VII. TO GEORGE II. 639 felony, or bveach of the peace. I have else- where mentioned the great case of Ferrers, under Henry VIIL, wherein the House first, as far as we know, exerted the power of committing to prison those who had been concerned in aiTesting one of its members ; and have shown that, after some little inter- mission, this became their recognized and custouiiiry right. Numberless instances oc- cur of its exercise. It was not only abroach of privilege to serve any sort of process upon them, but to put them under the ne- cessity of seeking redress at law for any civil injury. Thus abundant cases are found in the Journals where persons have been committed to prison for entering on the estates of members, carrying away timber, lopping trees, digging coal, fishing in their waters. Their servants, and even their tenants, if the trespass were such as to af- fect the landlord's property, had the same protection.* The grievance of so unpai'al- ieled an immunity must have been notori- ous, since it not only suspended at least the redress of creditors, but enabled rapacious men to establish, in some measure, unjust claims in respect of property, the alleged trespasses being generally founded on some disputed right. An act, however, was passed, rendering the members of both Houses liable to civil suits during the pro- rogation of Parliament. f But they long continued to avenge the private injuries, real or pretended, of their members. On a complaint of breach of privilege by trespass- ing on a fishery (Jan. 25, 1768, they heard evidence on both sides, and determined that no breach of privilege had been committed ; thus indirectly taking on them the decision of a freehold right. A few days after they came to a resolution " that in case of any complaint of a breach of privilege, hereafter to be made by any member of this House, if the House shall adjudge there is no ground for such a complaint, the House will order satisfaction to the person complained of for his costs and expenses incurred by reason of such complaint. "t But little opportunity * The instances are so numerous, that to select a few woulii^perhaps give an inadequate notion of the vast extension which privilege received. In fact, hardly any thing could be done disagreeable to a member, of which he might not inform the House and cause it to be punished. t 12 Will. III., c. 3. t Journals, 11th of Feb. It had been originally was given to try the effect of this resolution, an act having passed in two years afterward, which has altogether taken away the ex- emption from legal process, except as to the immunity from personal aiTest, which still continues to be the privilege of both houses of Parliament.* 3. A more important class of offenses against privilege is of such as affect either house of Parliament collectively. In the reign of Elizabeth we have an instance of one committed for disrespectful words against the Commons. A few others, ei- ther for words spoken or published libels, occur in the reign of Charles I., even before the Long Parliament ; but those of 1641 can have little weight as precedents, and we may say nearly the same of the unjustifia- ble proceedings in 1680. Even since the Revolution, we find too many proofs of en- croaching pride or intemperate passion, to which a numerous assembly is always prone, and which the prevalent doctrine of the House's absolute power in matters of priv- ilege has not contributed much to restrain. The most remarkable may be briefly noticed. The Commons of 1701, wherein a Tory spirit was strongly predominant, by what was deemed its factious delays in voting supplies, and in seconding the measures of the king for the security of Europe, had exasperated all those who saw the nation's safety in vigorous preparations for war, and provoked at last the Lords to the most an- gry resolution which one house of Parlia- ment in a matter not affecting its privileges has ever recorded against the other, f Tiie grand-jury of Kent, and other freeholders proposed that the member making- the complaint should pay the party's costs and expenses ; which was amended, I presume, in consequence of some doubt as to the power of the House to enforce it. * 10 G. III., c. 50. t Resolved, That whatever ill consequences may arise from the so long deferring the supplies for the year's service, are to be attributed to the fatal counsel of putting off the meetingof a Parliament so long, and to unnecessary delays of the House of Commons. — Lords' Journals, 23d of June, 1701. The Commons had previously come to a vote, that all the ill consequences which may at this time at- tend the delay of the supplies granted by the Commons for the preserving the public peace, and maintaining the balance of Europe, are to be im- puted to those who, to procure an indemnity for their own enormous crimes, have used their utmost endeavors to make a breach between the two Houses. — Commons' Journals, 20th of June. 9 640 CONSTITUTIONAL HISTORY OF ENGLAND [Chap. XVL Kentish °^ county, presented accordingly peiiticm a petition on the 8th of May, 1701, imploring them to turn their loyal addresses into bills of supply (the only phrase in the whole petition that could be construed into disrespect), and to enable his majesty to assist his allies before it should be too late. The Tory faction was wrought to fury by this honest remonstrance. They voted that the petition was scandalous, in- solent, and seditious, tending to destroy the constitution of Parliament, and to subvert the established government of this realm ; and ordered that Mr. Colepepper, who had been most forward in presenting the peti- tion, and all others conceraed in it, should be taken into custody of the sergeant.* Though no attempt was made on this occa- sion to call the authority of the House into question by habeas corpus op other legal rerqedy, it was discussed in pamphlets and in general conversation, with little advantage to a power so arbitrary, and so evidently abused in the immediate instance.! * Journals, 8th of May. Pari. Hist., v., 1250. Ralph, 947. This historian, who generally affects to take the popular side, inveighs against this peti- tion, because the Tories had a majority in the Commons. His partiality, arising out of a dislike to the king, is very manifest throughout the second volume. He is forced to admit afterward that the House disgusted the people by their votes on this occasion. — P. 976. [Colepepper having escaped from the custody of the sergeant, the House of Commons addressed the king to cause him to be apprehended ; upon which he surrendered himself. In the next Parliament, which met 30th of Dec, 1701, he had been a candidate for Maidstone, and another being returned, petitioned the House, who, having resolved first in favor of the opposite party, proceeded to vote Colepepper giiilty of "scandal- ous, villanous, and groundless reflections upon the late House of Commons ; and having committed him to Newgate, directed the attorney-general to prosecute him for the said offenses. — ParL Hist., v., 1339. Ralph, 1015. Colepepper gave way to this crushing pressure ; and having not long after- ward (Pari. Hist., vi., 95) petitioned the House, and acknowledged himself at the bar sorry for the scandalous and seditious practices by him acted against the honor and privileges of that House, Sec, they addressed the queen to stop proceedings against him. But a resolution was passed, 16th of Feb., 1702, at the same time with others direct- ed against Colepepper, That it is the undoubted right of the people of England to petition or address the kin;;, for the calling, sitting, or dissolving of Parliaments, or for the redressing of grievances. — Pari. Hist., v., 1340.— 1845.] t History of the Kentish Petition. Somers Tracts, xi., 212. Legion's Paper. Id., 264. Vin- A very few years after this high exercise of authority, it was called forth in another dication of the Rights of the Commons (either by Harley or Sir Humphrey Mackworth). Id., 276. This contains, in many respects, constitutional prin- ciples ; but the author holds very strong language about the right of petitioning. After quoting the statute of Charles II. against tumults on pretense of presenting petitions, he says : " By this statute it may be observed, that not only the number of persons is restrained, but the occasion, also, for which they may petition ; which is for the altera- tion of matters established in Church or State, for want whereof some inconvenience may arise to that county from which the petition shall be brought ; for it is plain, by the express words and meaning of that statute, that the grievance or mat- ter of the petition must arise in the same county as the petition itself. They may, indeed, petition the king for a Parliament to redress their griev- ances ; and they may petition that Parliament to make one law that is advantageous, and repeal another that is prejudicial to the trade or interest of that county ; but they have no power by this statute, nor by the constitution of the English gov- ernment, to direct the Parliament in the general proceedings concerning the whole kingdom ; for the law declares that a general consultation of all the wise representatives of Parliament is more for the safety of England than the hasty advice of a number of petitioners of a private county, of a grand-jury, or of a few justices of the peace, who seldom have a true state of the case represented to them."— P. 313. These are certainly what must appear in the present day very strange limitations of the sub- ject's right to petition either house of ParUament But it is really true that such a right was not gen- erally recognized, nor frequently exercised, in so large an extent as is now held unquestionable. We may search whole volumes of the Joamals, while the most animating topics were in discussion, without finding a single instance of such an inter- position of the constituent with the representative body. In this particular case of the Kentish peti- rion. the words in the resolution, that it tended to destroy the constitution of Parliament and subvert the established government, could be founded on no pretense but its unusual interference with the counsels of the Legislature. With this exception. I am not aware (stating this, however, with some diffidence) of any merely polirical petition before the Septennial Bill in 1717, against which several were presented from corporate towns, one of which was rejected on account of language that the House thought indecent ; and as to these it may be observed, that towns returning members to Parliament had a particular concern in the measure before the House. They relate, however, no doubt, to general policy, and seem to establish a popular principle which stood on little authoritj'. I do not, of course, include the petitions to the Long Parlia- ment in 1640, nor one addressed to the Couvention in 1689, from the inhabitants of London and West- minster, pressing their declaration of William and Anne, Geo. I., Geo. II.] FROM HENRY VII. TO GEORGE II. 641 Dispute with case, still more remarkable and Lordsabout „ jggg warrantable. The Aylesbury election. House of Commons had an un- Mary ; both in times too critical to furnish regular precedents. [It may be mentioned, however, that, a few months after the Revolution, the city of London added to a petition to have tlieir ancient right of choosing their sheriflTs restored to them, a prayer tliat the king might be enabled to make use of the service of all his Protestant subjects ; that is, that the Test might be abrogated. — Pari. Hist., v., 359. It was carried by 174 to 147 that this petition should be read. — 1845.] But as the popu- lar principles of government gi'cw more established, tho right of petitioning on general grounds seems to have been better recognized ; and instances may be found, during the administration of Sir Robert Walpole, though still by no meaiis freeu we consider these statutes, which are not to be looked at as mere insulated texts. 660 COXSTITLTIONAL HISTORY OF ENGLAXD [Chap. XVII. own remote domains ; the want of any such ' aristocracy whom the statute was designed effective counterpoise to the aristocracy as to restrain.* The next reign was the strug- the sovereigns of England possessed in its ; gle of an imprudent, and, as far as his means yeomanry and commercial towns — all these I extended, despotic prince, against the spirit together placed the kings of Scotland in a ' of his subjects. In a Parliament of 1487. situation which neither for their own nor we find almost a solitary instance of a stat- the people's interest they could be expected ute that appears to have been directed to endure. But an impatience of submitting iigainst some illegal proceedings of the gov- to the insolent and encroaching temper of ernment. It is provided that all civil suits their nobles drove James I. (before whose shall be determined by the ordinaiy judges, time no settled scheme of reviving the roy- and not before the king's council.f James al authority seems to have been conceived) III. was killed the next year in attempting and his next two descendants into some to oppose an extensive combination of the courses which, though excused or extenu- rebellious nobility. In the reign of James ated by the difficulties of their position, IV., the influence of the aristocracy shows were rather too precipitate and violent, and itself rather more in legislation; and two redounded at last to their own destruction, peculiarities deserve notice, in which, as it The reign of James IV., from his accession is said, the legislative authority of a Scots in 1468 to his unhappy death at Flodden in Parliament was far higher than that of our 1513, was the first of tolerable prosperity, own. They were not only often consulted the crown having by this time obtained no about peace or war, which in some instan- inconsidei-able strength, and the course of ces was the case in England, but, at least in law being somewhat more established, the sixteenth centuiy, their approbation though the aristocracy were abundantly ca- seems to have been necessary.f This, pable of withstanding any material encroach- though not consonant to our modem no- ment upon their privileges. tions, was certainly no more than the ge- Though subsidies were of course occ:;- -lius of the feudal system and the character sionally demanded, yet from the poverty of a great deliberative council might lead us of the realm, and the extensive domains to expect ; but a more remarkable singular- which the crown retained, they were much less fi-equent than iu England, and thus one principal source of difference was removed ; nor do we read of any opposition in Parlia- ment to what the lords of articles thought fit to propound. Those who disliked the government stood aloof from such meetings, where the sovereign was iu his vigor, and had sometimes crashed a leader of faction by a sudden stroke of power ; confident that they could better frastrate the execution of laws than their enactment, and that ques- tions of right and privilege could never be tried so advantageously as in the field. Hence it is, as I have already observed, that we must not look to the statute-book of Scotland for many limitations of mon- archy. Even in one of James II., which enacts that none of the royal domains shall for the future be alienated, and that the king and his successors shall be sworn to ob- seiTe this law, it may be conjectured that a provision rather derogatory in semblance to the king's dignity was introduced by his own suggestion, as an additional security against the importunate soUcitations of the ity was, that what had been propounded by the lords of articles, and received the ratifi- cation of the three estates, did not require the king's consent to give it complete valid- ity. Such, at least, is said to have been the Scots Constitution in the time of James VI. -. though we may demand very fuU proof of such an anomaly, which the language of their statutes, expressive of the king's en- acting power, by no means leads us to infer.§ The kings of Scotland had always their aula or curia regis, claiming a su- jadiciai preme judicial authority, at least in power, some causes, though it might be difficult to determine its boundaries, or how far they were respected. They had also bailiffs to administer justice in their own domains, and sheriffs in every county for the same pur- pose, wherever grants of regality did not exclude their jurisdiction. These regalities were hereditary and teiritorial ; they ex- tended to the infliction of capital punish- ' Pinkerton, i., 234. t Statutes of Scotland, ii., 177. t Pinkerton, ii., 266. $ Pinkerton, ii., 400. Lain?, iii., 32. Scotland.] FROM HENRY VII. TO GEORGE II. 661 ment; the lord possessing them might re- claim or repledge (as it was called, from the surety he was obliged to give that he would himself do justice) any one of his vassals who was accused before another jurisdic- tion. The barons, who also had cognizance of most capital offenses, and the royal bor- oughs, enjoyed the same privilege. An ap- peal lay, in civil suits, from the baron's court to that of the sheriff or lord of regal- ity, and ultimately to the Parliament, or to a certain number of persons, to whom it del- egated its authority.* This appellant juris- diction of Parliament, as well as that of the king's privy council, which was original, came, by a series of jjrovisions from the year 1425 to 1532, into the hands of a su- preme tribunal thus gradually constituted in Court of its present form, the court of session, session, ■^vas composed of fifteen judges, half of whom, besides the president, were at first churchmen, and soon established an entire subordination of the local courts in all civil suits. But it possessed no competence ia criminal proceedings ; the hereditary ju- risdictions remained unaffected for some ages, though the king's two justiciaries, re- placed afterward by a court of six judges, went their circuits even through those coun- ties wherein charters of regality had been granted. Two remarkable innovations seem to have accompanied, or to have been not far removed in time from, the first formation of the court of session; the discontinuance of juries in civil causes, and the adoption of so many principles from the Roman law as have given the jurisprudence of Scotland a very different character from our own.f In the reign of James V. it might appear probable that by the influence of laws favor- able to public order, better enforced through the council and court of session than before, by the final subjugation of the house of Douglas and of the Earls of Ross in the North, and some slight increase of wealth in the towns, conspiring with the general tendency of the sixteenth centuiy through- out Europe, the feudal spirit would be weak- ened and kept under in Scotland, or display itself only in a P.irliamentary resistance to KeforniaCiaiik * Kaims's Law Tracts. Pinkerton, i., 158, et alibi. Stuart on Public Law of Scotland. t Kairas's Law Tracts. Pinkerton's Hist, of Scotland, i., 117, 237, 388; ii , 313. Robertson, i., 43. Stuart on Law of Scotland. what might become in its turn dangerous, the encroachments of arbitrary power. But immediately afterward a new and unexpect- ed impulse was given ; religious zeal, so blended with the ancient spii-it of aristocrat- ic independence that the two motives are scarcely distinguishable, swept before it in the first whirlwind almost every vestige of the royal sovereignty. The Ro- man Catholic religion was abol- ished with the forms indeed of a Parlia- ment, but of a Parliament not summoned by the crown, and by acts that obtained not its assent. The Scots Church had been immensely rich ; its riches had led, as ev- ery where else, to neglect of duties and dis- soluteness of life ; and these vices had met with their usual punishment in the people's hatred.* The Reformed doctrines gained a more rapid and general ascendency than in England, and were accompanied with a more strenuous and uncompromising enthu- siasm. It is probable that no sovereign re- taining a strong attachment to the ancienf creed would long have been permitted tc- reign ; and Maiy is entitled to every pre- sumption, in the great controversy that be- longs to her name, that can reasonably be founded on this admission ; but, without deviating into that long and intricate discus- sion, it may be given as the probable result of fair inquiry, that to impeach the charac- ters of most of her adversaries would be a far easier task than to exonerate her own.f * Robertson, i., 149. M'Crie's Life of Knox, p. 15. At least one half of the wealth of Scotland wag in the hands of the clergy, chiefly of a few in- dividuals.— Ibid. [Robertson thinks that James V. favored the clergy as a counterpoise to the aris- tocracy, which may account for the eagerness of the latter, generally, in the Reformation. — Hist, of Scotland, i., 68.— 1845.] t I have read a good deal on this celebrated con- troversy ; bat, where so much is disputed, it is not easy to form an opinion on every point. But, upon the whole, I think there are only two hypotheses that can be advanced with any color of reason. The first is, that the murder of Darnley was pro- jected by Bothwell, Maitland, and some others, without the queen's express knowledge, but with a reliance on her passion for the former, which would lead her both to shelter him from punish- ment, and to raise him to her bed ; and that, in both respects, this expectation was fully realized by a criminal connivance at the escape of one whom she must believe to have been concerned in her husband's death, and by a still more infamous marriage with him. This, it appears to me, is a conclusion that may be drawn by reasoning on ad- 662 CONSTITUTIONAL HISTORY OF ENGLAND [Chap. XVII. The history of Scotland from the Refor- mation assumes a character not only unlike that of preceding times, but to which there is no parallel in modem ages. It became a contest, not between the crown and the feudal aristocracy as before, nor between „ the assertors of prerogative and Power of the _ _ . Presiiyterian of privilege, as in England, nor clergy. between the possessors of estab- lished power and those who deemed them- selves oppressed by it, as is the usual source of civil discord, but between the temporal and spiritual authorities, the ci'own and the Church ; that in general supported by the Legislature, this sustained by the voice of the people. Nothing of this kind, at least in any thing like so gi-eat a degree, has oc- cnrred in other Protestant countries ; the Anglican Church being, in its original con- stitution, bound up with the state as one of its component parts, but subordinate to the whole, and the ecclesiastical order in the kingdoms and commonwealths of the Con- tinent being either destitute of temporal au- mitted facts, according to the common rales of pre- sumptive evidence. The second supposition is, that she had given a previous consent to the as- sassination. This is rendered probable by several circumstances, and especially by the famous let- ters and sonnets, the genuineness of which has been so warmly disputed. I must confess that they seem to me authentic, and that Mr. Laing's disser- tation on the murder of Damley has rendered Ma- ry's innocence, even as to participation in that crime, an untenable proposition. No one of any weight, I believe, has asserted it since his time, except Dr. Lingard, who manages the evidence with his nsual adroitness, but by admitting the general authenticity of the letters, qualified by a mere conjecture of interpolation, has given np what his predecessors deemed the very key of the citadel. I shall dismiss a subject so foreign to my pur- pose with remarking a fallacy which affects almost the whole argument of Mary's most strenuous ad- vocates. They seem to fancy that, if the Earls of Murray and Morton, and Secretary Maitland of Lethington, can be proved to have been concerned in Damley's murder, the queen herself is at once absolved. But it is generally agreed that Mait- land was one of those who conspired with Both- well for this purpose ; and Morton, if he were not absolutely consenting, was by bis own acknowl- edgment at his execution apprised of the conspir- acy. With respect to Murray, indeed, there is not a shadow of evidence, nor had he any probable motive to second Bothwell's schemes ; but, even if his participation were presumed, it would not alter in the slightest degree the proofs as to the queen. thority, or at least subject to the civil mag- istrate's supremacy. Knox, the founder of the Scots Reforma- tion, and those who concurred Their at- with him, both adhered to the r;eCen« theological system of Calvin and on the staj*. to the scheme of polity he had introduced at Geneva, with such modifications as be- came necessaiy from the greater scale on which it was to be practiced. Each parish had its minister, lay elder, and deacon, who held their kirk-session for spiritual jurisdic- tion and other purposes ; each ecclesiastical province its synod of ministers and delega- ted elders, presided over by a superintend- ent ; but the supreme power resided in the general assembly of the Scots' Church, con- stituted of all ministers of parishes, with an admixture of delegated laymen, to which appeals from inferior judicatories lay, and by whose determinations or canons the whole were bound. The superintendents had such a degree of Episcopal authority as seems implied in their name, but con- currently with the parochial ministers, and in subordination to the general assembly ; the number of these was designed to be ten, but only five were appointed.* This form of Church polity was set up in 1560 ; but, according to the iiregular state of things at that time in Scotland, though fully admitted and acted upon, it had only the authority of the Church, with no confirmation of Par- liament, which seems to have been the first step of the former toward the independency it came to usurp. Meanwhile it was agi'eed that the Roman Catholic prelates, including the regulars, should enjoy two thirds of their revenues, as well as their rank and seats in Parliament, the remaining third be- ing given to the crown, out of which sti- pends should be allotted to the Protestant clergy. Whatever violence may be imput- ed to the authors of the Scots Reformation, this airangement seems to display a mod- eration which we should vainly seek in our * Spottiswood's Church History, 152. M'Crie's Lifeof Knox, ii..6. Life of .MeWUe, i., 143. Rob- ertson's History of Scotland. Cook's History of the Reformation in Scotland. These three mod- em writers leave, apparently, little to require as to this important period of historj- ; the first with an intenseness of sympathy that enhances oar in- terest, though it may not always command our ap- probation; the last two with a cooler and more philosophical impartiality. Scotland.] FROM HENRY VII. TO GEORGE 11. 663 own. The new church was, however, but inadequately provided for ; and perhaps we may attribute some part of her subsequent contumacy and encroachment on the state to the exasperation occasioned by the lat- ter's pareiinony, or rather rapaciousness, in the distribution of ecclesiastical estates.* It was doubtless intended by the planners of a Presbyterian model, that the bishoprics should be extinguished by the death of the possessors, and their revenues be converted, partly to the maintenance of the clergy, partly to other public interests ; but it suit- ed better the men in power to keep up the old appellations for their own benefit. As the Catholic prelates died away, they were replaced by Protestant ministers, on private compacts to alienate the principal part of the revenues lo those through whom they were appointed. After some hesitation, a Convention of the Church, in 1572, agreed to recognize these bishops until the king's majority and a final settlement by the Leg- islature, and to permit them a certain por- tion of jurisdiction, though not greater than that of the superintendent, and equally sub- ordinate to the general assembly. They were not consecrated ; nor would the slight- est distinction of order have been endured by the Church. Yet even this moderated episcopacy gave offense to ardent men, led Andrew by Andrew Melville, the second Melville, name to Knox in the ecclesiastical history of Scotland ; and, notwithstanding their engagement to leave things as they were till the determination of Parliament, the General Assemblj' soon began to restrain the bishops by their own authority, and finally to enjoin them, under pain of excom- munication, to lay down an office which they voted to be destitute of warrant from the Word of God, and injurious to the Church. Some of the bishops submitted to this decree ; others, as might be expect- ed, stood out in defense of their dignity, and were supported both by the king and by all who conceived that the supreme power of Scotland, in establishing and endowing the Church, had not constituted a society inde- pendent of the Commonwealth. A series • M'Crie's Life of Knox, ii., 197, et alibi. Cook, iii., 30S. Aocoi-ding to Robertson, i., 291, the whole revenue of the Protestant Church, at least in Mary's rei^, was about 24,000 pounds Scots, which seems almost incredible. of acts in 1584, at a time when the court had obtained a temporary ascendant, seem- ed to restore the episcopal government in almost its pristine luster. But the popular voice was loud against Episcopacy ; the prelates were discredited by their simoniac- al alienations of Church revenues, and by their connection with the court ; the king was tempted to annex most of their lands to the crown by an act of Parliament in 1587 ; Adamson, archbishop of St. An- drew's, who had led the Episcopal party, was driven to a humiliating retractation be- fore the General Assembly ; and, in 1592, the sanction of the Legislature was for the first time obtained to the whole scheme of Presbyterian polity, and the laws of 1584 were for the most part abrogated. The school of Knox, if so we may call the early Piesbyterian ministers of Scotland, was full of men breathing their master's spirit ; acute in disputation, eloquent in dis- course, learned beyond what their success- ors have been, and intensely zealous in the cause of reformation. They wielded the people at will ; who, except in the High- lands, threw off almost with unanimity the old religion, and took alarm at the slightest indication of its revival. Their system of local and general assemblies infused, togeth- er with the forms of a republic, its energy and impatience of exterior control, combined with the concentration and unity of purpose that belongs to the most vigorous govern- ment. It must be confessed that the un- settled state of the kingdom, the faults and weakness of the regents Lennox and Mor- ton, the inauspicious beginning of James's personal administration under the sway of unworthy favorites, the real perils of the Reformed Church, gave no slight pretext for the clergy's interference with civil pol- icy. Not merely in their representative assemblies, but in the pulpits, they perpet- ually remonstrated, in no guarded language, against the misgovernment of the court, and even the personal indiscretions of the king. This they pretended to claim as a privilege beyond the restraint of law. Andrew Mel- ville having been summoned before the coun- cil in 1584, to give an account of some sedi- tious language alleged to have been used by him in the pulpit, declined its jurisdiction on the ground that he was only responsible, in the first instance, to his presbyteiy for 664 CONSTITUTIONAL HISTORY OF ENGLAND [Chap. XVII. words so spoken, of which the king and council could not judge without violating the immunities of the Church. Precedents for such an immunity it would not have been difficult to find ; but they must have been sought in the archives of the enemy. It was rather early for the new republic to emulate the despotism she had overthrown. Such, however, is the uniformity with which the same passions operate on bodies of men in similar circumstances ; and so greedily do those, whose birth has placed them far beneath the possession of power, intoxicate themselves with its unaccustomed enjoy- iTients. It has been urged in defense of Melville, that he only denied the compe- tence of a secular tribunal in the first in- stance ; and that, after the ecclesiastical fo- rum had pronounced on the spiritual offense, it was not disputed that the civil magisti-ate might vindicate his own authority.* But not to mention that Melville's claim, as I understand it, was to be judged by his pres- bytery in the first instance, and ultimately by the General Assembly, from which, ac- cording to the Presbyterian theory, no ap- peal lay to a civil court, it is manifest that the government would have come to a very disadvantageous conflict with a man to whose defense the ecclesiastical judicature had al- ready pledged itself; for in the temper of those times it was easy to foresee the de- termination of a synod or pi-esbytery. James, however, and his counselors were Success of not so feeble as to endure this resTraimng" Open renewal of those extrava- them. gant pretensions which Rome had taught her priesthood to assert. Melville fled to England ; and a Parliament that met the same year sustained the supremacy of the civil power with that violence and dan- gerous latitude of expression so frequent in the Scots statute-book. It was made treason to decline the jurisdiction of the king or council in any matter, to seek the diminution of the power of any of the three estates of Parliament, which struck at all tliat had been done against Episcopacy, to utter, or to conceal, when heard from others in sermons or familiar discourse, any false * M'Crie's Life of MelviUe, i., 287, 296. It is impossible to think veithout respect of tliis most powerful writer, before whom there are few living controversialists that would not tremble ; but his Presbyterian Hildebrandism is a little remarkable in this age. or slanderous speeches to the reproach of the king, his council, or their proceedings, or to the dishonor of his parents and pro- genitors, or to meddle in the affairs of state. It was forbidden to treat or consult on any matter of state, civil or ecclesiastical, with- out the king's express command, thus ren- dering the General Assembly for its chief purposes, if not its existence, altogether de- pendent on the crown. Such laws not only annihilated the pretended immunities of the Church, but went very far to set up that tyranny which the Stuarts afterwai-d ex- ercised in Scotland till their expulsion. These were in part repealed, so far as af- fected the Church, in 1592 ; but the crown retained the exclusive right of convening its ! General Assembly, to which the Presby- terian hierarchy still gives but an evasive and reluctant obedience.* These bold demagogues were not long in availing themselves of the advantages which they had obtained in the Parliament of 1592, and through the troubled state of the realm. They began again to inter- meddle with public affairs, the administra- tion of which was sufficiently open to cen- sure. This license brought on a new crisis in 1596. Black, one of the ministers of St. Andrew's, inveighing against the gov- ernment from the pulpit, painted the king and queen, as well as their council, in the darkest colors, as dissembling enemies to religion. James, incensed at this attack, caused him to be summoned before the privy council. The clergy decided to make common cause with the accused. The council of the Church, a standing commit- tee lately appointed by the General As- sembly, enjoined Black to decline the juris- diction. The king by proclamation directed the members of this council to retire to their several parishes. They resolved, in- stead of submitting, that since they were convened by the warrant of Christ, in a most needful and dangerous time, to see unto the good of the Church, they should obey God rather than man. The king of- fered to stop the proceedings, if they would but declare that they did not decline the civil jurisdiction absolutely, but only in the particular case, as being one of slander, and, consequently, of ecclesiastical competence ; * M'Crie's Life of Melville. Bobertson. Spot- tiswood. Scotland.! FROM HENRY VII. TO GEORGE 11. 665 for Blctck bad asserted before the council that speeches delivered in the pulpits, al- though alleged to be treasonable, could not be judged by the king until the Church had fii-st taken cognizance thereof. But these ecclesiastics, in the full spirit of the thir- teenth century, determined by a majority not to recede from their plea. Their con- test with the court soon excited the popu- lace of Edinburgh, and gave rise to a tu- mult, which, whether dangerous or not to the king, was what no government could pass over without utter loss of authority. It was in Church assemblies alone that .Tames found opposition. His Parliament, as had invariably been the case in Scotland, went readily into all that was proposed to them ; nor can we doubt that the gentiy must for the most part have revolted from these insolent usurpations of the ecclesias- tical order. It was ordained in Parliament that eveiy minister should declare his sub- mission to the king's jurisdiction in all mat- ters civil and criminal ; that no ecclesias- tical judicatory should meet without the king's consent, and that a magistrate might commit to prison any minister reflecting in his seiTDons on the Iving's conduct. He had next recourse to an instrument of power more successful frequently than intimida- tion, and generally successful in conjunction with it ; gaining over the members of the General Assembly, some by promises, some by exciting jealousies, till they suiTender- ed no small portion of what had passed for the privileges of the Church. The crown obtained by their concession, which then seemed almost necessary to confirm what the Legislature had enacted, the right of convoking assemblies, and of nominating Establish ministers in the principal towns, ment of James followed up this victory Episcopacy. ^ ^j^jjj ^^^^ important blow. It was enacted that fifty-one ministers, on being nominated by the king to titular bish- oprics and other prelacies, might sit in Par- liament as representatives of the Church. This seemed justly alarming to the op- posite party ; nor could the General As- sembly be brought to acquiesce without such very considerable resti'ictions upon these sus])icious commissioners, by which name they prevailed to have them called, as might in some measure afford security against the revival of that Episcopal domi- nation, toward which the endeavors of the crown were plainly directed. But the king paid little regard to these regulations ; and thus the name and Parliamentary station of bishops, though without their spiritual functions, were restored in Scotland after only six years from their abolition.* A king like James, not less conceited of his wisdom than full of the dignity of his station, could not avoid contracting that in- superable avei'sion to the Scots presbytery, which he expressed in his Basilicon Doron before his accession to the English throne, and more vehemently on all occasions after- ward. He found a very different race of churchmen, well trained in the supple school of courtlj'' conformity, and emulous flatterers both of his power and his wisdom. The ministers of Edinburgh had been used to pray that God would turn his heart : Whitgift, at the conference of Hampton Court, falling on his knees, exclaimed, that he doubted not his majesty spoke by the special grace of God. It was impossible that he should not redouble his endeavors to introduce so convenient a system of ec- clesiastical government into his native king- dom. He began, accordingly, to prevent the meetings of the General Assembly by continued prorogations. Some hardy Pres- byterians ventui'ed to assemble by their own authority, which the lawyers construed in- to treason. The bishops were restored by Parliament in 1606 to a part of their reve- nues, the act of annexing these to the crown being repealed. They were appoint- ed by an ecclesiastical convention, more sub- servient to the crown than formerly, to be perpetual moderators of provincial synods. The clergy still gave way with reluctance ; * Spottiswood. Robertson. M'Crie. [In the 55th canon, passed by the Convocation at Loudon in 1603, the clergy are directed to bid the people to "pray for Christ's holy Catholic Church, that is, for the whole congregation of Christian people dis- persed throughout the whole world, and especially for the churches of England, Scotland, and Ire- land." A learned writer reckons this among the canons, the observance of which is impossible. — Cardwell's Synodalia, preface, p. xxviii. By this singular word he of coarse means that it ought not to be done ; and, in fact, I never heard the Church of Scotland so distinguished, except once, by a Master of the Temple (Rennell). But it has evi- dently escaped Br. Cardwell's refoUection, that the Church of Scotland was, properly speaking, as much Presbyterian in 1603 as at present. — 1845.] 666 CONSTITUTIONAL HISTORY OF ENGLAND [Chap. XVU. but the crown had an irresistible ascendency in Parliament, and in 1610 the Episcopal system was thoroughly established. The powers of oi'dination, as well as jurisdiction, were solely vested in the prelates ; a court of high commission was created on the En- glish model ; and, though the General As- sembly of the Church still continued, it was merely as a shadow, and almost a mockery, of its original importance. The bishops now repaired to England for conse- cration, a ceremony deemed essential in the new school that now predominated in the Anglican Church, and this gave a final blow to the polity in which the Scottish Reformation had been founded.* With far more questionable prudence, James, some years afterward, forced upon the people of Scotland what were called the five arti- cles of Perth, reluctantly adopted by a Gen- eral Assembly held there in 1617. These were matters of ceremony, such as the posture of kneeling in the eucharist, the right of confirmation, and the observance of certain holydnys ; but enough to alarm a nation fanatically abhon-ent of every ap- proximation to the Roman worship, and already incensed by what they deemed the corruption and degradation of their Church.f That church, if indeed it preserved its identity, was wholly changed in character, and became as much distinguished in its Episcopal form by servility and corruption as during its Presbyterian democracy by faction and turbulence. The bishops at its head, many of them abhorred by their own countrymen as apostates and despised for their vices, looked for protection to the sister Church of England in its pride and triumph. It had long been the favorite project of the court, as it naturally was of the Anglican prelates, to assimilate in all respects the two establishments. That of Scotland still wanted one essential charac- teristic, a regular Liturgy. But in prepar- ing what was called the service-book, the English model was not closely followed, the variations having all a tendency toward the Romish worship. It is far more probable that Laud intended these to prepare the way for a similar change in England, than * M'Crie's i-ife of Melville, ii., 378. Laing^s Hist, of Scotland, iii., 20, 35, 42, 62. t Laing, 74, 89. that, as some have surmised, the Scots bishops, from a notion of independence, chose thus to distinguish their own ritual. What were the consequences of this un- happy innovation, attempted with that igno- rance of mankind which kings and priests, when left to their own guidance, usually display, it is here needless to mention. In its ultimate results, it preserved the liberties and overthrew the monarchy of England. In its more immediate effects, it gave rise to the national covenant of Scotland ; a sol- emn pledge of unity and perseverance in a great public cause, long since devised when the Spanish armada threatened the liberties and religion of all Britain, but now directed against the domestic enemies of both. The Episcopal government had no friends, even among those who served the king. To him it was dear by the sincerest conviction, and by its connection with absolute power, still more close and direct than in England. But he had reduced himself to a condition where it was necessary to sacrifice his au- thority in the smaller kingdom, if he would hope to preserve it in the greater ; and in this view he consented, in the Parliament of 1641, to restore the Presbyterian disci- pline of the Scots Church ; an oflTense against his conscience (for such his preju- dices led him to consider it) which he deeply afterward repented, when he dis- covered how absolutely it had failed of sei-ving his interests. In the great struggle with Charles against Episcoj)acy, the encroachments innovations of arbitrary rule, for the sake of "fChiiries i which, in a great measure, he valued that form of Church polity, were not overlook- ed ; and the Parliament of 1641 procured some essential improvements in the civil Constitution of Scotland. Triennial ses- sions of the Legislature, and other salutary reformations, were borrowed from their friends and coadjutors in England ; but what was still more important was the ab- olition of that destructive control over the Legislature which the crown had obtained through the lords of articles. These had doubtless been originally nominated by the several estates in Parliament, solely to ex- pedite the management of business, and re- lieve the entire body from attention to it ; but as early as 1561 we find a practice established, that the spiritual lords should Scotland.] FEOM HENRY Vn. TO GEORGE 11. 667 choose the temporal, generally eight in number, who were to sit on this commit- tee, and conversely, the burgesses still elect- ing their own. To these it became usual to add some of the officers of state ; and in 1617 it was established that eight of them should be on the list. Charles procured, without authority of Parliament, a further innovation in 1633. The bishops chose eight peers, the peers eight bishops, and these appointed sixteen commissioners of shires and boroughs. Thus the whole power was devolved upon the bishops, the slaves and sycophants of the crown. The Parliament itself met only on two dfij-s, the first and last of their pretended session, the one time in order to choose the lords of articles, the other to ratify what they pro- posed.* So monstrous an anomaly could not long subsist in a high-spii'ited nation. This improvident assumption of power by low-born and odious men precipitated their downfall, and made the destruction of the hierarchy appear the necessary guarantee for Parliamentary independence, and the ascendant of the aristocracy ; but lest the court might, in some other form, regain this preliminary or initiative voice in legislation, which the experience of many governments has shown to be the surest method of keep- ing supreme authority in their hands, it was enacted in 1641 that each estate might choose lords of articles or not, at its discre- tion ; but that all propositions should in the first instance be submitted to the whole Parliament, by whom such only as should be thought fitting might be referred to tlie committee of articles for consideration. This Parliament, however, neglected to Arbitrary abolish One of the most odious government, engines that tyranny ever de- vised against public virtue, the Scots law of ti'eason. It had been enacted by a stat- ute of James I. in 1424, that all leasing- makers, and tellers of what might engender discord between the king and his people, should forfeit life and goods. f This act was renewed under .Tames II., and con- firmed in 1540. t It was aimed at the fac- tious aristocracy, who perpetually excited the people by invidious reproaches against * Wight, 69, et post. t Statutes of Scotland, vol. ii., p. 8. Pinkerton, i., 11.5. Laing, iii., 117. i Statutes of Scotland, p. 360. the king's administration. But in 1584, a new antagonist to the crown having appeared in the Presbyterian pulpits, it was determ- ined to silence opposition by giving the stat- ute of leasing-making, as it was denomina- ted, a more sweeping operation. Its penal- ties were accordingly extended to such as should " utter untrue or slanderous speech- es, to the disdain, rejjroach, and contempt of his highness, his parents and progenitors, or should meddle in the affairs of his high- ness, or his estate." The " hearers and not reporters thereof" were subjected to the same punishment. It may be remarked that these Scots statutes are woi'ded with a latitude never found in England, even in the worst times of Henry VIII. Lord Balme- rino, who had opposed the court in the Parliament of 1633, retained in his posses- sion a copy of an apology intended to have been presented by himself and other peers in their exculpation, but from which they had desisted, in apprehension of the king's displeasure. This was obtained clandes- tinely, and in breach of confidence, by some of his enemies, and he was indicted on the statute of leasing-making, as having con- cealed a slander against his majesty's gov- ernment. A jury was returned with gross partiality ; yet so outrageous was the at- tempted violation of justice, that Balmerino was only convicted by a majority of eight against seven ; for in Scots juries a simple majority was sufficient, as it is still in all cases except treason. It was not thought expedient to carry this sentence into execu- tion ; but the kingdom could never pardon its government so infamous a stretcli of power.* The statute itself, however, seems not to have shared the same odium : we do not find any eflTort made for its repeal ; and the ruling party in 1641, unfortunately, did not scruple to make use of its sanguinary provisions against their own adversaries.! The conviction of Balmerino is hardly more repugnant to justice than some other cases in the long reign of James VI. Eight years after the execution of the Earl of Gowrie and his brother, one Sprot, a nota- i-y, having indiscreetly mentioned that he was in possession of letters, written by a person since dead, which evinced his par- ticipation in that mysterious conspiracy, was * Laing, ibid. t Arnot's Criminal Trials, p. 122. 668 CONSTITUTIONAL HISTORY OF ENGLAND [Chap. XVII. put to death for concealing them.* Thora- cis Ross suffered, in 1618, the punishment of treason for publishing at Oxford a blas- phemous libel, as the indictment calls it, against the Scots nation. f I know not what he could have said worse than what their sentence against him enabled others to say, that, amid a great vaunt of Christianity and civilization, they took away men's lives by such statutes, and such constructions of them, as could only be paralleled in the an- nals of the worst tyrants. By an act of 1584, the privy council were empowered to examine an accused party on oath ; and if he declined to answer any question, it was held denial of their jurisdiction, and amount- ed to a conviction of treason. This was ex- perienced by two Jesuits, Crighton and Ogilvy, in 1610 and 1615, the latter of whom was executed. t One of the statutes upon which he was indicted contained the singu- lar absurdity of " annulling and rescinding every thing done, or hereafter to be done, in prejudice of the royal prerogative, in any time by-gone or to come." It was perhaps impossible that Scotland should remain indifferent in the great quarrel of the sister kingdom ; but having set her heart upon two things, incompatible in themselves from the outset, according to the circumstances of England, and both of them ultimately impracticable, Civil war. * The Gowrie conspiracy is well known to be one of the most difficult problems in historj-. Ar- not has given a very good account of it, p. 20, and sliown its truth, which could not reasonably be questioned, whatever motive we may assign for it. He has laid stress on Logan's letters, which appear to have been unaccountably slighted by some writ- ers. I have long had a suspicion, founded on these letters, that the Earl of Bothwell, a daring man of desperate fortunes, was in some manner concerned in the plot, of which the Earl of Gowrie and his brother were the instruments. t Amot s Criminal Trials, p. 70. t Amot, p. 67, 329 ; State Trials, ii., 884. The prisoner was told that he was not charged for say- ing mass, nor for seducing the people to popery, nor for any thing that concerned his conscience, but for declining the king's authority, and main- taining trea.sonable opinions, as the statutes libeled on made it treason not to answer the king or his council in any matter which should be demanded. It was one of the most monstrous iniquities of a monstrous jurisprudence, the Scots criminal law, to debar a prisoner from any defense inconsistent with the indictment ; that is, he might deny a fact, but was not permitted to assert that, being true, it did not warrant the conclusion of guilt. — Amot, 354. the continuance of Charles on the throne and the establishment of a Presbyterian Church, she fell into a long course of disas- ter and ignominy, till she held the name of a free Constitution at the will of a conquer- or. Of the three most conspicuous among her nobility in this period, each died by the hand of the executioner ; but the resem- blance is in nothing besides; and the charac- ters of Hamilton, Montrose, and Argj'le are not less contrasted than the factions of which they were the leaders. Humijled and bro- ken down, the people looked to the re-es- tablishment of Charles II. on the throne of his fathers, though brought about by the sternest minister of Cromwell's tyranny, not only as the augury of prosperous days, but as the obliteration of public dishonor. They were miserably deceived in every hope. Thirty infamous years Tyraunical consummated the misfortunes ff^J^°™*^' and degradation of Scotland. Her U- factions have always been more sanguinary, her rulers more oppressive, her sense of justice and humanity less active, or at least shown less in public acts, than can be charged against England. The Parliament of 1 661, influenced by wicked statesmen and law- yers, left far behind the Royalist Commons of London, and rescinded as null the entire acts of 1641, on the absurd pretext that the late king had passed them through force. The Scots Constitution fell back at once to a state little better than despotism. The lords of articles were revived, according to the same form of election as under Charles I. A few years afterward the Duke of Lauderdale obtained the consent of Parlia- ment to an act, that whatever the king and council should order respecting all eccle- siastical matters, meetings, and persons, should have the force of law. A militia, or rather army, of 22,000 men was established, to march wherever the council should ap- point, and the honor and safety of the king require. Fines to the amount of 6£85,000, an enormous sum in that kingdom, were imposed on the Covenanters. The Earl of Argj-le brought to the scaffold by an out- rageous sentence, his son sentenced to lose his life on such a construction of the ancient law against leasing-making as no man en- gaged in political affairs could be sure to es- cape, the worst system of constitutionfil laws administered by the worst men, left no Scotland.] FROM HEXKY VII. TO GEORGE II. 669 alternative but implicit obedience or desper- ate rebellion. The Presbj^terian Church of course fell by the act which annulled the Parliament wherein it had been established. Ej)isco- pacy revived, but not as it had once existed in Scotland; the jurisdiction of the bishops became unlimited ; the General Assemblies, so dear to the people, were laid aside.* The new prelates were odious as apostates, and soon gained a still more indelible title to popular hatred as persecutors. Three hun- dred and fifty of the Presbyterian clergy (more than one third of the whole number) were ejected from their benefices. f Then began the preaching in conventicles, and the secession of the excited and exasperated multitude from the churches ; and then ensued the ecclesiastical commission with its inquisitorial vigilance, its fines and cor- poral penalties, and the free quarters of the soldiery, with all that can be implied in that word. Then came the fruitless insurrection, and the fanatical assurance of success, and the certain discomfiture by a disciplined force, and tlie consternation of defeat, and the unbounded cruelties of the conqueror ; and this went on with per- petual aggravation, or very rare intervals, through the reign of Charles, the tyran- ny of Lauderdale far exceeding that of Middleton, as his own fell short of the Duke of York's. No part, I believe, of modern history for so long a period can be compared for the wickedness of government to the Scots administration of this reign. In proportion as the laws grew moi-e rigor- ous against the Presbyterian worship, its followers evinced more steadiness ; driven from theu" conventicles, they resorted some- times by night to the fields, the woods, the mountains ; and as the troops were contin- ually employed to disperse thera, they came with arms which they were often obliged to use ; and thus the hour, the place, the cir- cumstance, deepened every impression, and * Laing, iv., 20. Kirkton, p. 141. "Whoso shall compare," he says, " this set of bishops with the old bishops, established in the year 1612, shall find that these were but a sort of pigmies com- pared with our new bishops." t Laing, iv., 32. Kirkton says 300.— P. 149. These were what were called the young ministers, those who had entered the Church since 1649. They might have kept their cures by acknowledg- ing the authority of bishops. bound up their faith with indissoluble asso- ciations. The same causes produced a dark fanaticism, which believed the revenge of its own wrongs to be the execution of di- vine justice ; and, as this acquired new strength by every successive aggravation of tyranny, it is literally possible that a contin- uance of the Stuart government might have led to something veiy like an extermination of the people in the western counties of Scotland. In the year 1676 letters of inter- communing were published ; a writ forbid- ding all persons to hold intercourse with the parties put under its ban, or to furnish them with any necessary of life, on pain of being reputed guilty of the same crime. But sev- en years afterward, when the Cameronian rebellion had assumed a dangei-ous charac- ter, a proclamation was issued against all who had ever harbored or communed with rebels ; courts were appointed to be held for their trial as traitors, which wei-e to con- tinue for the next three years. Those who accepted the Test, a declaration of passive obedience repugnant to the conscience of the Presbyterians, and imposed for that reason in 1681, were excused from these penalties ; and in this way they were eluded. The enormities of this detestable govern- ment are far too numerous, even in species, to be enumerated in this slight sketch ; and, of course, most instances of cruelty have not been recorded. The privy council was accustomed to extort confessions by torture ; that grim divan of bishops, lawyers, and peers sucking in the groans of each undaunt- ed enthusiast, in hope that some imperfect avowal might lead to the sacrifice of other victims, or at least wairant the execution of the present. It is said that the Duke of York, whose conduct in Scotland tends to efface those sentiments of pity and respect which other parts of his life might excite, used to assist himself on these occasions.* One Mitchell, having been induced, by a promise that his life should be spared, to confess an attempt to assassinate Sharp the primate, was brought to trial some years afterward, when four lords of the council deposed on oath that no such assurance had been given him, and Sharp insisted upon his execution. The vengeance ultimately tak- en on this infamous apostate and persecutor, though doubtless in violation of what is just- ' Laing, iv., 116. C70 CONSTITUTIONAL HISTORY OF ENGLAND [Chap. XVII. ly reckoned a universal rule of morality, ought at least not to weaken our abhorrence of the man himself. The Test above mentioned was imposed by Parliament in 1681, and contained, among other things, an engagement never to at- tempt any alteration of government in Church or State. The Earl of Argyle, son of him who had perished by an unjust sentence, and himself once before attainted by another, though at that time restored by the king, was still destined to illustrate the house of Campbell by a second martyrdom. He refused to subscribe the Test without the reasonable explanation that he would not bind himself from attempting, in his sta- tion, any improvement in Church or State. This exposed him to an accusation of leasing- making (the old mystery of iniquity in Scots law) and of ti'eason. He was found guilty through the astonishing audacity of the crown lawyers, and servility of the judges and jury. It is not, perhaps, certain that his immediate execution would have ensued ; but no man ever trusted securely to the mercies of the Stuarts, and Argyle escaped in disguise by the aid of his daughter-in- law. The council proposed that this lady should be publicly whipped ; but there was an excess of atrocity in the Scots on the court side which no Englishman could reach, and the Duke of York felt as a gentleman upon such a suggestion.* The Earl of Argyle was brought to the scaffold a few years afterward, on this old sentence, but after his unfortunate rebellion, which, of course, would have legally justified his exe- cution. The Cameronians, a party rendered wild and fanatical through intolerable oppression, published a declaration, wherein, after re- nouncing their allegiance to Charles, and ex- pressing their abhorrence of murder on the score of religion, they announced their de- termination of retaliating, according to their power, on such piivy counselors, officers in command, or others, as should continue to seek their blood. The fate of Sharp was thus before the eyes of all who emulated his crimes ; and in terror the council or- dered, that whoever refused to disown this declaration on oath, should be put to death in the presence of two witnesses. Everj- officer, every soldier, was thus inti-usted * Life of James II., i., 710. with the privilege of massacre ; the un- armed, the women and children, fell indis- ciiminately by the sword ; and besides the distinct testimonies that remain of atrocious cruelty, there exists in that kingdom a deep traditional horror, the record, as it were, of that confused mass of crime and misery which has left no other memorial.* A Parliament summoned by James on his accession, with an intimation Rgjgn of from the throne that they were Ja^e* assembled not only to express their own duty, but to set an example of compliance to England, gave, without the least opposi- tion, the required proofs of loyalty. They acknowledged the king's absolute power, de- clared their abhorrence of any principle de- rogatory to it, professed an unreserved obe- dience in all cases, bestowed a large reve- nue for life. They enhanced the penalties against sectaries ; a refusal to give evidence against traitors or other delinquents was made equivalent to a conviction of the same offense ; it was capital to preach even in houses, or to hear preachers in the fields. The persecution raged with still greater fuiy in the first part of this reign ; but the same repugnance of the Episcopal i)arty to the king's schemes for his own religion, which led to his remarkable change of pol- icy in England, produced similar effects in Scotland. He had attempted to obtain from Parliament a repeal of the penal laws and the Test ; but, though an extreme servili- ty or a general intimidation made the nobil- ity acquiesce in his propositions, and two of the bishops were gained over, yet the com- missioners of shires and boroughs, who, vot- ing promiscuously in the House, had, when united, a majority over the peers, so firmly resisted every encroachment of popery, that it was necessary to try other methods than those of Parliamentary enactment. After the dissolution the dispensing power was brought into play ; the pri\y council forbade the execution of the laws against the Catholics ; several of that religion were introduced to its board ; the royal boroughs were deprived of their privileges, the king assuming the nomination of their chief mag- istrates, so as to throw the elections wholly into the hands of the crown. A declaration * Cloud of Witnesses, passim. De Foe's Hist, of Church of Scotland. Kirkton. Laing. Scott's notes in Minstrelsy of Scottish Border, &c., &;c. Scotland.] TROM HENRY VII. TO GEORGE U. 671 of indulgence, emanating from the king's ab- solute prerogative, relaxed the severity of the laws against Presbyterian conventicles, and, annulling the Oath of Supremacy and the Test of 1681, substituted for them an oath of allegiance, acknowledging his power to be unlimited. He promised, at the same time, that " he would use no force nor in- vincible necessity against any man on ac- count of his persuasion, or the Protestant religion, nor would deprive the possessors of lands formerly belonging to the Church." A veiy intelligible hint that the Protestant religion was to exist only by this gracious sufferance. The oppressed Presbyterians gained some Reyoiution respite by this indulgence, though hshmen't'of instances of executions under the Presbytery, sanguinary statutes of the late reign are found as late as the beginning of 1688. But the memory of their sufferings was in- delible ; they accepted, but with no grati- tude, the insidious mercy of a tyrant they abhorred. The Scots conspiracy with the Prince of Orange went forward simultane- ously with that of England; it included sev- eral of the council, from personal jealousy, dislike of the king's proceedings as to relig- ion, or anxiety to secure an indemnity they had little deserved in the approaching crisis. The people rose in different parts ; the Scots nobility and gently in London pre- sented an address to the Prince of Orange, requesting him to call a Convention of the es\ai " Degeneracy tivity of the most disgraceful na- of English ture ; and, not as the rough sol- dier of Rome is said to have been subdued by the art and learning of Greece, the Anglo-Norman barons, that had wrested Ireland from the native possessors, fell into their barbarous usages, and emulated the vices of the vanquished. This degeneracy of the English settlers began very soon, and continued to increase for sevei-al ages. They intermarried with the Irish ; they connected themselves with them by the national custom of fostering, which formed an artificial relationship of the strictest na- ture ;f they spoke the Irish language ; they * Leland, 289. t "There were two other customs, proper and peculiar to the Irishrj", which, being the cause of many strong combinations and factious, do tend to the utter ruin of a commonwealth. The one was fostering, the other gossipred ; both which have ever been of greater estimation among this people than with any other nation in the Christian world. Far foftering, I did never hear or read that it was in that use or reputation in any^other couutrj-, bar- barous or civil, as it hath been, and yet is, in Ire- land, where they put away all their children to fosterers ; the potent and rich men selling, the meaner sort buying, the alterage and nursing of their children ; and the reason is, because in the opinion of this people, fostering hath always been UlELAND.] FROM HENRY VII. TO GEORGE II. 683 nflected the Irish dress and manner of wearing the hair ;* they even adopted, in some instances, Irish surnames ; they liar- assed tlieir tenants with every Irish exac- tion and tyranny ; they administered Irish law, if any at all ; they became chieftains rather than peers ; and neither regarded the kinjj's summons to his Parliaments, nor paid any obedience to his judges. f Thus the great family of De Burgh or Burke, in Connaught, fell off almost entiiely from subjection ; nor was that of the Earls of Desmond, a younger branch of the house of Geraldino or Fitzgerald, much less in- dependent of the crown, though by the title it enjoyed, and the palatine franchises gi'anted to it by Edward III. over the coun- ties of Limerick and Kciry, it seemed to keep up more show of English allegiance. The regular constitution of Ireland was, as I have said, as nearly as possible a coun- terpart of that established in this country. The administration was vested in an En- glish justiciary or lord-deputy, assisted by a council of judges and principal officers, mixed with some prelates and barons, but a stronger alliance than blood ; and the foster-chil- dren do love and are beloved of tlicir foster-fathers and their sept more than of their own natural pa- rents and kindred, and do participate of their means more frankly, and do adhere to them in all fortunes with more affection and constancy. The like may be said of gossipred or compatcrnity, which though by the canon law it be a spiritual aCinity, and a juror that was gossip to either of the parties might in former times have been chal- lenged, as not indifferent, by our law, yet there was no nation under the sun that ever made so re- ligious an account of it as the Irish.'' — Davis, 179. * "For that now there is no diversity in array between the English marchers and the Irish ene- mies, and so by color of the English marchers, the Irish enemies do come from day to day into the ['English counties as English marchers, and do rob and kill by the highways, and destroy the common people by lodging upon them in the nights, and also do kill the husbands in the nights, and do take their goods to the Irish men ; wherefore it is ordained and agreed, that no manners man that will be taken for an Englishman shall have no beard above his mouth ; that is to say, that he have no hairs upon his upper lip, so that the said lip be once at least shaven every fortnight, or of equal growth with the nether lip. And if any man be found among the English contrary hereunto, that then it shall be lawful to evei-y man to take thera and their goods as Irish enemies, and to ran- som tiiem as Irish enemies." — Irish Statutes, 2.5 Hen. VI., c. i. t Davis, 152, 182. Lelaud, i., 256, &c. Ware, ii., 58. subordinate to that of England, wherein sat the immediate advisers of the sovereign. The courts of Chancery, King's Bench, Common Pleas, and Exchequei-, were the same in both countries ; but writs of error lay from judgments given in the second of these to the same court in England. For all momentous purposes, as to grant a sub- sidy, or enact a statute, it was as necessary to summon a Parliament in the one island as in the other. An Irish Parlia- parliament nient originally, like an English of ''eland, one, was but a more numerous council, to wliich the more distant as well as the neigh- boring barons were summoned, whose con- sent, though dispensed with in ordinary acts of state, was both the pledge and the condi- tion of their obedience to legislative provi- sions. Not long after 1295, the sherifi" of each county and liberty is directed to return two knights to a Parliament held by Wogan, an active and able deputy.* The date of the admission of burgesses can not be tixed with precision, but it was probably not earlier than the reign of Edward III. They aj)- pear in 1341 ; and the Earl of Destnnnd summoned many deputies from coi'pora- tions to his rebel Convention held at Kil- kenny in the next ycar.f The Commons are mentioned as an essential part of Par- liament in an ordinance of 1359 ; before which time, in the opinion of Lord Coke, "the Conventions in Ireland were not~so much Parliaments as assemblies of great men."t This, as appears, is not strictly correct ; but in substance they were per- haps little else long afterward. The earliest statutes on record are of the year 1310 ; and from that year they are lost till 1429, though we know many Par- liaments to have been held in the mean time, and are acquainted by other means with their provisions. Those of 1310 bear witness to the degeneracy of the English * Leland, 253. [The precise year is not men- tioned, but Wogan became deputy in 1295. Arch- bishop Usher, liowever, (in Collectanea Curiosa, vol. i., p. 36), says that there had been a Parlia- ment as early as 48 Hen, III. (1264). Usher makes a distinction between small and great Parliaments, calling the former rather ^ar/(es. — 1845.] t Cox's Hist, of Ireland, 117, 120. t Id., 125, 129. Leland, 313. [It may be prob- ably thought that the raajores civitatum regalium, whom Desmond summond to Kilkenny, were may- ors rather than representatives. — Usher, ibid. — 1845.] 684 CONSTITUTIONAL HISTOEY OF ENGLAND [Chap. XVIIL lords, and to the laudable zeal of a feeble government for the reformation of their abuses. They begin with an act to restrain gi-eat lords from taking of prises, lodging, and sojourning with the people of the country against their will. " It is agreed and as- sented," the act proceeds, " that no such prises shall be henceforth made without ready payment and agi-eement, and that none shall harbor or sojourn at the house of any other by such malice against the consent of him which is owner of the house to destroy his goods ; and if any shall do the same, such prises, and such manner of de- struction, shall be holden for open robbery, and the king shall have the suit thereof, if others will not, nor dare not sue. It is agreed, also, that none shall keep idle people nor kearn (foot-soldiers) in time of peace to live upon the poor of the country, but that those which will have them shall keep them at their own charges, so that their free ten- ants, nor farmers, nor other tenants be not charged with them." The statute pro- ceeds to restrain great lords or others, ex- cept such as have royal franchises, from giving protections, which they used to com- pel the people to purchase ; and directs that there shall be commissions of assize and jail deliveiy through all the counties of Ireland.* These regulations exhibit a picture of Irish miseries. The barbarous practices of coshering and bonaght, the latter of which was generally known in later times by the name of coyne and livery, had been borrow- ed from those native chieftains whom our modern Hibernians sometimes hold forth as the paternal benefactors of their countiy.f It was the crime of the Geraldines and the De Courcys to have retrograded from the comparative humanity and justice of En- gland, not to have deprived the people of freedom and happiness they had never known. These degenerate English, an epithet by which they are always distin- guished, paid DO regard to the statutes of a Parliament which they had disdained to attend, and which could not render itself feared. We find many similar laws in the * Irish Statotes. f Davis, 174, 189. Leland, 281. Maurice Fitz- Thomas, earl of Desmond, was the first of the En- glish, according to Ware, ii., 76, who imposed the exaction of coyne and livery. fifteenth century, after the interval which I have noticed in the printed records ; and in the intervening period, a Parliament held by Lionel, duke of Clarence, second son of Edward III., at Kilkenny, in 1.367, the most numerous assembly that had ever jnet in Ireland, was prevailed upon to pass a very severe statute against the insubordinate and degenerate colonists. It recites ttat the English of the realm of Ireland were be- come mere Irish in their language, names, apparel, and manner of living ; that they had rejected the English laws, and allied themselves by intermarriage with the Irish. It prohibits, under the penalties of high treason, or at least of foifeiture of lands, all these approximations to the native inhabit- ants, as well as the connections of foster- ing and gossipred. The English are re- strained from permitting the Irish to gi'aze their lands, from presenting them to ben- efices, or receiving them into religious houses, and from entertaining their bards. On the other hand, they are forbidden to make war upon their Irish neighbors with- out the authority of the state : and, to en- force better these provisions, the king's shei-iffs ai-e empowered to enter all fran- chises for the apprehension of felons or traitors.* This statute, like all others passed in Ireland, so far from pretending to _ , , ^ ° Disorderly bind the Irish, regarded them not state of the only as out of the king's allegi- ance, but as perpetually hostile to his gov- ernment. They were generally denomi- nated the Irish enemy. This doubtless was not according to the policy of Henry II., nor of the English government a con- siderable time after his reign. Nor can it be said to be the fact, though from some confusion of times the assertion is often ' Irish Statutes. Davis, 202. Cox. Leland. [The statute of Kilkenny, though Leland, i., 329, says that Edward was obliged to relax it in some particulars, as incapable of being enforced, re- stored the English government for a time, if we may believe Davis, p. 222, so that it did not fall back again till the war of the Roses. About this time Edward III. endeavored to supersede the domestic Legislature by causing the Anglo-Irish to attend his Parliament at Westminster, and suc- ceeded so far that in 1375 not only prelates and peers, but proctors of the clergy, knights, and evea burgesses from nine towns, actually sat there. But this was too much against the temper of the Irish to be repeated.— Leland, i., 327, 363.— 1845.] Ireland.] FROM HENRY VII. TO GEORGE II. 685 made, that the island was not subject, in a general sense, to that prince and to the three next kings of England. The English were settled in every province ; an imper- fect division of counties and administration of justice subsisted ; and even the Irish chieftains, though ruling their septs by the Brehon law, do not appear, in that period, to have refused the acknowledgment of the king's sovereignty ; but compelled to defend their lands against perpetual aggres- sion, they justly renounced all allegiance to a government which could not redeem the original wro/ig of its usurpation by the ben- Theirishre- efits of protection. They became iheV^rliil gradually stronger; they regaiu- ries. ed part of their lost territories ; and after the era of 1315, when Edward Bruce invaded the kingdom with a Scots ar- my, and, though ultimately defeated, threw the government into a disorder from which it never recovered, their progress was so rapid, that in the space of thirty or forty years, the northern provinces, and even part of the southern, were entirely lost to the crown of England.* It is unnecessary, in so brief a sketch, to follow the unprofitable annals of Ireland in the fourteenth and fifteenth centuries. Amid the usual variations of war, the English interests were continually losing ground. Once only Richard II. appeared with a very powerful army, and the prin- ces of Ireland crowded round his throne to offer homage -jf but upon his leaving the kingdom, they returned, of course, to their former independence and hostility. The long civil wars of England in the next cen- tury consummated the ruin of its power over the sister island. The Irish possess- ed all Ulster, and shared Connaught with the degenerate Burkes. The sept of O'Brien held their own district of Tho- mond, now the county of Clare. A consid- erable part of Leinster was occupied by other independent tribes ; while in the south, the Earls of Desmond, lords either by property or territorial jurisdiction of the counties of Keriy and Limerick, and in * Leland, i., 278, 296, 324. Davis, 152, 197. t Leland, 342, The native chieftains who came to Dubhn are said to have been seventy-five in number ; but the insolence of the courtiers, who ridiculed an unusual dress and appearance, dis- gusted them. some measure those of Cork and Water- ford, united the turbulence of English bar- ons with the savage manners of Irish chief- tains, ready to assume either character as best suited their rapacity and ambition, reckless of the king's laws or his com- mands, but not venturing, nor, upon the whole, probably, wishing to cast off the name of his subjects.* The elder branch of their house, the Earls of Kildare, and another illustrious family, the Butlers, earls of Ormond, were apparently more steady in their obedience to the crown ; yet, in the great franchises of the latter, compris- ing the counties of Kilkenny and Tipperary, the king's writ had no course, nor did he exercise any civil or military authority but by the permission of this mighty j^^^^. peer.f Thus, in the reign of confined to Henry VII., when the English p"'*"- authority over Ireland had reached its low- est point, it was, with the exception of a veiy few sea-ports, to all intents confined to the four counties of the English pale, a name not older, perhaps, than the preced- ing century : those of Dublin, Louth, Kil- dare, and Meath, the latter of which at that time included West Meath. But even in these there were extensive marches or frontier disti'icts, the inhabitants of which were hardly distinguishable from the Irish, and paid them a tribute called black-rent, so that the real supremacy of the English laws was not probably established beyond the two first of these counties, from Dublin to Dundalk on the coast, and for about thirty miles inland. J From this time, how- * [It appears by the rates paid to a subsidy granted in 1420, that most of Leinster, with a small part of Muuster, still contributed. — Cox, 152. —1845.] t Davis, 193. t Leland, ii., 822, et post. Davis, 199, 229, 236. Holingshed's Chronicles of Ireland, p. 4. Finglas, a baron of the Exchequer in the reign of Henry VIII., in his Breviate of Ireland, from which Da- vis has taken great part of his materials, says ex- pressly, that, by the disobedience of the Gerald- ines and Butlers, and their Irish connections, " the whole land is now of Irish rule, except the little English pale, within the counties of Dublin and Meath, and Uriel [Louth], which pass not thirtj' or forty miles in compass." He afterward includes Kildare. The English were also expelled from Monster, except the walled towns. The king had no profit out of Ulster but the manor of Carling- ford, nor any in Connaught. This treatise, writ- ten about 1530, is printed in Harm's Hibemica. The proofs that, in this age, the English law and 686 CONSTITUTIONAL HISTORY OF ENGLAND [Chap. XVIII. ever, we are to date its gradual recoveiy. The more steady councils and firmer pre- rogative of the Tudor kings left little chance of escape from their authority either for rebellious peers of English race or the bar- barous chieftains of Ireland. I must pause at this place to observe that we shall hardly find in the foregoing sketch of Irish history, during the period of the Plautagenet dynasty (nor am I conscious of having concealed any thing essential), that systematic oppression and misrule which is every day imputed to the English nation and its government. The policy of our kings appears to have generally been wise and beneficent; but it is duly to be remem- bered that those very limitations of their prerogative which constitute liberty must occasionally obstruct the execution of the best purposes, and that the co-ordinate pow- ers of Parliament, so justly our boast, may readily become the screen of private tyran- ny and inveterate abuse. This incapacity of doing good as well as harm has produced, comparatively speaking, little mischief in Great Britain, where the aristocratical ele- ment of the Constitution is neither so pre- dominant, nor so mucli in opposition to the generid interest, as it may be deemed to have been in Ireland. But it is manifestly absurd to charge the Edwards and Henries, or those to whom their authority was delegated at Dublin, with the crimes they vainly endeav- ored to chastise, much more to erect ei- ther the wild barbarians of the north, the O'Neals and O'Connors, or the degenerate houses of Burke and Fitzgerald, into patriot asserters of their country's welfare. The laws and liberties of England were the best inheritance to which Ireland could attain ; the sovereignty of the English crown her only shield against native or foreign tyran- ny. It was her calamity that these advan- tages were long withheld ; but the blame can never fall upon the goveniment of this island. In the contest between the houses of York and Lancaster, most of the English colony in Ireland had attached themselves to the fortunes of the White Rose ; ihey even espoused the two pretenders, who put in jeopardy the crown of Henry VII., and government veere coufined to the four shires, are abundant. It is even mentioned in a statute, 31 Hen. VIII., c. 2. I thus became, of course, obnoxious to his jealousy, though he was politic enough t- erty by violence or pretext of law, the sud- I den executions on alleged treasons, the • breaches of treaty, sometimes even the j assassinations, by which a despotic policy I went onward in its work of subjugation, they did but play the usual game of barba- rians in opposing craft and perfidy, rather more gross, perhaps, and notorious, to the * Lelasd gives several instances of breach of faith in the govemment A little tract, called a Ireland.] FROM HENRY VII. TO GEORGE 11. 691 yet, if we can put any trust in our own tes- timonies, the gieat families were, by mis- management and dissension, the curse of their vassals. Sir Henry Sidney repre- sents to the queen, in 15G7, the wretched condition of the southern and western coun- ties in the vast territories of the Earls of Ormond, Desmond, and Clanricarde.* "An unmeasurable tract," he says, " is now waste and uninhabited, which of late years w!is well tilled and pastured." " A more pleas- ant nor a more desolate land 1 never saw than from Youghall to Limerick."f " So far hath that policy, or, rather, lack of pol- icy, in keeping dissension among them pre- BrieF^DeclaratioiTof the Government of Ireland, written by Captain Lee, in 1594, and published in Desiderata Curiosa Hibernica, vol. i.. censures the two last deputies (Grey and Fitzwilliams) for their ill usage of the Irish, and unfolds the despot- ic character of the English government. " The cause they (the lords of the north) have to stand upon those terms, and to seek for better assurance, is the harsh practices used against others by those who have been placed in authority to protect men for your majesty's service, which they have great- ly abased in this sort. They have drawn unto thera by protection three or four hundred of the country people, under color to do your majesty gervice, and brought them to a place of meeting, where your garrison soldiers were appointed to be, who have there most dishonorably put them all to the sword ; and this hath been by the consent and practice of the lord-deputy for the time being. If this be a good course to draw those savage peo- ple to the state to do your majesty service, and not rather to enforce them to stand on their guard, I leave to your majesty." — P. 90. He goes on to enumerate more cases of hardship and tyranny ; many being arraigned and convicted of treason on slight evidence ; many assaulted and killed by the sheriffs on commissions of rebellion ; others impris- oned and kept in irons ; among others, a youth, the heir of a great estate. He certainly praises Ty- rone more than, from subsequent events, we should think just, which may be thought to throw some suspicion on his own loyalty ; yet he seems to have been a Protestant, and in 1594 the views of Tyrone were ambiguous, so that Captain Lee may have been deceived. * Sidney Papers, i., 20. [This is in a long re- port to the queen, which contains an interesting view of the state of the counti'y during its transi- tion from Irish to English law. Athenry, he says, had once 300 good householders, and, in his own recollection, twenty, who are reduced to four, and those poor. It had been mixed by the Clanri- cardes. But, " as touching all Leinster and Meath, I dare affirm on my credit unto your majesty, as well for the EngHsh pale, and the justice thereof, it was never in the memory of the oldest man that now liveth in greater quiet and obedience." — 1845.] t Id., 24. vailed, as now, albeit all that are alive would become honest and live in quiet, yet are there not left alive in those two provinces the twentieth person necessary to inhabit the same."* Yet this was but the first scene of calamity. After the rebellion of the last Earl of Uesiriond, the counties of Cork and Kerry, his ample patrimony, were so wasted by war and militaiy executions, and famine and pestilence, that, according to a cotemporary writer, who expresses the truth with hyperbolical energy, " the land itself, which before those wars was popu- lous, well inhabited, and rich in all the good blessings of God, being plenteous of corn, full of cattle, well stored with fruit and sun- dry other good commodities, is now become waste and barren, yielding no fruits, the pastures no cattle, the fields no corn, the air no birds, the seas, though full of fish, yet to them yielding nothing. Finally, ev- ery way the curse of God was so great, and the land so barren both of man and beast, that whosoever did travel from the one end unto the other of all Munster, even from Waterford to the head of Limerick, which is about six-score miles, he should not meet any man, woman, or child, saving in towns and cities, nor yet see any beast but the very wolves, the foxes, and other like ravening beasts. "f The severity of Sir Arthur Grey, at this time deputy, was such that Elizabeth was assured he had left little for her to reign over but ashes and carcasses ; and, though not by any means of too indulgent a nature, she was induced to recall him.J His successor, Sir John * Sidney Papers, i., 29. .Spenser descants on the lawless violence of the superior Irish ; and im- putes, I believe, with much justice, a great part of their crimes to his own brethren, if they might claim so proud a title, the bards : " whomsoever they find to be most licentious of life, most bold and lawless in his doings, most dangerous and des- perate in all parts of disobedience and rebellious disposition, him they set up and glorify in their rhymes, him they praise to the people, and to young men make an example to follow." — P. 394. t Holingshed, 460. t Leland, 287. Spenser's Account of Ireland, p. 430 (vol. viii. of Todd's edition, 1805). Grey is the Arthegal of the Faery Queen, the representative of the virtue of justice in that allegory, attended by Talus with his iron flail, which, indeed, was un- sparingly employed to crush rebellion. Grey's se- verity was signalized in putting to deafli seven hundred Spaniards who had surrendered at dis- cretion in the fort of Smerwick. Though this 692 CONSTITUTIONAL HISTORY OF ENGLAND [Chap. XVIII. Perrott, who held the viceroyalty only from 1584 to 1587, was distinguished for a sense of humanity and justice, together with an active zeal for the enforcement of law. Sheriffs were now appointed for the five counties into which Connaught had some years before been parceled ; and even for Ulster, all of which, except Antrim and Down, had hitherto been undivided, as well as ungoverned.* Yet even this apparently wholesome innovation aggi-avated at first the servitude of the natives, whom the new sheriffs were prone to oppress, f PeiTott, the best of Irish governors, soon fell a sac- rifice to a court intrigue and the queen's jealousy ; and the remainder of her reign was occupied with almost unceasing revolts of the Earl of Tyrone, head of the great sect of O'Neil in Ulster, instigated by Rome and Spain, and endangering, far more than any pi'eceding rebellion, her sovereignty over Ireland. The old English of tSe pale were little more disposed to embrace the Reformed religion, or to acknowledge the despotic principles of a Tudor administration, than the Irish themselves ; and though they did not join the rebellions of those they so much hated, the queen's deputies had sometimes to encounter a more legal resist- ance. A new race of colonists had begun to appear in their train, eager for posses- sions, and for the rewards of the crown, contemptuous of the natives, whether ab- original or of English descent, and, in con- sequence, the objects of their aversion or might be justified by the strict laws of war {Phil- ip not being a declared enemy), it was one of those extremities which justly revolt the common feelings of mankind. The queen is said to have been much displeased at it. Leiand, 283. Spen- ser undertakes the defense of his patron Grey. — State of Ireland, p. 434. Lelaud, 247, 293. An act had passed, 1 1 Eliz., c. 9, for dividing the whole island into shire-ground, appointing sheriffs, justices of the peace, &c., which, however, was not completed till the time of Sir John Perrott. — Holingshed, p. 457. t Leiand, 305. Their conduct provoked an in- surrection both in Connaught and Ulster. Spen- ser, who shows always a bias toward the most rig- orous poUcy, does injustice to Pen-ott. " He did tread down and disgrace all the English, and set up and countenance the Irish all that he could." — P. 437. This has in all ages been the language, when they have been placed on an equality, or any thing approaching to an equaUty, with their fellow-subjects. jealousy.* Hence, in a Parliament sum- moned by Sir Heniy Sidney in opposition in 1569, the first after that which Parliament, had reluctantly established the Protestant Church, a strong country party, as it may be termed, was formed in opposition to the crown. They complained with much just- ice of the management by which irreguiai- returns of members had been made ; some from towns not incorporated, and which had never possessed the elective right; some self-chosen sheriffs and magistrates ; some mere English strangers, returned for places which they had never seen. The judges, on reference to their opinion, de- clared the elections iUegal in the two for- mer cases, but confirmed the non-resident burgesses, which still left a majority for the court. The Irish patriots, after this preliminarj- discussion, opposed a new tax upon wines, and a bill for the suspension of Poyning's law. Hooker, an Englishman, chosen for Athenry, to whose account we are chief!}- indebted for our knowledge of these pro- ceedings, sustained the foi-mer in that high 'one of a prerogative lawyer which always best pleased his mistress. " Her majesty," he said, " of her own royal authority, might and may establish the same %vithout any of your consents, as she hath already done the like in England; saving of her courtesy, it pleaseth her to have it pass with your own consents by order of law, that she might thereby have the better tinal and assurance of your dutifulness. and good-will toward her." This language from a stranger, un- usual among a people proud of their birth- right in the common constitution, and little accustomed even to legitimate obedience, raised such a flame that the House was ad- journed ; and it was necessary to protect the utterer of such doctrines by a guard. The duty on wines, laid aside for the time, was carried in a subsequent session in the same year ; and several other statutes were enacted, which, as they did not aflfect the pale, may possibly have encountered no op- position. A part of Ulster, forfeited by Slanes O'Neil, a rebel almost as formidable in the first years of this reign as his kinsman Tyrone was near its conclusion, was vested in the crown ; and some provisions were made for the reduction of the whole island * Leiand, 248. Ireland] FROM HENRY VII. TO GEORGE II. 693 into shires. Connaught, in consequence, which had passed for one county, was di- vided into five.* In Sir Henry Sidney's second govern- Aibitrary uient, which began in 1576, the uf sTr'uei?^ P'''® excited to a more stren- sidney. uous resistance by an attempt to subvert their liberties. It had long been usual to obtain a sum of money for the maintenance of the household and of the troops by an assessment settled between the council and principal inhabitants of each disti'ict. This, it was contended by the government, was instead of the contribution of victuals which the queen, by her pre- rogative of purveyance, might claim at a fixed rate, much lower than the current price. f It was maintained on the other side to be a voluntary benevolence. Sid- ney now devised a plan to change it for a cess or permanent composition for eveiy plow-land, without regard to those which claimed exemption from the burden of pur- veyance ; and imposed this new tax by or- der of council, as sufficiently warrantable by the royal prerogative. The land-own- ers of the pale remonstrated against such a violation of their franchises, and were met by the usual arguments. They appealed to the text of the laws ; the deputy replied by precedents against law. " Her majes- ty's prerogative," he said, " is not limited by Magna Charta, nor found in Littleton's Tenures, nor written in the books of As- sizes, but registered in the remembrances of her majesty's Exchequer, and remains in the rolls of records of the Tower."t It was proved, according to him, by the most an- cient and credible recoi'ds in the roalm, that such charges had been imposed from time to time, sometimes by the name of cess, sometimes by other names, and more often by the governor and council, with such of the nobility as came on summons, than by Parliament. These irregularities did not satisfy the gentry of the pale, who refused compliance with the demand, and still al- leged that it was contraiy both to reason and law to impose any charge upon them without Parliament or grand council. A deputation was sent to England in the * Holingshed's Chronicles of Ireland, 342. This pai't is written by Hooker himself. L eland, 240. Irish Statutes, 11 Eliz. t Sidney Papers, i., 153. t H., 179. name of all the subjects of the English pale. Sidney was not backward in representing their behavior as the eflect of disaffection ; nor was Elizabeth likely to recede, where both her authority and her revenue were apparently concerned. But, after some demonstrations of resentment in committing the delegates to the Tower, she took alarm at the clamors of their countiymen; and, aware tliat the King of Spain was ready to throw troops into Ireland, desisted with that prudence which always kept her pas- sion in command, accepting a voluntary composition for seven years in the accus- tomed manner.* James I. ascended the throne with as great advantages in Ireland as in his other kingdoms. That island was "'^"'^^ already pacified by the submission of Ty- rone, and all was prepared for a final estab- lishment of the English power upon the ba- sis of equal laws and civilized customs : a reformation which in some respects the king was not ill fitted to introduce. His ]-eign is, perhaps, on the whole, the most important in the constitutional histoiy of Ireland, and that from which the present scheme of society in that country is chiefly to be deduced. 1. The laws of supremacy and unifoi-mi- ty, copied from those of England, were in- compatible with any exercise of the Roman * Sidney Papers, 84, 117, &c., to 236. Holing- shed, 389. Leland, 2C1. Sidney was much dis- appointed at the queen's want of finnness ; but it was plain by the correspondence that Walsiug- ham also thought he had gone too far. — P. 192. The sum required seems to have been reasonable, about X2000 a year from the five shires of the pale ; and, if they had not been stubborn, he thought all Munster also, except the Desmond territories, would have submitted to the payment. — P. 183. " 1 have great cause," he writes, "to mistrust the fidelity of the greatest number of the people of this country's birth of all degrees ; they be papists, as I may well term them, body and soul ; for not only in matter of religion they be Romish, but for government they will change, to be under a prince of their own superstition. Since your highness's reign the papists never showed such boldness as now they do." — P. 184. This, however, hardly tallies with what he says afterward, p. 208 : " I do believe, for far the greatest number of the inhab- itants of the English pale, her highness hath as true and faithful subjects as any she hath subject to the crown ;" unless the former passage refer chiefly to those without the pale, who, in fact, were exclusively concerned in the rebellions of this reign. 694 CONSTITUTIONAL HISTORY OF ENGLAND [Chap. XVIII. Catholic worship, or with the admission of any members of that Church into civil trust. It appears, indeed, that they were by no means strictly executed during the queen's reign ;* yet the priests were of course excluded, so far as the English au- thority prevailed, from their churches and benefices ; the former were chiefly ruined ; the latter fell to Protestant strangers, or to conforming ministers of native birth, disso- lute and ignorant, as careless to teach as the people were predetermined not to list- en.f The priests, many of them, engaged * Leland, ii., 381. t "The Church is now so spoiled," says Sir Henry Sidney in 1576, "as well by the ruin of the temples, as the dissipation and embezzling of the patrimony, and most of all for want of sufficient ministers, as so deformed and overthrown a Church there is not, I am sure, in any region where Christ is professed." — Sidney Papers, i., 109. In the di- ocese of Meath, being the best inhabited country of all the realm, out of 2ii4 parish churches. 105 were impropriate, having only curates, of whom but eighteen could speak English, the rest being " Irish rogues, who used to be papists," fifty-two other churches had vicars, and fifty-two more were in better state than the rest, yet far from well. — Id., 112. Spenser gives a bad character of the Protestant clergy, p. 412. [It was chiefly on this account that the University of Dublin was founded in 1591.— Leland, ii., 319.— 1845.] An act was passed, 12 Eliz., c. 1, for erecting free schools in every diocese, under English mas- ters, the ordinary paying one third of the salary, and the clergy the rest. This, however, must have been nearly impracticable. Another act, 13 Eliz., o. 4, enables the Archbishop of Armagh to grant leases of his lands out of the pale for a hundred years without assent of the dean and chapter, to persons of English birth, "or of the English and civil nation, bom in this realm of Ireland," at the rent of id. an acre. It recites the chapter to be " except a very few of them, both by nation, edu- cation, and custom, Irish. Irishly afFectioiied, and small hopes of their conformities or assent unto any such devices as would tend to the placing of any such number of civil people there, to the dis- advantage or bridling of the Irish." lu these northern parts, the English and Protestant inter- ests had so Uttle influence that the pope conferred three bishoprics, Derry, Clogher, and Raphoe, throughout the reign of Elizabeth. — Davis, 234. Leland, ii., 248. What is more remarkable is, that two of these prelates were summoned to Parlia- ment in 1585 — Id., 295 — the first in which some Irish were returned among the Commons. The reputation of the Protestant Church contin- ued to be little better in the reign of Charles I., though its revenues were much improved. Straf ford gives the clergy a very bad character in writ- ing to Laud. — Vol. i., 187. And Burnet's Life of Bedell, transcribed chiefly from a cotemporary me- in a conspiracy with the court of Spain against the queen and her successor, and all deeming themselves unjustly and sacri- legiously despoiled, kept up the spirit of disaffection, or at least of resistance to re- ligious innovation, throughout the king- dom.* The acces.sion of James seemed a sort of signal for casting off the yoke of her- esy ; in Cork, Waterford, and other cities, the people, not without consent of the mag- istrates, rose to restore the Catholic wor- ship ; they seized the churches, ejected the ministers, marched in public proces- sions, and shut their gates against the lord- deputj-. He soon reduced them to obedi- ence ; but almost the whole nation was of the same faith, and disposed to struggle for a public toleration. This was, beyond ev- ery question, their natural right, and as certainly was it the best policy of England to have granted it; but the kingcraft and the priestcraft of the day taught other les- sons. Priests were ordered by , Laws against proclamation to quit the realm ; Cathoiicsen- the magistrates and chief citi- zens of Dublin were committed to prison for refusing to frequent the Protestant Church. The gentry of the pale remon- sti-ated at the court of Westminster; and. though their delegates atoned for their moir, gives a detailed account of that bishop's dio- cese (Kilmore), which will take off any surprise that might be felt at the slow progress of the Ref- ormation. He liad about fifteen Protestant clergy, but all English, unable to speak the tongue of the people, or to perform any divine offices, or con- verse with them, " which is no small cause of the continuance of the people in popery still." — P. 47. The bishop observed, says his biographer, "with much regret, that the English had all along neg- lected the Irish as a nation, not only conquered, but undisciplinable, and that the clergy had scarce considered them as a part of their charge, but" had left them wholly into the hands of their own priests, without taking any other care of them but the making them pay their tithes ; and, indeed, their priests were a strange sort of people, that knew generally nothing but the reading their oflices, which were not so much as understood by many of them ; and they taught the people nothing but the saying their paters and aves in Latin." — P. 114. Bedell took the pains to learn himself the Irish language ; and, though he could not speak it, composed the first grammar ever made of it, had the Common Prayer read every Sunday in Irish, circulated catechisms, engaged the clergy to set up schools, and even undertook a translation of the Old Testament, which he would have publisb ed but for the opposition of Laud and Strafford. — P. 121. * Leland, 413. Ireland.] FROM HENRY VII. 10 GEORGE II. 695 self-devoted courage by imprisonment, the secret menace of expostulation seems to have produced, as usual, some effect, in a direction to the lord-deputy that he should endeavor to conciliate the recusants by in- struction. These penalties of recusancy, from whatever cause, were very little en- forced ; but the Catholics murmured at the Oath of Supremacy, w^hich shut them out from every distinction ; though here, again, the execution of the law was sometimes mitigated, they justly thought themselves humiliated, and the liberties of their coun- try endangered, by standing thus at the mercy of the crown ; and it is plain that even within the pale the compulsory stat- utes were at least far better enforced than under the queen, while in those provinces within which the law now first began to have its course, the difference w.is still more acutely perceived.* 2. The first care of the new administra- English )aw tion was to perfect the reduction estabii.^hed Ireland into a civilized kina;- tbrougnuut ^ Ireland. dom. Sheriffs were appointed throughout Ulster; the teiritorial divisions of counties and baronies were extended to the few districts that still wanted them ; the judges of assize went their circuits ev- ery where ; the customs of tanistry and gavelkind were determined by the Court of King's Bench to be void ; the Irish lords surrendered their estates to the crown, and received them back by the English ten- ures of knight-service or soccage ; an ox- act account was taken of the lands each of these chieftains possessed, that he might be invested with none but those he occupied ; * Leland, 414, &c. In a letter from six Catho- lic lords of the pale to the king in 1613, published ID Desiderata Curiosa Hibemica, i., 158, they com- plain of the Oath of Supremacy, which, they say, had not been much imposed under the queen, but was now, for the first time, enforced in the remote parts of the country, so that the most sufficient gentry were excluded from magistracy, and mean- er persons, if conformable, put instead. It is said, on the other side, that the laws against recusants were very little enforced, from the difficulty of get- ting juries to present them. — Id., 359. Carte's Ormond, 33. But this, at least, shows that there was some disposition to molest the Catholics on the part of the government : and it is admitted that they were excluded from offices, and even from practicing at the bar, on account of the Oath of Supremacy. — Id., 320 ; and compare the letter of six Catholic lords with the answer of the lord- deputy and council in the same volume. while his tenants, exempted from those un- certain Irish exactions, the source of their servitude and misery, were obliged only to an annual quit-rent, and held their own lands by a free tenure. The king's writ was obeyed, at least in profession, through- out Ireland ; after four centuries of law- lessness and misgovernment, a golden pe- riod was anticipated by the English comt- iers ; nor can we hesitate to recognize the influence of enlightened, and sometimes of benevolent minds, in the scheme of govern- ment now carried into effect.* But two unhappy maxims debased their motives and discredited their policy : the first, that none but the true religion, or the state's religion, could be suffered to exist in the eye of the law ; the second, that no pretext could be too harsh or iniquitous to exclude men of a different race or erroneous faith from their possessions. 3. The suppression of Slanes O'Neil's revolt in 1567 seems to have gettlen.ents suggested the thought, or afford- "f English in ed the means, of perfecting the stcr'aifd'oth- conquest of Ireland by the same P^"^. methods that had been used to commence it, an extensive plantation of English colo- * Davis's Reports, ubi supra. Discovery of Causes, &c., 260. Carte's Life of Ormond, i., 14. Leland, 418. It had long been an object with the English government to extinguish the Irish tenures and laws. Some steps toward it were taken under Henry VIII. ; but at that time there was too great a repugnance among the chieftains. In Eliza- beth's instructions to the Earl of Sussex on taking the government in 1560, it is recommended that the Irish should surrender their estates, and re- ceive grants in tail male, but no greater estate. — Desiderata Curiosa Hibernica, i., 1. This would have left a reversion in the crown, which could not have been cut oiF by suffering a recovery ; but as those who held by Irish tenure had probably no right to alienate their lands, they had little cause to complain. An act in 1569, 12 EHz.. c. 4, recit- ing the greater part of the Irish to have petitioned for leave to surrender their lands, authorizes the deputy, by advice of the privy council, to grant letters patent to the Irish and degenerate English, yielding certain reservations to the queen. Sid- ney mentions, in several of his letters, that the Irish were ready to surrender their lands. — Vol. i., 94, 105, 165. The act 11 Jac. 1, c. 5, repeals divers statutes that treat the Irish as enemies, some of which have been mentioned above. It makes all the king's subjects under his protection to live by the same law. Some vestiges of the old distinctions re- mained in the statute-book, and were eradicated in Strafford's Parliament. — 10 & 11 Car. I,, c. 6, 696 CONSTITUTIONAL HISTOB,Y OF ENGLAND [Chap. XVIII. nists. The law of forfeiture came in very conveniently to further this great scheme of policy. O'Neil was attainted in the Par- liament of 1569 ; the teiTitories which ac- knowledged him as chieftain, comprising a large part of Down and Antrim, were vest- ed in the crown : and a natural son of Sir Thomas Smith, secretary of state, who is said to have projected this settlement, was sent with a body of English to take pos- session of the lands thus presumed in law to be vacant. This expedition, however, failed of success, the native occupants not acquiescing in this doctrine of our law- yers ;* but fresh adventurers settled in dif- ferent parts of Ireland, and particularly aft- er the Earl of Desmond's rebellion in 1583, whose forfeiture was reckoned at 574,628 Irish acres, though it seems probable that this is more than double the actual confis- cation.f These lands in the counties of Cork and Keny, left almost desolate by the oppression of the Geraldines them- selves, and the far gi-eater cruelty of the government in subduing them, were par- celed out among English undertakers at low rents, but on condition of planting eighty- six families on an estate of 12,000 acres, and in like proportion for smaller posses- sions. None of the native Irish were to be admitted as tenants ; but neither this nor the other conditions were strictly observ- ed by the undertakers, and the colony suffer- ed alike by their rapacity and their neg- lect.t The oldest of the second race of English families in Ireland are found among the descendants of these Munster colonists. We find among them, also, some distin- guished names, that have left no memo- rial in their posterity : Sir Walter Raleigh, who here laid the foundation of his ti-ansi- tory success, and one not less in gloiy, and hardly less in misfortune, Edmund Spenser. In a country house once belonging to the Desmonds, on the banks of the Mulla, near Doneraile, the first three books of the Fae- ry Queen were written ; and here, too, the poet awoke to the sad realities of life, and has left us, in his Account of the State of Ireland, the most full and authentic doc- * Leland, ii., 254. t See a note in Leland, ii., 302. The tnith seems to be. that in this, as in other Irish forfeitures, a large part was restored to the tenants of the at- tainted parties. t Leland, ii., 301. ' ument that Ulustrates its condition. This treatise abounds with judicious observa- tions ; but we regret the disposition to rec- ommend an extreme severity in dealing with the native Irish, which ill becomes the sweetness of his muse. The two gieat native chieftains of the north, the Earls of Tyrone and Tyrconnel, a few years after the king's accession, en- gaged, or were charged with having en- gaged, in some new conspiracy, and fly- ing from justice, were attainted of treason. Five hundred thousand acres in Ulster ! were thus forfeited to the crown : and on this was laid the foundation of that great colony, which has rendered that province, from being the seat of the wildest natives, the most flourishing, the most Protestant, and the most enlightened pait of Ireland. This plantation, though projected, no doubt, by the king and by Lord Bacon, was chief- ly caiTied into effect by the lord-deputy. Sir Arthur Chichester, a man of great ca- pacity, judgment, and prudence. He caused surveys to be taken of the several counties, fixed upon proper places for building castles or founding towns, and advised that the lands should be assigned, partly to English or Scots undertakers, partly to servitors of the crown, as they were called, men who had possessed civil or militarj' offices in Ire- land, partly to the old Irish, even some of those who had been concerned in Tyrone's rebellion. These and their tenants were exempted from the Oath of Supremacy im- posed on the new planters. From a sense of the error committed in the queen's time by granting vast tracts to single persons, the lands were distributed in three classes, of 2000, 1500, and 1000 English acres: { and in every county one half of the assign- ments was to the smallest, the rest to the other two classes. Those who received 2000 acres were bound within four years to build a castle and bawn, or strong court- yard ; the second class within two years ' to build a stone or brick house with a bawn ; the third class a bawn only. The first I were to plant on their lands within three years forty-eight able men, eighteen years old or upward, born in England or the in- I land parts of Scotland ; the others to do the same in proportion to their estates. All the grantees were to reside within five years, in person or by approved agents, and Ireland.] FROM HENRY VII. TO GEORGE II. G97 to keep sufficient store of arms ; they were not to alienate their lands without the king's license, nor to let them for less than twen- ty-one years ; their tenants were to live in houses built in the English manner, and not dispersed, but in villages. The natives held their lands by the same conditions, except that of building fortified houses; but they were bound to take no Irish exactions from their tenants, nor to sutler the practice of wandering with their cattle from place to place. In this manner were these escheat- ed lands of Ulster divided among a hundred and four English and Scots undertakers, fifty-six sei-vitors, and two hundred and eighty-six natives. All lands which through the late anarchy and change of religion had been lost to the Church, were restored, and some further provision was made for the beneficed clergy. Chichester, as was just, received an aUotmeut in a far ampler meas- ure than the connnon servants of the crown.* This noble design was not altogether Injustice at- Completed according to the plat- tendingihem. fomi. The native Irish, to whom some regard was shown by these regula- tions, were less equitably dealt with by the colonists, and by those other adventur- ers whom England continually sent forth to enrich themselves and maintain her sover- eignty. Pretexts were sought to establish the crown's title over the possessions of the Irish ; they were assailed through a law which they had but just adopted, and of which they knew nothing, by the claims of a litigious and encroaching prerogative, against which no prescription could avail, nor any plea of fairness and equity obtain favor in the sight of English-born judges. Thus, in the King's and Queen's counties, and in those of Leitrim, Longford, and Westmeath, 385,000 acres were adjudged to the crown, and 66,000 in that of Wick- low. ■ The greater part was indeed regrant- ed to the native owners on a permanent tenure; and some apology might be found for this harsh act of power in the means it gave of civilizing those central regions, al- ways the shelter of rebels and robbers ; yet * Carte's Life of Ormond. i., 15. Leland, 429. Farmer's Chronicle of Sir Arthur Chichester's gov- ernment in Desiderata Curiosa Hibemica, i., 32 : an important and interesting narrative ; also vol. ii. of the same collection, 37. Bacon's Works, i., 657. this did not take off the sense of forcible spo- liation, which every foreign tyranny ren- ders so intolerable. SuiTcnders were ex- torted by menaces ; juries refusing to find the crown's title were fined by the council; many were dispossessed witliout any com- pensation, and sometimes by gross perjury, sometimes by barbarous cruelty. It is said that in the countj' of Longford the Irish had scarcely one third of tlieir former pos- sessions assigned to them, out of three fourths which had been intended by the king. Those who had been most faith- ful— those, even, who had conformed to the Protestant Church, were little better ti'eated than the rest. Hence, though in many new plantations great signs of im- provement were perceptible, though trade and tillage increased, and towns were built, a secret rankling for those injuries was at the heart of Ireland ; and in these two lead- ing gi'ievances, the penal laws against re- cusants, and the inquisition into defective titles, we trace, beyond a sliadow of doubt, the primary source of the rebellion in 1641.* * Leland, 437, 466. Carte's Omiond, 22. De- siderata Curiosa Hibemica, 238, 243, 378, et alibi ; ii., 37, et post. In another treatise published in this collection, entitled a Discourse on the State of Ireland, 1614, an approaching rebellion is re- markably predicted. " The next rebellion, when- soever it shall happen, doth threaten more danger to the state than any that hath preceded ; and my reasons are these : 1. They have the same bodies they ever had ; and therein they have and had ad- vantage over us. 2. From their infancies they have been and are exercised in the use of arms. 3. The realm, by reason of long peace, was never so full of youth as at this present. 4. That they are better soldiers than heretofore, their continual employments in the wars abroad assure us; and they do conceive that their men are better than ours. 5. That they are more politic, and able to manage rebellion with more judgment and dexter- ity than their elders, their experience and educa- tion are sufficient. 6. They will give the first blow ; which is very advantageous to them that will give it. 7. The quarrel for which they rebel will be under the veil of religion and liberty, than which nothing is esteemed so precious in the hearts of men. 8. And, lastly, their union is such, as not only the old English dispersed abroad in all parts of the realm, but the inhabitants of the pale cities and towns, are as apt to take arms against us, which no precedent time hath ever seen, as the ancient Irish."— Vol. i., 432. "I think that little doubt is to be made, but that the modem English and Scotch would in an instant be massacred in their houses." — P. 433. This rebellion the author expected to be brought about by a league with Spain, and with aid from France. 698 CONSTITUTIONAL HISTORY OF ENGLAND [Chap. XVIH. 4. Before the reign of James, Ireland had been regarded either as a conquei-ed country, or as a mere colony of English, according to the persons or the provinces which were in question. The whole island now took a common character, that of a subordinate kingdom, inseparable from the English crown, and dependent also, at least as was taken for granted by our lawyers, on the English Legislature, but governed after the model of our Constitution, by nearly the same laws, and claiming entire- ly the same liberties. It was a natural con- sequence that an Irish Parliament should represent, or affect to represent, every part of the kingdom. None of Irish blood . had ever sat, either lords or com- Constitution of Irish Par- nioners, till near the end of Hen- hameut. ^.^ yjij 'g reign. The repre- sentation of the twelve counties into which Munster and part of Leinster were divided, and of a few towns which existed in the reign of Edward III., if not later, was re- duced by the defection of so many English families to the limits of the four shires of the pale.* The old counties, when they returned to their allegiance under Henry VIII., and those afterward formed by Ma- ry and Elizabeth, increased the number of the Commons ; though in that of 1567, as has been mentioned, the writs for some of them were arbitrarily withheld. The two queens did not neglect to create new bor- oughs, in order to balance the more inde- pendent representatives of the old Anglo- Irish families by the English retainers of the court. Yet it is said that in seventeen counties out of thirty-two, into which Ire- land was finally parceled, there was no town that returned burgesses to Parlia- ment before the reign of James I., and the whole number in the rest was but about thirty. f He created at once forty new boroughs, or, possibly, rather more ; for • The famous Parliament of Kilkenny, in 1367, is said to have been veiy numerously attended. — Leland, i., 319. We find, indeed, an act, 10 Hen. VII., c. 23, annulling what was done in a preced- ing Parliament, for this reason, among others, that the writs had not been sent to all the shires, but to four only. Yet it appears that the writs would not have been obeyed in that age. t Speech of Sir John Davis (lf>12), on the Par- liamentary constitution of Ireland, in Appendix to Lelaud, vol. ii.. p. 490, with the latter's obsei-va- tions on it.— Carte's Ormond, i., 18. Lord Mount- morres's Hist, of Irish Parliament. the number of the Commons in 1C13 ap- pears to have been 232.* It was several times afterward augmented, and reached its complement of 300 in 1692. f These grants of the elective franchise were made, not, indeed, improvidently, but with very sinister intents toward the freedom of Par- liament, two thirds of an Irish House of Commons, as it stood in the eighteenth century, being returned with the mere farce of election by wretched tenants of the aristocracy. The province of Connaught, with the ad- joining county of Clare, was still free from the intrusion of English colonists. The Irish had complied, both under Elizabeth and James, with the usual conditions of surrendering their estates to the crown in order to receive them back by a legal ten- ure ; but as these grants, by some negli- gence, had not been duly enrolled in Chan- cery (though the proprietors had paid large fees for that security), the council were not ashamed to suggest, or the king to adopt, an iniquitous scheme of declaring the whole country forfeited, in order to form another plantation as extensive as that of Ulster. The remonstrances of those whom such a project threatened put a present stop to it, and Charles, on ascending the throne, found it better to hear the proposals of his Irish subjects for a composition. After some time, it was agieed between Charles 1. the court and the Irish agents in p^""""' ^ graces to London that the kingdom should the insh. voluntarily contribute =£120,000 in three * In the letter of the lords of the pale to King James above mentioned, they express their appre- hension that the erecting so many insignificant places to the rank of boroughs was with the view of bringing on fresh penal laws in religion, " and so the general scope and institution of Parliament frustrated, they being ordained for the assurance of the subjects not to be pressed with any new edicts or laws, but such as should pass with their general consents and approbations." — P. 158. The king's mode of replying to this constitutional lan- guage was characteristic. " What is it to you whether I make many or few boroughs? My council may consider the fitness, if I require it. But what if I had created 40 noblemen and 400 boroughs ? The more the merrier, the fewer the better cheer."— Desid. Cur. Hib., 308. t Mountraorres, i.. 166. The whole number of peers in 1634 was 122, and those present in Par- liament that year were 66. They had the privi- lege not only of voting, but even protesting by proxy ; and those who sent none were sometimes fined.— Id., vol. i., 316. Ireland.] FROM HENRY VII. TO GEORGE II. 699 years by equal payments, in return for cer- tain graces, as they were called, which the king was to bestow. These went to se- cure the subject's title to his lands against the crown after sixty years' possession, and gave the people of Connaught leave to en- roll their grants, relieving, also, the settlers in Ulster or other places from the penalties they had incurred by similar neglect. The abuses of the council-chamber in meddling with private causes, the oppression of the Court of Wards, the encroachments of militaiy authority and excesses of the sol- diers, were restrained. A free ti-ade with the king's dominions or those of friendly powers was admitted. The recusants were allowed to sue for lively of their estates in the Court of Wards, and to practice in courts of law, on taking an oath of mere allegiance instead of that of supremacy. Unlawful exactions and severities of the clergy were prohibited. These reforma- tions of unquestionable and intolerable evils, as beneficial as those contained nearly at the same moment in the Petition of Right, would have saved Ireland long ages of ca- lamity, if they had been as faithfully com- pleted as they seemed to be graciously conceded. But Charles I. emulated, on this occasion, the most perfidious tyrants. It had been promised by an article in these Does not con- graces that a Parliament should firm them. ^e held to Confirm them. Writs of summons were accordingly issued by the lord-deputy, but with no consideration of that fundamental rule established by Poy- ning's law, that no Parliament should be held in Ireland until the king's license be obtained. This irregularity was of course discovered in England, and the writs of summons declared to be void. It would have been easy to remedy this mistake, if such it were, by proceeding in the regular course with a royal license. But this was withheld ; no Parliament was called for a considerable time ; and when the three years had elapsed during which the volun- tai-y conti-ibution had been payable, the king threatened to sti-aiten his graces if it were not renewed.* He had now placed in the viceroyalty of Ireland that star of exceeding brightness but sinister influence, the willing and able in- * Carte's Ormond, i., 48. Leland, ii., 475, et post. strument of despotic power, Lord j^jmi.ijstra- Strafford. In his eyes the coun- tionofStraf- try he governed belonged to the crown by right of conquest ; neither the original natives, nor even the descendants of the conquerors themselves, possessing any privileges which could interfere with its sovereignty. He found two parties ex- tremely jealous of each other, yet each loth to recognize an absolute prerogative, and thus, in some measure, having a common cause. The Protestants, not a little from bigotry, but far more from a persuasion that they held their estates on the tenure of a rigid religious monopoly, could not endure to hear of a toleration of popery, which, though originally demanded, was not even mentioned in the king's graces, and disap- proved the indulgence shown by those gra- ces to recusants, which is said to have been followed by an impolitic ostentation of the Romish worship.* They objected to a re- newal of the contribution, both as the price of this dangerous tolerance of recusancy, and as debarring the Protestant subjects of their constitutional right to grant money only in Parliament. Wentworth, howev- er, insisted upon its payment for another * Leland, iii., 4, et post. A vehement protesta- tion of the bishops about this time, witli Ulster at their head, against any connivance at popery, is a disgrace to their memory. It is to be met vrith in many books. Strafford, however, was far from any real hberality of sentiment. His abstinence from religious persecution was intended to be tempora- ry, as the motives whereon it was founded. " It will be ever far forth of my heart to conceive that a conformity in religion is not above all other things principally to be intended ; for, undoubtedly, till we be brought all under one form of divine serv- ice, the crown is never safe on this side, &c. It were too much at once to distemper them by bringing plantations upon them, and disturbing them in the exercise of their religion, so long as it be without scandal ; and so, indeed, very inconsid- erate, as I conceive, to move in this latter till tiiat former be fully settled, and by that means the Protestant party become by much the stronger, which in truth I do not yet conceive it to be."- — Straff. Letters, ii., 39. He says, however, and I believe truly, that no man had been touched for conscience' sake since he was deputy. — Id., 112. Every parish, as we find by Bedell's life, had its priest and mass-house ; in some places mass was said in the churches; the Romish bishops exer- cised their jurisdiction, which was fully obeyed ; but "the priests were grossly ignorant and open- ly scandalous, both for drunkenness and all sort of lewdness." — P. 41, 76. More than ten to one ift his diocese, the county of Cavan, were recusants. 700 CONSTITUTIONAL HISTORY OP ENGLAND [Chap. XVIII. year, at the expiration of which a Parlia- ment was to be called.* The king did not come without reluct- ance into this last measure, hating, as he did, the very name of Parliament ; ljut the lord- deputy confided in his own energy to make it innoxious and sei-viceable. They conspir- ed together how to extort the most from Ireland, and concede the least ; Charles, in truth, showing a most selfish iudifiier- ence to any thing but his own revenue, and a most dishonorable unfaithfulness to his word.f The Parliament met in 1634, with a strong desire of insisting on the confirmation of the graces they had already paid for ; but Wentworth had so balanced the Protestant and recusant parties, em- ployed so skillfully the resources of fair promises and intimidation, that he procured six subsidies to be granted before a proro- gation, without any mutual concession from the crown. t It had been agreed that a sec- * Some of the council-board having intimated a doubt of their authority to bind the kingdom, " I was tlien put to my last refuge, which was plainly to declare that there was no necessity which in- duced me to take counsel in this business ; for, rather than fail in so necessary a duty to my mas- ter, I would undertake, upon the peril of my head, to make the king's army able to subsist, and to provide for itself among them, without their help." —Strafford Letters, i., 98. + Id., i., 183. Carte, 61. t The Protestants, he wrote word, had a major- ity of eight in the Commons. He told them, " it was veiy inditferent to him what resolution the House might take ; that there were two ends he had in view, and one he would infallibly attain : either a submission of the people to his majesty's just demands, or a just occasion of breach, and either would content the king ; the first was unde- niably and evidently best for them." — Id., 277, 278. In his speech to the two Houses, he said, " His majesty expects not to find you muttering, or, to name it more truly, mutinying in corners. I am commanded to carry a very watchful eye over these private and secret conventicles, to punish the transgression with a heavy and severe hand ; therefore it behooves you to look to it." — Id., 289. "Finally," he concludes, "I wish you had a right judgment in all things ; yet let me not prove a Cassandra among you, to speak truth and not be believed. However, speak truth I will, were I to become your enemy for it. Remember, therefoi'e, that I tell you, you may easily make or mar this Parliament. If you proceed with respect, without laying clogs and conditions upon the king, as wise men and good subjects ought to do, you shall in- fallibly set up this parliament eminent to posteri- ry, as the very basis and foundation of the gi-eatest happiness and prosperity that ever befell this na- ond session should be held for confirming the graces ; but in this, as might be expect- ed, the supplies having been provided, the request of both Houses that they might re- ceive the stipulated reward met with a cold reception ; and ultimately the most essen- tial articles, those establishing a sixty years' prescription against the crown, and secur- ing the titles of proprietors in Clare and 1 Con naught, as well as those which relieved the Catholics in the Court of Wards from the Oath of Supremacy, were laid aside. Statutes, on the other hand, were borrow- ed from England, especially that of uses, which cut off the methods they had hither- to employed for evading the law's severity.* Sti-afford had always determined to exe- cute the project of the late reign with re- spect to the western counties. He pro- ceeded to hold an inquisition in each county of Connaught, and summoned juries in or- der to preserve a mockery of justice in the midst of tyranny. They were required to find the king's title to all the lands, on such evidence as could be found and was thought fit to be laid before them ; and were told that what would be best for their own in- terest would be to return such a verdict as the king desired, what would be best for his, to do the contrary ; since he was able to establish it without their consent, and wished only to invest them graciously with a large part of what they now unlawfully witliheld froin him. These menaces had tian ; but if you meet a great king witb narrow, circumscribed hearts, if you will needs be wise and cautious above the moon [sic], remember again that I tell you, j ou shall never be able to cast your mists before the eyes of a discerning king ; yon shall be found out ; your sons shall wish they had been the children of more believing parents ; and in a time when you look not for it, when it will be too late for j ou to help, the sad repentance of an unadvised heart shall be yours, lasting honor shall be my master's." These subsidies were reckoned at near £41,000 each, and were thus apportioned : Leinster paid £13,000 (of which £1000 from the citj- of Dublin), Munster £11,000, Ulster £10,000, Connaught £6800.— Mountmorres, ii., 16. * Irish Statutes, 10 Car. I., c. 1, 2, 3, &c. Straf- ford Letters, i., 279, 312. The king expressly ap- proved the denial of the graces, though promised formerly by himself. — Id., 345. Leland, iii., 20. "I can now say," Strafford obsen'es (Id., 344), " the king is as absolute here as any prince in the whole world can be ; and may still be, if it be not spoiled on that side." Ireland.] FROM HENRY VII. TO GEORGE II. 701 their effect in all comities except that of Galway, where a juiy stood out obstinate- ly against the crown, and being in conse- quence, as well as the sheriff, summoned to the castle in Dublin, were sentenced to an enormous fine. Yet the remonstrances of the western pi'oprietors were so clamor- ous that no steps were immediately taken for cariying into effect the designed plant- ation, and the great revolutions of Scotland and England which soon ensued gave an- other occupation to the mind of Lord Sti-af- ford.* It has never been disputed that a more uniform administration of justice in ordinaiy cases ; a stricter coercion of out- rage ; a more extensive commerce, evi- denced by the augmentation of customs ; above all, the foundation of the great linen manufacture in Ulster, distinguished the pe- riod of his government, f But it is equally manifest that neither the reconcilement of parties, nor their affection to the English crown, could be the result of his arbitrary domination ; and that, having healed no wound he found, he left others to break out after his removal. The despotic violence of this minister toward private persons, and those of great eminence, is, in some instan- ces, well known by the proceedings on his impeachment, and in others is sufficiently familiar by our historical and biographical literature. It is, indeed, remarkable, that we find among the objects of his oppression and insult all that most illustrates the co- temporary annals of Ireland, the venerable learning of Usher, the pious integrity of Bedell, the experienced wisdom of Cork, and the early virtue of Clanricarde. The Parliament assembled by Strafford in 1640 began with loud professions of grat- itude to the king for the excellent governor he had appointed over them ; they voted subsidies to pay a large army raised to serve against the Scots, and seemed eager to give every manifestation of zealous loy- alty.t But after their prorogation, and during the summer of that year, as rapid a * Strafford Letters, i., 353, 370, 402, 442, 451, 454, 473; ii., 113, 139, 366. Leland, iii., 30, 39. Carte, 82. t It is, however, true that he discouraged the woolen manufacture, in order to keep the kingdom more dependent, and that this was part of liis mo- tive in promoting the other. — Sti'aff. Lett, ii., 19. { Leland, iii., 51. Strafford himself (ii., 397) speaJks highly of their disposition. tendency to a gi-eat revolution became vis- ible as in England; the Commons, when they met again, seemed no longer the same men ; and, after the fall of their great vice- roy, they coalesced with his English ene- mies to consummate liis destruction. Hate long smothered by fear, but inflamed by the same cause, broke forth in a remonstrance of the Commons presented through a com- mittee, not to the king, but a superior pow- er, the Long Parliament of England. The two Houses united to avail themselves of the advantageous moment, and to extort, as they very justly might, from the neces- sities of Charles, that confirmation of his promises which had been refused in his prosperity. Both parties. Catholic as well as Protestant, acted together in this nation- al cause, shunning for the present to bring forward those differences which were not the less implacable for being thus deferred. The catalogue of temporal grievances was long enough to produce this momentary co- alition : it might be groundless in some ar- ticles, it might be exaggerated in more, it might in many be of ancient standing ; but few can pretend to deny that it exhibits a true picture of the misgovernment of Ire- land at all times, but especially under the Earl of Sti-afford. The king, in May, 1641, consented to the greater pait of their de- mands, but, unfortunately, they were never granted by law.* But the disordered condition of his af- fairs gave encouragement to hopes far be- yond what any Parliamentaiy remonstran- ces could realize ; hopes long cherished when they had seemed vain to the world, but such as courage, and bigotry, and re- sentment would never lay aside. The court of Madrid had not abandoned its connection with the disaflected Irish, especially of the priesthood ; the son of Tyrone, and many followers of that cause, served in its armies; and there seems much reason to believe * Carte's Ormond, 100, 140. Leland, iii., 54, et post. MountmoiTes, ii., 29. A remonstrance of the Commons to Lord-deputy Waudesford against vaiious giievances was presented 7th of November, 1640, before Lord Strafford had been impeached. — Id., 39. As to confirming the graces, the delay, whether it proceeded from the king or his Irish representatives, seems to have caused some suspicion. Lord Clanricarde mentions the ill consequences that might result, in a letter to Lord Bristol. — Carte's Ormond, iii., 40. 702 CONSTITUTIONAL HISTORY OF ENGLAND [Chap. XVIIl. that in the beginning of 1641 the project of insurrection was formed among the expa- triated Irish, not without the concun'ence of Spain, and perhaps of Richelieu.* The government had passed from the vigorous hands of Strafford into those of two lords- justices. Sir William Parsons and Sir John Boilasc, men by no means equal to the critical circumstances wherein they were placed, though possibly too severely cen- sured by those who do not look at their ex- traordinary difficulties with sufficient can- dor. The primary causes of the rebellion are not to be found in their supineness or misconduct, but in the two great sins of the English government : in the penal laws as to religion, which pressed on almost the whole people, and in the systematic iniqui- ty which despoiled them of their posses- sions. They could not be expected to miss such an occasion of revolt ; it was an hour of revolution, when liberty was won by * Sir Henry Vane communicated to the lords- justices, by the king's command, March 16, 1640- 41, that advice had been received and confirmed by the ministers in Spain and elsewhere, which " deserved to be seriously considered, and an es- pecial care and watclifulness to be had therein : that of late there have passed from Spain (and the like maj' well have been from other parts) an un- speakable number of Irish churchmen for England and Ireland, and some good old soldiers, under pretext of asking leave to raise men for the King of Spain ; whereas it is observed among the Irish friars there, a whisper was, as if they expected a rebellion in Ireland, and particularly in Connaught." — Carte's Ormond, iii., 30. This letter, which Carte seems to have taken from a printed book, is authenticated in Clarendon State Papers, ii., 143. I have mentioned in another part of this work. Chap. VIII., the provocations which might have in- duced the cabinet of Madrid to foment disturban- ces in Charles's dominions. The lords-justices are taxed by Carte with supineness in paying no at- tention to this letter, vol. i., 166 ; but how he knew that they paid none seems hard to say. Another imputation has been thrown on the Irish government and on the Parliament for object- ing to permit levies to be made for the Spanish service out of the army raised by Strafford, and disbanded in the spring of 1641, which the king had himself proposed. — Carte, i., 133; and Leland, 82, who follows the former implicitly, as he always does. The event, indeed, proved that it would have been far safer to let those soldiers, chiefly Catholics, enlist under a foreign banner; but, con- sidering the long connection of Spain with that party, and the apprehension always entertained that the disaffected might acquire military experi- ence in her service, the objection does not seem so very unreasonable. arms, and ancient laws were set at naught; the very success of their worst enemies, the Covenanters in Scotland, seemed the assurance of their own victory, as it was the reproach of their submission.* The rebellion broke out, as is well known, by a sudden massacre of the Scots Rebellion and English in Ulster, designed, no of 1641. doubt, by a vindictive and bigoted people to extirpate those races, and, if cotemporary authorities are to be credited, falling little short of this in its execution. Their evi- dent exaggeration has long been acknowl- edged; but possibly the skepticism of later writers has extenuated rather too much the horrors of this massacre, f It was certainly * The fullest writer on the Irish Kebellion is Carte, in his Life of Ormond, who had the use of a vast collection of documents belonging to that noble family, a selection from which forms his third volume. But he is extremely partial against all who leaned to the Parliamentary or Puritan side, and especially the lords-justices. Parsons and Bor- lase, which renders him, to say the least, a very favorable witness for the Catholics. Leland, with ' much candor toward the latter, but a good deal of the same prejudice against the Presbyterians, is little more than the echo of Carte. A more vigor- I 0U8, though less elegant historian, is Warner, whose impartiality is at least equal to Leland's, and who may, perhaps, upon the whole, be reck- oned the best modem authority. Sir John Temple's History of Irish Rebellion, and Lord Clanricarde'f Letters, with a few more of less importance, are valuable cotemporary testimonies. The Catholics themselves might better leave their cause to Carte and Leland than excite prej- udices instead of allaying them by such a tissae of misrepresentation and disingenuousness as Cur- ry's Historical Account of the Civil Wars in Ire- land. t Sir John Temple reckons the number of Protes- tants murdered, or destroyed in some manner, from the breaking out of the rebellion in October, 1641, to the cessation in September, 1643, at three hundred thousand, an evident and enormous exaggeration; so that the first edition being incorrectly printed, and with numerals, we might almost suspect a cipher to have been added by mistake, p. 15 (edit. Maseres). Clarendon says fortj' or fifty thousand were mur- dered in the &st insurrection. Sir William Petty, in his Political Anatomy of Ireland, from calcula- tions too vague to deserve confidence, puts the number massacred at thirty-seven thousand. War- ner has scrutinized the examinations of witnesses, taken before a commission appointed in 1643, and now deposited in the library of Trinity College, Dublin, and, finding many of the depositions un- sworn, and others founded on hearsay, has thrown more doubt than any earlier writer on the extent of the massacre. Upon the whole, he thinks twelve thousand lives of Protestants the utmost that can Ireland.] FROM HENRY VII. TO GEORGE II. 703 not the crime of the Catholics generally ; nor, perhaps, in the other provinces of Ire- land are they chargeable with more cinjel- ty than their opponents.* Whatever may be allowed for the direct or indirect effects of the rebellion, during the two first years, except losses in war (History of Irish Rebellion, p. 397), and of these only one third by murder. It is to be re- marked, however, that no distinct accounts conld be preserved in formal depositions of so promiscu- oas a slaughter, and that the very exaggerations show its tremendous nature. Tlie Ulster colony, a numerous and brave people, were evidently un- able to make head for a considerable time against tlie rebels, which could hardly have been if they had only lost a few thousands. It is idle to throw an air of ridicule (as is sometimes attempted) on the depositions because they are mingled with some fabulous circumstances, such as tlie appear- ance of the ghosts of the murdered on the bridge at Cavan, which, by-the-way, is only told, in the depositions subjoined to Temple, as the report of the place, and was no cold-blooded fabrication, bat the work of a fancy bewildered by real horrors. Carte, who dwells at length on every circum- stance unfavorable to the opposite party, dispatch- es the Ulster massacre in a single short paragraph, and coolly remarks, that there were not many mur- ders, "considering the nature of such art affair," in the first week of the insuirection. — Life of Or- mond, i., 175-177. This is hardly reconcilable to fair deahng. Curry endeavors to discredit even Warner's very moderate estimate, and affects to call him in one place, p. 184, " a writer highly prejudiced against the insurgents," which is gross- ly false. He praises Carte and Nalson, the only Protestants he does praise, and bestows on the latter the name of impartial. I wonder he does not say that no one Protestant was murdered. Dr. Lingard has lately given a short account of the Ulster rebellion (Hist, of England, x., 154), omit- ting all mention of the massacre, and endeavoring, in a note at the end of the volume, to disprove, by mere scraps of quotation, an event of such notorie- ty, that we must abandon all faith in public fame if it were really unfounded. " Carte, i., 253, 266; iii., 51. Leland, 154. Sir Charles Coote and Sir William St. Leger are charged with great cruelties in Munster. The Catholic confederates spoke with abhorrence of the Ulster massacre. — Leland, 161. Warner, 203. They behaved, in many parts, with humanity ; nor, indeed, do we find frequent instances of violence, except in those counties where the proprietors had been dispossessed. [It has been not unfrequent with Catholic writers to allege that 3000 Irish had been massacred by the Protestants in Isle Magee, near Carricfergus, before the rebellion broke out. Curry, in his grossly unfair History of the Civil Wars, and Plowden, in his not less unfair, an-d more superficial Historical Review of the State of Ireland, are among these ; the latter having been misled, or affected to be persuaded, by a passage in the appendix to Clarendon's Historical Accoujit of Irish Affairs, which appendix evidently was not have been the original intentions of the lords of the pale, or of the Anglo-Irish professing the old religion in general (which has been a problem in history), a few months only elapsed before they were almost universally engaged in the war.* The old distinctions written by that historian himself, but subjoined by some one to the posthumous work. Carte, though he seems to be staggered by the numbers, gives some credit to, or at least states as not improbable, the main fact, that this massacre occurred anteced- ently to any committed by the Irish themselves. — Life of Ormond, i., 188. But Leland refers to the original depositions in Trinity College, Dub- lin, whence it appears that some Scots soldiers, in gan-ison at Carricfergus, sallied out in January, when the rebellion was at its height, and slaugh- tered a few families of unoffending natives i:i Isle Magee. — Leland, iii., 129. Dr. Lingard, it must in justice be added, does not repeat this slander. — 1845.] * Carte and Leland endeavor to show that the Irish of the pale were driven into rebellion by the distrust of the lords-justices, who refused to furnish them with arms after the revolt in Ulster, and permitted the Parliament to sit for one day only, in order to publish a declaration against the rebels. But the prejudice of these writers is very glaring. The insurrection broke out in Ulster, October 23, 1641, and in the beginning of December the lords of the pale were in arms. Surely this affords some presumption that Warner has reason to think them privy to the rebellion, or, at least, not very averse to it. — P. 146. And with the suspi- cion that might naturally attach to all Irish Catho- lics, could Borlase and Parsons be censurable for declining to intrust them with arms, or, rather, for doing so with some caution .' — Temple, 56. If they had acted otherwise, we sliould certainly have heard of their incredible imprudence. Again, the Catholic party in the House of Commons were so cold in their loyalty, to say the least, that they objected to giving any appellation to the rebels worse than that of discontented gentlemen. — Le- land, 140. See, too, Clanricarde's Letters, p. 33, (Sec. In fact, several counties of Leinster and Con- naught were in arms before the pale. It has been thought by some that the lords-just- ices had time enough to have quelled the rebell- ion in Ulster before it spread further. — Warner, 130. Of this, as I conceive, we should not pretend to judge confidently. Certain it is that the whole ai-my in Ireland was vei-y small, consisting of only nine hundred and forty-three horse, and two thou- sand two hundred and ninety-seven foot. — Temple, 32. Carte, 194. I think Sir John Temple has been unjustly depreciated ; he was master of the rolls in Ireland at the time, and a member of the coun- cil— no bad witness for what passed in Dublin ; and he makes out a complete justification as far as appears, for the conduct of the lords-justices and council toward the lords of tlie pale and the Cath- olic gentry. Nobody alleges that Parsons and Bor- lase were men of as much energy as Lord Straf- ford ; but those who sit down in their closets, like 704 CONSTITUTIONAL HISTORY OF ENGLAND [Chap. XVIH. of Irish and English blood were obliterated by those of religion ; and it became a des- perate contention whether the majority of the nation should be trodden to the dust by forfeiture and persecution, or the crown lose eveiy thing beyond a nominal sover- eignty over Ireland. The insurgents, who might once, perhaps, have been content with a repeal of the penal laws, grew nat- urally in their demands through success, or, rather, through the inability of the En- glish government to keep the field, and be- gan to claim the entire establishment of their religion ; terms in themselves not un- reasonable, nor apparently disproportionate to their circumstances, and which the king was, in his distresses, nearly ready to con- cede, but such as never could have been obtained from a third party, of whom they did not sufficiently think, the Parliament and people of England. The Commons had, at the very beginning of the Rebellion, voted that all the forfeited estates of the in- surgents should be allotted to such as should aid in reducing the island to obedience, and thus rendci-ed the war desperate on the part of the Irish.* No great efforts were made, however, for some years ; but after the king's person had fallen into their hands, the victorious part}' set themselves in earn- est to effect the conquest of Ireland. This „ , . .. was achieved by Cromwell and Subjugation of the Irish his powerful army after several by Cromwell, yg^j.g^ with such bloodshed and rigor that, in the opinion of Lord Clarendon, L eland and Warner, more than a century after- ward, to lavish the most indignant contempt on their memory, should have reflected a little on the circumstances, * "I perceived (says Preston, general of the Irish, writing to Lord Clanricarde) that the Catho- lic religion, the rights and prerogatives of his maj- esty, my dread sovereign, the libeities of my conn- trj', and whether there should be an Irishman or no, were the prizes at stake." — Carte, iii., 120. Clanricarde himself expresses to the king, and to his brother, Lord Essex, in Januarj-, 1G12, his ap- prehension tliat the English Parliament meant to make it a religious war. — Clanricarde's Letters, 61, et post. The lettei'S of this great man, perhaps the most unsullied character in the annals of Ire- land, and certainly more so than even his illustri- ous cotemporarj-, the Duke of Ormond, exhibit the struggles of a noble mind between love of his coun- try and bis religion on the one hand, loyalty and honor on the other. At a later period of that un- happy war, he thought himself able to conciliate both principles. the sufferings of that nation, from the outset of the Rebellion to its close, have never been surpassed but by those of the Jews in their destruction by Titus. At the Restoration of Charle? II. there were in Ireland two people, one Rrsioraiion either of native, or old English of Charles li. blood, the other of recent settlement ; one Catholic, the other Protestant; one hum- bled by defeat, the other insolent with victo- ry ; one regarding the soil as his ancient in- heritance, the other as his acquisition and re- ward. There were three religions ; for the Scots of Ulster and the army of Cromwell had never owned the Episcopal Church, which for several years had fallen almost as low as that of Rome. There were claims, not easily set aside on the score of right, to the possession of lands, which the entire island could not satisfy. In England, little more had been necessary than to revive a suspended Constitution ; in Ireland, it was something beyond a new Constitution and code of law that was required : it was the titles and boundaries of each man's private estate that were to be litigated and adjudg- ed. The Episcopal Church was restored with no delay, as never having been abol- ished by law ; and a Parliament containing no Catholics, and not many vehement Non- conformists, proceeded to the great work of settling the struggles of opposite claim- ants by a fresh partition of the kingdom.* The king had already published a decla- ration for the settlement of Ire- Act of Set- land, intended as the basis of an t'ement. act of Parliament. The adventurers, or those who, on the faith of several acts passed in England in 1642, with the assent of the late king, had advanced money for quelling the rebellion, in consideration of lands to be allotted to them in certain stip- ulated proportions, and who had, in gener- al, actually received them from Cromwell, were confirmed in all the lands possessed by them on the 7th of May, 1659 ; and all the deficiencies were to be supplied before the next year. The army was confii'med in the estates already allotted for their pay, with an exception of Church lands and some others. Those officers who had served in the royal Jirmy against the Irish before 1649 were to be satisfied for their pay, at least to the amount of five eighths, out of lands * Carte, ii., 221. Leland, 420. Ireland.] FaOM HENRY VII. TO GEORGE II. 705 to be allotted for that purpose. Innocent papists, that is, such as were not concerned in the Rebellion, and whom Cromwell had arbitrarily transplanted into Connaught, were to be restored to their estates, and those who possessed them to be indemni- fied. Those who had submitted to the peace of 1648, and had not been afterward in arras, if they had not accepted lands in Connaught, were also to be restored, as soon as those who now possessed them should be satisfied for their expenses. Those who had served the king abroad, and thirty-six enumerated persons of the Irish nobility and gentry, were to be put on the same footing as the last. The precedency of restitution, an important point where the claims exceeded the means of satisfying them, was to be in the order above speci- fied.* This declaration was by no means pleas- ing to all concerned. The loyal officers who had sened before 1649, murmured that they had little prospect of more than twelve shillings and sixpence in the pound, while the Republican army of Cromwell would receive the full value. The Irish were more loud in their complaints; no one was to be held innocent who had been in the rebel quarters before the cessation of 1643 ; and other qualifications were add- ed so severe that hardly any could expect to come witJim them. In the House of Commons, the majority, consisting veiy much of the new interests, that is, of the adventurers and army, Avere in favor of adhering to the declaration. In the House of Lords it was successfully urged that, by gratifying the new men to the utmost, no fund would be left for indemnifying the Loyalists or the innocent Irish. It was proposed that, if the lands not yet disposed of should not be sufficient to satisfy all the interests for which the king had meant to provide by his declaration, there should be a proportional defalcation out of eveiy class for the benefit of the whole. These dis- cussions were adjourned to London, where delegates of the different parties employed eveiy resource of inti'igue at the English court. The king's bias toward the religion of the Irish had rendered him their friend, and they seemed, at one time, likely to re- verse much that had been intended against » Carte, ii., 216. Leland, 414. Z z them ; but their agents grew rash with hope, assumed a tone of superiority which ill became their condition, affected to just- ify their rebellion, and finally so much dis- gusted their sovereign that he ordered the Act of Settlement to be sent back with lit- tle alteration, except the insertion of some more Irish nominees.* The execution of this act was intrusted to English commissioners, from whom it was reasonable to hope for an impartiality wliich could not be found among the inter- ested classes. Notwithstanding the rigor- ous proofs nominally exacted, more of the Irish were pronounced innocent than the Commons had expected ; and the new pos- sessors having the sway of that assembly, a clamor was raised that the popish inter- est had prevailed ; some talked of defending their estates by arms, some even meddled in fanatical conspiracies against the govern- ment ; it was insisted that a closer inquisi- tion should be made, and stricter qualifica- tions demanded. The manifest deficiency of lands to supply all the claimants for whom the Act of Settlement provided, made it necessary to resort to a supple- mental measure, called the Act of Expla- nation. The adventurers and soldiers re- linquished one third of the estates enjoyed by them on the 7th of May, 1659. Twen- ty Irish nominees were added to those who were to be restored by the king's fa- vor ; but all those who had not already been adjudged innocent, more than three thou- sand in number, were absolutely cut off j from any hope of restitution. The great I majority of these, no question, were guilty ; yet they justly complained of this confisca- tion without a trial, f Upon the whole re- sult, the Irish Catholics having previously held about t^vo thirds of the kingdom, lost more than one half of their possessions by forfeiture on account of their rebellion. If we can rely at all on the calculations, made almost in the infancy of political arithmetic by one of its most diligent investigators, they were diminished also by much more than one third through the calamities of that pe- riod, t * Carte, 222, et post. Leland, 420, et post. t Carte, 258-316. Leland, 431, et post. t The statements of lands forfeited and restored, nnder the execution of the Act of Settlement, are not the same in all writers. Sir William Petty 706 CONSTITUTIONAL HISTORY OF ENGLAND [CHAr. XVIIL It is more easy to censure the particular inequalities, or even, in some respects, in- justice of the Act of Settlement, than to point out what belter course was to have been adopted. The readjustment of all private rights after so entire a destruction of their landmarks could only be effected by the coarse process of general i-ules. Nor does it appear that the Catholics, consider- ed as a great mass, could reasonably mur- mur against the confiscation of half their estates, after a civil war wherein it is evi- dent that so large a proportion of them- selves were concerned.* Charles, it is estimates the superficies of Ireland at 10,500,000 Irish acres (each being to the English measure nearly as thirteen to eight), whereof 7,500,000 are of good land, the rest being moor, bog, and lake In 1641, the estates of the Protestant owners and of the Church were about one third of these culti- vable lands, those of Catholics two thirds. The whole of the latter were seized or sequestered by Cromwell and the Parliament. After summing up the allotments made by the commissioners under the Act of Settlement, he concludes that, in 1672, the English, Protestants, and Church, have 5,140,000 acres, and the papists nearly half as much.— Polit- ical Anatomy of Ireland, c. 1. In Lord Orrery's Letters, i., 187, et post., is a statement, which seems not altogether to tally with Sir William Petty's ; nor is that of the latter clear and consist- ent in all its computations. Lawrence, author of "The Interest of Ireland Stated," a treatise pub- lished in 1682, says, "of 10,868,949 acres returned by the last survey of Ireland, the Irish papists are possessed but of 2,041,108 acres, which is but a small matter above the fifth part of the whole." — Part ii., p. 48. But, as it is evidently below one fifth, there must be some mistake. It appears that in one of these sums he reckoned the whole ex- tent, and in the other only cultivable lands. Lord Clare, in his celebrated speech on the Union, greatly overrates the confiscations. [It is stated in the English Journals of Commons, 12th of Jan., 1694, that the court of claims (that is, the commis- sioners appointed as in the text) allotted 4,560,037 acres to the English, 2,323,809 to the Irish, and left 824,391 undisposed. This, by supposing the last to have been afterward divided, would very close- ly tally with Sir William Petty's estimate. — 1845.] Petty calculates that above 500,000 of the Irish " perished and were wasted by the sword, plague, famine, hardship, and banishment, between the 23d day of October, 1641, and the same day 1652;" and conceives the population of the island in 1641 to have been nearly 1,500,000, including Protestants. But his conjectures are prodigiously vague. " Petty is as ill satisfied with the restoration of lands to the Irish as they could be with the con- fiscations. " Of all that claimed innoceucy, seven iu eight obtained it. The restored persons have more than what was their own in 1641 by at least true, had not been personally resisted by the insurgents ; but, as chief of England, he stood in the place of Cromwell, and equally represented the sovereignty of the greater island over the lesser, which under no form of government it would concede. The Catholics, however, thought them- selves oppressed by the Act of iiopea of ih* Settlement, and could not for- j^''^' ChaX"' give the Duke of Ormond for and James, his constant regard to the Protestant inter- ests, and the supremacy of the English crown. They had enough to encourage them in the king's bia.s toward their religion, which he was able to manifest more open- ly than in England. Under the administra- tion of Lord Berkley in 1670, at the time of Charles's conspiracy with the King of France to subvert religion and liberty, they began to menace an approaching change, and to aim at revoking, or materially weak- ening, the Act of Settlement. The most bigoted and insolent of the popish clergy, who had lately rejected with indignation an offer of more reasonable men to renounce the tenets obnoxious to civil governments, were countenanced at Dublin ; but the firet alarm of the new proprietors, as well as the general apprehension of the court's de- signs in England, soon rendered it necessa- ry to desist from the projected innovations.* The next reign, of course, reanimated the Irish party; a dispensing prerogative set aside all the statutes ; every civil office, the courts of justice, and the privy council, were filled with Catholics; the Protestant soldiers were disbanded ; the citizens of that religion were disarmed ; the tithea were withheld from their clergy • they were suddenly reduced to feel that bitter condition of a conquered and proscribed people which they had long rendered the lot of their enemies. f From these ene- mies, exasperated by bigotry and revenge, they could have nothing but a full and ex- ceeding measure of retaliation to expect ; nor had they even the last hope that an English king, for the sake of his crown and country, must protect those who formed the strongest link between the two islands. one fifth. Of those adjudged innocents, not one in twenty were really so." * Carte, ii., 414, et post. Leland, 458, et post. t Leland, 493, et post. Mazure, Hist, de la nevolut., ii., 113. Ireland.] FROM HENRY VII. TO GEORGE II. 707 A man violent and ambitious, without su- perior capacity, the Earl of Tyrconnel, lord- lieutenant in 1687, and commander of the army, looked only to his master's interests, in subordination to those of his countrymen and of his own. It is now ascertained that, doubtful of the king's success in tlie strug- gle for restoring popery in E ngland, he had made secret overtures to some of the French agents for casting off all connection with that kingdom in case of James's death, and, with the aid of Louis, placing the crown of Ireland on his own head.* The revolution Warofi689, in England was followed by a and final re- ^ ■ Ireland of three years' duction of •' Ireland. duration, and a war on both sides, like that of 1641, for self-preservation. In the Parliament held by James at Dublin iu 1690, the Act of Settlement was repealed, and above 2000 persons attainted by name ; both, it has been said, perhaps with little truth, agiiinst the king's will, who dreaded the impetuous nationality that was tearing away the bulwarks of his throne. f But the magnanimous defense of Deny and the splendid victory of the Boyne restored the Pi-otestaut cause ; though the Irish, with the succor of French troops, maintained for two yeai's a gallant resistance, they could not ultimately withstand the triple superior- ity of military talents, resources, and disci- pline. Their bravery, however, served to obtain the articles of Limerick on the sur- render of that city, conceded by their noble- minded conqueror against the disjjosition of those who longed to plunder and persecute their fallen enemy. By the first of these articles, " the Roman Catholics of this king- dom shall enjoy such privileges in the exer- cise of their religion as are consistent with the laws of Ireland, or as they did enjoy in * M. Maznrc lias brought tliis remarkable fact to light. Bonrepos, a French emissary in England, was authorized by his court to proceed in a nego- tiation with Tyrconnel for the separation of the two islands, in case that a Protestant should suc- ceed to the crown of England. He liad, accord- ingly, a private interview with a confidential agent of the lord-lieutenant at Chester, in the month of October, 1G87. Tyrconnel undertook that in less than a year every thing should be prepared. — Id., ii., 281, 288 ; iii., 430. t Leland, 537. This seems to rest on the au- thority of Leslie, which is by no means good. Some letters of Barillon, in 1687, show that James had intended the repeal of the Act of Settlement. — Dalrymple, 257, 263. the reign of King Charles II. ; and their majesties, as soon as their affairs will per- mit them to summon a Parliament in this kingdom, will endeavor to procure the said Roman Catholics such further security in that particular as may preserve them from any disturbance upon the account of their said religion." The second secures to the inhabitants of Limerick and other places then in possession of tlie Irish, and to all ofificers and soldiers then in arms, who should return to their majesties' obedience, and to all such as should be under their pro- tection in the counties of Limerick, Kerry, Clare, Galway, and Mayo, all their estates, and all their rights, privileges, and immuni- ties, which they hold in the reign of Charles II., free from all forfeitures or outlawries incurred by them.* This second article, but only as to the garrison of Limerick or, other persons in arms, is confirmed by statute some years afterward. f The first article seems, how- ever, to be passed over. The forfeitures on account of the Rebellion, estimated at 1,060,792 acres, were somewhat diminished by restitutions to the ancient possessors un- der the capitulation ; the greater part were lavishly distributed to English grantees.J It appears from hence that at the end of the seventeenth century, the Irish or Anglo- Irish Catholics could hardly possess above one sixth or one seventh of the kingdom. § They were still formidable from their num- bers and their sufferings ; and the victorious party saw no security but in a system of oppression, contained in a series of laws dur- ing the reigns of William and Anne, which have scarce a parallel in European history, unless it be that of the Protestants in France after the revocation of the Edict of Nantes, who yet were but a feeble minority of the whole people. No papist was allowed to * See the articles at length in Leland, 619. Those who argue from the treaty of Limerick against any political disabilities subsisting at pres- ent do injury to a good cause. — [1827.] t Irish Stat, 9 Wm. III., c. 2. t Pari. Hist., v., 1202. § [Vide supra. But of cultivable lands, if their forfeitures are to be reckoned in these alone, they may have retained about one fifth. As their free- hold property at the time of the Union was very much less than this, we must attribute the differ- ence, partly to the conversion of the wealthier fam- ilies, and partly to the pressure of the penal lawn, which induced men to sell their lands. — 1845.] 708 CONSTITUTIONAL HISTORY OF ENGLAND [Chap. XVIH. keep a school, or to teach any in private houses, except the children of the family.* Severe penalties were denounced against such as should go themselves or send oth- ers for education beyond seas in the Rom- ish religion ; and, on probable information given to a magistrate, the burden of proving the contraiy was thrown on the accused; the offense not to be tried by a jury, but by justices at quarter sessions. f Intermar- riages between persons of different relig- ions, and possessing any estate in Ireland, were forbidden; the children, in case of ei- ther parent being Protestant, might be tak- en from the other, to be educated in that faith, t No papist could be guardian to any child ; but the Court of Chancery might ap- point some relation or other person to bring up the ward in the Protestant religion. § The eldest son, being a Protestant, might turn his father's estate in fee simple into a tenancy for life, and thus secure his own in- heritance ; but if the children were all pa- pists, the father's lands were to be of the nature of gavelkind, and descend equally among them. Papists were disabled from purchasing lands except for terms of no: more than thirty-one years, at a rent not less than two thirds of the full value. They were even to conform within six months after any title should acci-ue by descent, devise, or settlement, on pain of forfeiture to the next Protestant heir ; a provision which seems intended to exclude them from real property altogether, and to ren- der the others almost supererogatory. || Arms, says the poet, remain to the plun- dered ; but the Irish Legislature knew that the plunder would be imperfect and insecure while arms remained ; no papist was per- mitted to retain them, and search might be made at any time by two justices. H The bare celebration of Catholic rites was not subjected to any fresh penalties ; but regu- lar priests, bishops, and others claiming ju- risdiction, and all who should come into the kingdom from foreign parts, were banished on pain of transportation, in case of neglect- ing to comply, and of high treason in case of returning from banishment. Lest these provisions should be evaded, priests were * 7 Wm. III., c. 4. t Id. t 9 Wm. III., c. 3. 2 Anne, c. G. j 9 Wm. III., c. 3. 2 Anne, c. 6. i Id. IT 7 Wm. lU., c. 5. required to be registered ; they were for- bidden to leave their own parishes; and rewards were held out to infoi-mers who should detect the violations of these stat- utes, to be levied on the popish inhabitants of the country.* To have exterminated the Catholics by the sword, or expelled them, like the Moriscoes of Spain, would have been little more repugnant to justice and humanity, but incomparably more pol- itic. It may easily be supposed that no poUt- ical privileges would be left to . ' Dependence those who were thus debarred of the Irish of the common rights of civil so- ghsh Par^a- ciety. The Irish Parliament had never adopted the act passed in the 5th of Elizabeth, imposing the Oath of Supremacy on the members of the Commons. It had been full of Catholics under the queen and her two next successors. In the second session of 1641, after the flames of rebell- ion had enveloped almost all the island, the House of Commons were induced to ex- clude, by a resolution of their own, those who would not take that oath ; a step which can only be judged in connection with the general circumstances of Ireland at that aw- ful crisis. f In the Parliament of 1661, no Catholic, or only one, was returned ;t but the House addressed the lords-justices to issue a commission for administeiing the Oath of Supremacy to all its members. A bill passed the Commons in 1663 for imposing that oath in future, which was stopped by a prorogation ; and the Duke of Ormond seems to have been adverse to it.§ An act of the English Parliament after the Revolution, reciting that "great disquiet and many dangerous attempts have been made to deprive their majesties and their royal predecessors of the said realm of Ire- land by the liberty which the popish recu- sants there have had and taken to sit and vote in Parliament," requires every mem- ber of both houses of Parliament to take the new oaths of allegiance and supremacy, and to subscribe the declaration against ti-an- ' 9 Wm. IIL, c. 1. 2 Anne, c. 3, s. 7. 8 Anne, c. 3. t Carte's Ormond,!., 328. Warner, 212. These writers censure the measure as illegal and impolitic. t Leland says none ; but by Lord Orrery's let- ters, i., 3.5, it appears that one papist and one An- abaptist were chosen for that Parliament, both from Tuam. { Monntmorres, i., 158. FROM HENRY VII. TO GEORGE II. 709 substantiation before taking his seat.* This statute was adopted and enacted by the Irish Parliament in 1782, after they had renounced the legislative supremacy of En- gland under which it had been enforced. The elective franchise, which had been rather singularly spared in an act of Anne, was taken away from the Roman Catholics of Ireland in 1715; or, as some think, not absolutely till 1727. f These tremendous statutes had, in some measure, the effect which their framers designed. The wealthier families, against whom they were principally leveled, con- formed in many instances to the Protestant Church.}: The Catholics were extinguish- ed as a political body; and, though any willing allegiance to the house of Hanover would have been monstrous, and it is known that their bishops were constantly nomina- ted to the pope by the Stuart princes, § they did not manifest at any period, or even dur- ing the rebellious of 1715 and 1745, the least movement toward a disturbance of the gov- ernment; yet for thirty years after the accession of George I. they continued to be insulted in public proceedings under the name of the common enemy, sometimes oppressed by the enactment of new stat- utes, or the stricter execution of the old ; till in the latter years of George II., their peaceable deportment, and the rise of a more generous spirit among the Irish Protestants, not only sheathed the fangs of the law, but elicited expressions of esteem from the rul- * Mouutruorres, i., 158. 3W. & M., c. 2. t Ibid., i., 163. Plowden's Hist. Review of Ire- land, i., 263. The teirible act of the second of Anne prescribes only the oaths of allegiance and abjaration for voters at elections, ^ 24. { Snch conversions were naturally distrusted. Boulter expresses alarm at the number of psucdo- Protcstants who practiced the law ; and a bill was actually passed to disable any one, who had not professed that religion for five years, from act- ing as a barrister or solicitor. — Letters, i., 226. " The practice of the law, from the top to the bot- tom, is almost wholly in the hands of these con- verts." $ Evidence of State of Ireland in Sessions of 1824 and 1825, p. 325 (as printed for Murray). In a letter of the year 1755^ from a clergyman in Ire- l.ind to Archbishop Herring, in the British Muse- um (Sloane MSS., 4164, 11), this is also stated. The ■writer seems to object to a repeal of the penal laws, which the Catholics were supposed to be at- tempting; and says they had the exercise of their religion as openly as the Protestants, and monas- teries in many places. ing powers, which they might justly con- sider as the pledge of a more tolerant poli- cy. The mere exercise of their religion in an obscure manner had long been per- mitted without molestation.* Thus in Ireland there were three nations, the original natives, the Anglo-Irish, and the new English ; the two former Catholic, except some, chiefly of the upper classes, who had conformed to the Church ; the last wholly Protestant. There were three religions, the Roman Catholic, the estab- lished or Anglican, and the Presbyterian ; more than one half of the Protestants, ac- cording to the computation of those times, belonging to the last denomination, f These, however, in a less degree, were under the ban of the law as truly as the Catholics themselves ; they were excluded from all civil ,Tnd military offices by a test act, and even their religious meetings were denounc- ed by penal statutes ; yet the House of Commons after the Revolution always con- tained a sti'ong Presbyterian body, and being unable, as it seems, to obtain an act of in- demnity for those who had taken commis- sions in the militia while the Rebellion of 1715 was raging in Great Britain, had re- course to a resolution, that whoever should prosecute any Dissenter for accepting such a commission is an enemy to the king and the Protestant interest. J They did not even obtain a legal toleration till 1720.§ It seems as if the connection of the two isl- ands, and the whole system of constitution- al laws in the lesser, subsisted only for the sake of securing the privileges and emolu- ments of a small number of ecclesiastics, frequently strangers, who rendered very little return for their enormous monopoly. A gi'eat share, in fact, of the temporal gov- * Plowden's Historical Review of State of Ire- land, vol. i., passim. t Sir William Petty, in 1672, reckons the inhab- itants of Ireland at 1,100,000 ; of whom 200,000 En- glish, and 100,000 Scots ; above half the former be- ing of the Established Church. — Political Anatomy of Ireland, chap. ii. It is sometimes said in modem times, tliough erroneously, that the Presbyterians form a majority of Protestants in Ireland ; but their proportion has probably diminished since the be- ginning of the eighteenth century. [It appears by a late census, in 1837, that the Established Church reckoned near 800,000 souls, the Presbyterians 660,000 ; the Catholics were above six millions. —1845.] t Plowden, 243. 5 Irish Stat., 6 Geo. I., c. 5. 710 CONSTITUTIONAL HISTORY OF ENGLAND [Chap. XVIII. emment under George II. was thrown suc- cessively into the hands of two primates, Boulter and Stone ; the one a worthy but narrow-minded man, who showed his egre- gious ignorance of policy in endeavoring to promote the wealth and happiness of the people, whom he at the same time studied to depress and discourage in respect of po- litical freedom ; the other an able, but prof- ligate and ambitious statesman, whose name is mingled, as an object of odium and en- mity, with the first great struggles of Irish patriotism. The new Irish nation, or, rather, the Protestant nation, since all distinctions of or- igin have, from the time of the great rebell- ion, been merged in those of religion, par- took in large measure of the spirit that was poured out on the advocates of liberty and the Revolution in the sister kingdom. Their Parliament was always strongly Whig, and scarcely manageable during the later years of the queen. They began to assimilate themselves more and more to the English model, and to cast off by degrees the fet- ters that galled and degraded them. By Poyning's celebrated law, the initiative power was reserved to the English council. This act, at one time popular in Ireland, was afterward justly regarded as destruct- ive of the rights of their Parliament, and a badge of the nation's dependence. It was attempted by the Commons in 1641, and by the Catholic confederates in the Rebellion, to procure its repeal; which Charles I. steadily refused, till he was driven to refuse nothing. In his son's reign, it is said that " the council framed bills altogether ; a neg- ative alone on them and their several provi- soes was left to Parliament ; only a gener- al proposition for a bill by way of address to the lord-lieutenant and council came from Parliament ; nor was it till after the Revo- lution that heads of bills were presented : these last, in fact, resembled acts of Par- liament or bills, with only the small differ- ence of ' We pray that it may be enacted,' instead of ' Be it enacted.' "* They as- sumed, about the same time, the examina- * Moantmorres, ii., 142. As one Hoase could not regularly transmit heads of bills to the other, the advantage of a joint recommendation was ob- tained by means of conferences, which were con- sequently moch more usual than in England. — Id., 179. tion of accounts, and of the expenditure of public money.* Meanwhile, as they gradually emancipa- ted themselves from the ascendency of the crown, they found a more formidable pow- er to contend with in the English Parlia- ment. It was acknowledged, by all, at least, of the Protestant name, that the crown of Ireland was essentially dependent on that of England, and subject to any changes that might affect the succession of the latter. But the question as to the subordination of her Legislature was of a different kind. The precedents and authorities of early ages seem not decisive ; so far as they extend, they rather countenance the opinion that English statutes were of themselves valid in Ireland ; but from the time of Henri' VI. or Edward IV. it was certainly estab- lished that they had no operation, unless enacted by the Irish Parliament. f This, however, would not legally prove that they might not be binding, if express words to that effect were employed ; and such was the doctrine of Lord Coke and of other En- glish lawj-ers. This came into discussion about the eventful period of 1641. The Irish, in general, protested against the legis- lative authority of England, as a novel the- ory which could not be maintained ;t and two treatises on the subject, one ascribed to Lord-chancellor Bolton, or, more probably, to an eminent lawyer, Patrick Darcy, for the independence of Ireland, another, in an- swer to it, by Sergeant Mayart, may be read in the Hibernica of Harris. § Very- few instances occurred before the Revolution wherein the English Parliament thought fit to include Ireland in its enactments, and none, perhaps, wherein they were carried into effect; but after the Revolution sever- al laws of great importance were passed in England to bind the other kingdom, and ac- quiesced in without express opposition by its Parliament. Molyneux, however, in his celebrated " Case of Ireland's being bound by Acts of Parliament in England stated," published in 1697, set up the claim of his country for absolute legislative independen- cy. The House of Commons at Westmin- ster came to resolutions against this book ; and, with their high notions of Parliament- * Id., 184. t Vide supra. { Carte's Ormond, iii., 55. J Vol. ii. Mountmorres, i., 360. Ireland.] PROM HENRY VII. TO GEORGE U. 711 ary sovereignty, were not likely to desist from a pretension which, like the very simi- lar claim to impose taxes in America, sprung, in fact, from the semi-Republican scheme of constitutional law established by means of the Revolution.* It is evident that while the sovereignty and enacting power was sup- posed to reside wholly in the king, and only the power of consent in the two houses of Parliament, it w.is much less natural to sup- pose a control of the English Legislature over other dominions of the crown, having their own representation for similar purpo- ses, than after they had become, in effect and in general sentiment, though not quite in the statute book, co-ordinate partakers of the supreme authority. The Irish Pai-lia- ment, however, advancing, as it were, in a parallel line, had naturally imbibed the same sense of its own supremacy, and made, at length, an effort to assei't it. A judgment from the Court of Exchequer in 1719 having been reversed by the House of Lords, an appeal was brought before the Lords in England, who affirmed the judgment of the Exchequer. The Irish Lords resolved that no appeal lay from the Court of Ex- chequer in Ireland to the king in Parlia- ment in Great Britain ; and the barons of that court having acted in obedience to the order of the English Lords, were taken into the custody of the black rod. That House next addressed the king, setting forth their reasons against admitting the appellant jurisdiction. But the Lords in England, after requesting the king to con- fer some favor on the barons of the Ex- chequer who had been censured and ille- gally imprisoned for doing their duty, or- dered a bill to be brought in for better se- curing the dependency of Ireland upon the • Journals, 27th of June, 1698. Pari. Hist, v., 1181. They resolved at the same time that the conduct of the Irish Parliament in pretending to re-enact a law made in England expressly to bind Ireland, h.id given occasion to these dangerous po- sitions. On the 30th of June they addressed the king in consequence, requesting him to prevent any thing of the like kind in future. In this ad- dress, as Krst drawn, the legislative authority of the kingdom of England is asserted. But this phrase was omitted afterward, I presume, as rath- er novel ; tliough by doing so they destroyed the basis of their proposition, which could stand much better on the new theory of the Constitution than the ancient. crown of Great Britain, which declares " that the king's majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons of Great Brit- ain, in Parliament assembled, had, hath, and of right ought to have, full power and authority to make laws and statutes of suf- ficient force and validity to bind the people and the kingdom of Ireland ; and that the House of Lords of Ireland have not, nor of right ought to have, any jurisdiction to judge of, reverse, or affirm any judgment, sentence, or decree given or made in any court within the said kingdom ; and that all proceedings before the said House of Lords upon any such judgment, sentence, or de- cree, are, and are hereby declared to be, utterly null and void, to all intents and pur- poses whatsoever."* The English government found no better method of counteracting this rising spirit of independence than by bestowing the chief posts in the State and Church on strangers, in order to keep up what was called the English interest. t This wretched policy united the natives of Ireland in jealousy and discontent, which the latter years of Swift were devoted to inflame. It was impossible that the kingdom should become, as it did under George II., more flourishing through its great natural fertility, its extens- ive manufacture of linen, and its facilities for commerce, though much restricted, the domestic alarm from the papists also being allayed by their utter prostration, without writhing under the indignity of its subordi- nation ; or that a House of Commons, con- structed so much on the model of the En- glish, could hear patiently of liberties and privileges it did not enjoy. These aspi- * 6 Geo. I., 0. 5. Plowden, 244. [There was some opposition made to this bill by Lord Moles- worth, and others not so much connected as he was with Ireland: it passed by 140 to 83.— Pari. Hist., vii., 642. — 1845.] The Irish House of Lords had, however, entertained writs of error as early as 1644, and appeals in equity from 16G1. — Mount- morres, i., 339. The English peers might have re- membered that their own precedents were not much older. \ See Boulter's Letters, passim. His plan for governing Ireland was to send over as many En- glish-horn bishops as possible. " The bishops," he says, " are the persons on whom the govern- ment must depend for doing the public business here." — I., 238. This, of course, disgusted the Irish Church. 712 CONSTITUTIONAL HISTORY OF ENGLAND, ETC. [Chap. XVIIL Growth of rations for equality fii'st, perhaps, a patriotic ^j.Qije Qut into audible complaints party in ' 1753. in the year 1753. The country was in so thriving a state that there was a surplus revenue after payment of all char- ges. The House of Commons determin- ed to apply this to the liquidation of a debt. The government, though not unwilling to admit of such an application, maintained that the whole revenue belonged to the king, and could not be disposed of without his previous consent. In England, where the grants of Parliament are appropriated according to estimates, such a question could hardly arise ; nor would there, I presume, be the slightest doubt as to the control of the House of Commons over a surplus in- come ; but in Ireland, the practice of ap- propriation seems never to have prevailed, at least so strictly,* and the constitutional * MouDtmorres, i., 424. right might, perhaps, not unreasonably be disputed. After long and violent discus- sions, wherein the speaker of the Com- mons and other eminent men bore a lead- ing part on the popular side, the crown was so far victorious as to procure some motions to be carried, which seemed to im- ply its authority ; but the House took care, by more special applications of the reve- nue, to prevent the recun'ence of an undis- posed surplus.* From this era the great Parliamentaiy history of Ireland begins, and is terminated after half a centuiy by the Union : a period fruitful of splendid el- oquence, and of ardent, though not always uncompromising patriotism ; but which, of course, is beyond the limits prescribed to these pages. * Ploveden, 306, et post. Hardy's Life of Lord Charlemont. INDEX Abbey Lands, appropriation of them considered, 52, 55, note * ; lawfulness of seizing, 53 ; distribution of, 54 ; retained by the Parliament under Mary, 55 ; increase the power of the nobility, &c., ibid. ; charity of the early possessors of, ibid. ; confirmed hy the pope to their new possessor.^, 69. Abbot (George, archbishop of Canterbury), sequestered, 239, and note * ; his Calvinistic zeal, 269 ; popish ti-acts in his library, 275, note §. Abbots, surrenders of, to Henry Vni. probably unlawful, 51 ; seats of, in Parliament, and their majority over the temporal peers, 52, and note *. Abjuration, Oath of, clause introduced into by the Tories, 59(i, note *. AboUtion of military tenures, 410. Act of Indemnity, 406 ; exclusion of the regicides from the, ibid. ; Commons vote to exclude seven, yet add several more, ibid., and notes. Act of Uniformity, 424 ; clauses against the Presbyterians, 425 ; no person to hold any preferment in England without Episcopal ordination, ibid., and note *; every minister compelled to give his assent to the Book of Common Prayer on pain of being deprived of his bene- fice, ibid., and 7tote t ; schoolmasters obUgcd to sub- scribe to, ibid. Act for suppressing conventicles, 430, 451, 4.52 ; opposed by Bishop Wilkms, 452 ; supported by Sheldon imd others, ibid. Act of Supremacy, particulars of the, 455. Act of Security, persons eligible to Parliament by the, 597, note * ; in Scotland, 674. Act of 1700 against the growth of popery, 588, and note t ; severity ot its penalties, 589 ; not carried into eftect, ibid. Act of Settlement, 589; limitations of the prerogative contained in it, 591 ; remarkable cause of the fourth remedial article, 592; its precaution against the influ- ence of foreigners, 594, note * ; importance of its sixth article, 594, 505, and note *. Act of Toleration, a scanty measure of religious liberty, 586. Act against wrongous imprisonment in Scotland, 673. Act for settlement of Ireland, 704 ; its insufficiency, 705. Act of Explanation, 705. • Acts, harsh, against the native Irish in settlement of col- onies, 698. Acts replacing the crown in its prerogatives, 419. See Bills and Statutes. Adamson, archbishop of St. Andrew's, obliged to retract before the General Assembly of the Church of Scot- land, 663. Addresses, numerous servile, from all parties to James II., 5.32, and note *, 533. Administration of Ireland, in whom vested, 683. Adultery, canon laws concerning, 67, note. Agitators estalihshed in every regiment, 354. .\ix la Chapelle, peace of, 44.5. Alienation, ancient English laws on. 19. Allegiance, extent and power of, 180, note *. Allegiance, Oath of, administered to papists under James I., 203. Allen, , his treacherous purposes against Elizabeth, 91, and note *. Almanza, battle of. 619. Altars removed in churches, 59. Alva (Duke of), his designed invasion of England, 85, and note t, 88. Ambassadors, exempt from criminal process, 100; ex- tent of tVieir privilege examined, ibid., note. Andrews (Dr. Launcelot, bishop of Winchester), his sen- timents on transubstantiation, 272, note t ; singular phrase in his epitaph, 273, note *. Anecdotes, two, relating to King Charles I. and Crom- well, 355, note t. Anglesea (lord-privy-seal), statement of, in the case of Lord Danby, 465, note t. Anglican Church, ejected members of, their claims, 413. Anjou (Duke of), his proposed marriage with Uueen EUzabeth, 81, note *, 86, 138, note §. Anne (Princess of Denmark), her repentant letter to James II.. 559, note J ; a narrow-minded, foolish woman, id. ibid. ; her dark intrigues with the court of St. Ger- main, id. ibid. Anne (Queen of Great Britain), her incapacity for gov- ernment, 605 ; her confidence in Godolphin a7)d Marl- borough, ibid. ; revolutions in her ministry, ibid. ; alarmed at the expedition of the Pretender, 612 ; her secret intentions with respect to the Pretender never divulged, 614, and note * ; her death, 617. Appeals in civil suits in Scotland lay from the baron's court to that of the sheriti' or lord of regahty, and ulti- mately to the Parliament, 661. Argyle (Earl of), refuses to subscribe the test, 670 ; con- victed of treason upon tlie statute of leasing making, and escapes, ibid. ; is executed after his rebellion upon his old sentence, ibid. Aristocracy, EngUsh, in Ireland, analogy of, to that of France, 681. Aristocracy of Scotland, influence of the, in the reign of James IV., 658 ; system of suppressing the, 659. Arlington (Henry Bennet, earl of), one of the Cabal, 444 ; obliged to change his policy, 456. Anninian Controversy, view of the, 229-232, and notes. Arms, provided by freeholders, &c., for the defense of the nation, 311, jiole J. Armstrong (Sir Thomas), given up by the States, and executed without trial, 490. Army, conspiracy for bringing in, to overawe the Parlia- ment, 299, 300, note *. Army of Scotland enters England, 330. Army, Parliamentary, new modeled, 337 ; advances to- ward London, 352. Army, proposals of the, to Iving Charles I. at Hampton Court, .3.54 ; rejected by him, ibid. ; innovating spirit in, 360 ; publishes a declaration for the settlement of the nation, 361 ; principal oflicers of, determine to bring tho king to justice, ibid., and 7iote t, 362. Army disbanded, 411 ; origin of the present, ibid. Army, great, suddenly raised by Charles II., 458, and note t. Army, intention of James II. to place the, under the com- mand of Catholic officers, 522. Army, standing, Charles the Second's necessity for, 447 ; its illegality in time of peace, 549, and note *. [See Standing Army.] Apprehensions from it, 634. Army reduced by the Commons, 568. Anny recruited by violent means, 608, and note |. Array, commissions of, 312. Arrest, exemption from, claimed by the House of Com- mons, 157-159 ; ParUamentary privilege of exemption from, 176. Articles, lords of the, their origin and power, 658 ; regu- larly named in the records of every Parliament from the reign of James IV., ibid. ; what they propounded, when ratified by the three estates, did not require the king's consent to give it vaUdity. 660; abolished, 673. Articles of the Church of England, real presence denied in the, 64 ; subsequently altered, 64, and note ^ ; orig- inal drawing up of the, 67, and note t ; brought before Parliament, 117 ; statute for subscribing, ibid. ; miniB- ters deprived for refusing, ibid., note t. Articles, Thirty-nine, denial of any of the, made excom- munication, 176, note }. Articles of the Church on predestination, 229. Articuli Cleri, account of the, 187. Artillery company estabUshed, 311. Anmdel (Thomas Howard, earl of), his committal to the Tower, 217. Arundel (Henry Howard, earl of), his case in Parha- ment, 512, note *. Ashby, a burgess of Aylesbury, sues the returning officer for refusing his vote, 641. 714 INDEX. Ashley (Anthony, Lord, afterward Earl of Shaftesbury), one of the Cabal, 444. Ashley (Sergeant), his speech in favor of prerogative, 223, note '. Ashton (John), remarks on his conviction for high treason on presumptive evidence. 579. Association abjuring the title of James II., and pledging the subscribers to revenge the death of William III., generally signed, 5C3, and note *. Atkinson ( ), his speech in the House of Com- mons against the statute for the queen's power, 7G, note *. Attainders against Russell, Sidney, Cornish, and Arm- strong, reversed, 579. Atterbury (Dr.), an account of his book entitled Rights and Privileges of an English Convocation, 6'25; pro- moted to the see of Rochester, ibid. ; disaflection to the house of Hanover, 629 ; deprived of hiB see, and ban- ished for life, ibid. Augsburg Confession, consubstantiation acknowledged in the, 61. Augsburg, League of, 540. Aylmcr (John, bishop of London), his persecution of pa- pists, 90, note\\ his covctousness and prosecution of the Puritans, 12.'i, and note § ; Ehzabeth's tyranny to, 135, note t ; his answer to Knox against female mon- archy, 1C4 ; passage from his book on the limited power of the English crown, ibid. Bacon (Sir Francis, Lord Verulam), his praise of the laws of Henry VII., 18; bis error concerning the Act of Benevolence, 20, note * ; his account of causes belong- ing to the Court of Star Chamber, 42 ; his apology for the execution of Catholics, 102, note; his charact**r of Lord Burleigh, 12.3, 124; excellence and moderation of his Advertisement on the Controversies of the Church of England, 136, and note * ; disliked agreeing with the House of Lords on a subsidy, 162 ; his advice to James I. on summoning a Parliament, 195 ; acquainted with the particulars or Overbury's murder, 203, and note * ; impeached for bribery, 206 ; extenuation of, ibid., note * ; his notice of the Puritans, 226, note * ; recommends mildness toward the papists, 234, note *. Bacon (Sir Nicholas), gi-eat seal given to, 72, note t ; abili- ties of, 72 ; suspected of favoring the house of Suflolk, 82 ; his reply to the speaker of the House of Com- mons, 149. BailUe (Robert), his account of the reception and im- peachment of the Earl of Stratford in England, 295, note *. Ball (Bishop of Ossory), persists in being consecrated ac- cording to the Protestant form, 689, note t. Ballot^ the, advocated in the reign of Anne, 602, 7iote t. Balmerino (Lord), tried for treason on the Scottish statute of leasing-making, 667. Bancroft (Riehai'd), archbishop of Canterbury, endeavors to increase the ecclesiastical jurisdiction. 187, and note * ; Puritan clergymen deprived by, 226, and note • ; de- fense of episcopacy, ibid., note *. Bangorian Controversy, 626 ; character of it, ibid., note *. Bank of England, its origin and depreciation of its notes, 566. Banks (Sir John), attorney-general, his defense of the king's absolute power, 231. Baptism by midwives abolished. 111, note J. Barebone's ParUamcnt 372 ; apply themselves %vith vigor to reform abuses, 373 ; vote for the abolition of the Court of Chancery, ibid. ; alarm the clergy, ibid. ; sur- render their power to Cromwell, ibid. Barillon (the French ambassador), favors the opposition, 460, note * ; sums given to members of Parliament mentioned by, 461 ; remarks on that corruption, 462 ; suspicions against, 482 ; extract from, concerning an address from the Commons to the king, 520, note *. Barnes (Dr. Thomas), appointed to defend the mar- riage of Henry VIII. with Catharine of Aragon, 45, note f. Baronets created by James I. to raise money, 195, and note J. Barons of Piirliament, the title of, objected to, 207, note \. Barons, English, their acquisitions in Ireland, 680. Barrier treaty of Lord Townshend, 609. Baxter, extract from his hfe, descriptive of the Episco- palians of his day, 414, note \. Beal ( ), his book against the ecclesiastical system of England, 93, iiote *. Beauchnmp (William Seymour, lord), honors of his family restored to, 170, note |. Bedford (Francis Russell, second earl of), imprisoned under Queen Mary on account of his religion, 69 ; his deati), 304, and note *. Bedford (William Russell, fifth carl of), joins King Charles I. at Oxford, .325 ; is ill received, ibid. ; returns to the Parliament, ibid. Beggars caused by the alms of moDasteries, 56 ; statute against giving to. ibid., note *. Bell (Mr.), his attack on licenses, 150; elected speaker, ibid., and note t. Bellarmine (Cardinal Robert), opposes the test oath of James I., 2.'j;3. Bellay (Joachim du, bishop of Bayonne), reports that « revolt was expected in England on the divorce of Henry VIII., 49. Benefices, first fruits of, taken from the pope, 47. Benevolence, exaction so called in 1545, 25 ; conse- quences of refusing to contribute to it, 26 ; taken by Queen Elizabeth, 145, 7iote *. Benevolences, oppression of under Edward IV., SO : abolished under Richard III., and revived by Henry VII., 20 ; granted by private persons, 20, note * j re- quired under James I., 197. Bennet (Dr.), his proposal on the divorce of Henry VIII., 48, 7iote *. Bennet ( ), an informer against papists, 96, note f. Benison ( ), his imprisonment by Bi-shop Aylraer, 123. Berkley (Sir John), justice of the King's Bench, defends ship-money, 248, and note * ; and the king's absolute power, 251 ; ParUamentary impeachment of, 315, note *. Berkley (Charles, first earl of), hia administration in Ire- land in 1670, 706. Berwick, right of election extended to, by Henry VIIL, 514. Best (Paul), ordinance against, for writing against tho Trinity, 349, note *. Bible, 1535, Church translation of the, proscribed, 57; liberty of reading, procured by Cromwell, and recalled by Henry VIII., 57, and note *. Bill of Exclusion, drawn in favor of the Duke of York's daughters, 475 ; of Rights, 548 ; of Indemnity, 553 ; for regulating trials upon charges of high treason, 580 ; of 7th of Queen Anne aft'ording peculiar privileges to tho accused, 581 ; to prevent occasional conformity, passes the Commons, and is rejected by the Lords, 627 ; passed by next Parliament, ibid. ; repealed by the Whigs, ibid., 628, note *. Birch (Dr. Thomas), confirms the genuineness of Gla- morgan's commissions, 344, and note *. Birth of the Pretender, suspicions attending the, 537. Bishops of England, authority of the pope in their elec- tion taken away, 48 ; their adherence to Rome the cause of their aboUtion by the Lutherans, 62 ; less of- fensive in England than Germany, ibid. ; defend Church property in England, 67; some inclined to the Puri- tans, 111 ; conference of with the House of Commons, 127 ; Commons opposed to the, ibid. ; Puritans object to their titie, 134. note * ; character of, under Elizabeth, 136, note * ; tyranny of the queen toward them, ibid.. and note * ; conference of, with the Puritans at Hamp- ton Court, 173 ; proceedings of the, against the Puri- tans, 225 ; jurisdiction of the, 264, and note * ; moder- ate government of, proposed, 301, and notes ; proceed- ings on abolishing, 302 ; excluded from Parliament, 303. and note * ; reflections on that measure, 303, 304 ; im- peachment of the twelve, 317, note t ; restored to their seats in the House of Lords, 419 ; their right of voting denied by the Commons m the case of Lord Danby, 465 ; discussion on the same, ibid. ; restored to Scot- land after six years' aboUtion, 665 ; and to part of their revenues, ibid. ; their protestations against any con- nivance at popery. 699, note *. Bishops, popish, endeavor to discredit the Englisih Scrip- tures, 57, note * ; refuse to officiate at Ehzabeth's coro- nation, 72, and notef; deprived under Elizabeth, TJ ; their subsequent treatment, 75. Bishoprics despoiled in the Reformation under Henry VIII., 63. Black, one of the ministers of St Andrew*?, summoned before the privy council of Scofland, 664. Blackstone (Sir William), his misunderstanding of the statute of allegiance, 11th Henry VII., 17, nolel ; inad- vertent assertion of, 483. Blair (Sir Adam), impeached for high treason, 483. Bland ( ), fined by authority of Parliament, 160. Blount (John), sentenced by the Lords to imprisonment and hard labor in Bridewell for hfe, 644. Boleyn (Anne), her weakness of character, 29, note ' ; INDEX. 715 undoubted innocence of; her indiscretion ; infamous proceedings upon her trial ; her levities in discourse brought as cliarges against her ; confesses a precon- tract with Lord Percy ; her marriage witli the king an- nulled, 30 ; act settling the crown on the king's children by, or any subsequent wife, 31 ; time of her marriage with Henry VIH. considered, 46, iiote * ; interested in the Reformed faith, 49. Bolingbroke (Henry St. John), Lord, remarkable passage in his Letters on History, 449, ?iote t ; engaged in cor- respondence with the Pretender, fil3, and note * ; im- peached of high treason, 618 ; his letters in the Ex- aminer answered by Lord Cowper, 654, note J ; char- acter of his writings, 654. Bolton (Lord-chancellor), his treatise on the independ- ence of Ireland, 710. Bonaght, usage of, explained, 679. Bonaght and coshering, barbarous practice of, C84. Bonaparte (Napoleon), character of, compared with that of OUver Cromwell, 384, 38.5, and note. Bonner (Edmund, bishop of London), his persecution, 64 ; treatment of, by Edward VL's council, 6.5, note ; royal letter to, for the persecution of heretics, 70, note * ; imprisoned in the Marshalsea, 76 ; denies Bish- op Horn to be lawfully consecrated, ibid. Books of tlie Reformed religion imported from Germany and Flanders, 57 ; statute against, ibid., note * ; books against the queen prohibited by statute, 87. Books, restiictions on printing, selling, possessing, and im- porting, 141, 142, and notes. Booth (Sir George), rises in Cheshire in favor of Charles n., 391. Boroughs and burgesses, elections and wages of, under Elizabeth, 155. and 7Wte Boroughs, twenty-two created in the reign of Edward VI., 37 ; fourteen added to the number under Mary, ibid., and twenty-one, 514 ; state of those that return members to Parliament, 513 ; fourteen created by Ed- ward VI., 514 ; many more by EUzabeth, ibid. Boroughs, royal, of Scotland, common usage of the, to choose the deputies of other towns as their proxies, 659. Bossuet (Jaques), his invective against Cranmcr. 65. Boucher (Joan), execution and speech of, 64, and iiote *. Boulter, primate of Ireland, his great share in the gov- ernment of Ireland in the reign of George II., 709, 710 ; his character, 710. Bound (Dr.), founder of the Sabbatarians, 227, note *. Boyne, splendid victory of the, gained by Wilham UI., 707. Brady (Dr. Thomas), remarks on his writings, 492 ; on his treatise on boroughs, 515, Brehou, customs of, murder not held felony by the, 678, and note t. Brewers complain of an imposition on malt, 208, note * ; proclamation concerning, 253. Bribery, first precedent for a penalty on, 157; impeach- ments for, 206 ; prevalent in the court of Charles II., 433 ; its prevalence at elections, 656, and notes t*. Bridgman (Sir Orlando), succeeds Clarendon, 444. Brihuega, seven thousand EngUsh under Stanhope sur- render at, 608. Bristol (John, lord Digby, earl of), refusal of summons to, &c., 217, 218, note *. Bristol (George Digby, earl of), converted to popery, 427 ; attacks Clarendon, 439, note p Frodie (Mr,), his e.vposure of the misrepresentations of Hump, 166, note *. Browne (Sir Thomas), his abilities, 279. Brownists and Barrowists, most fanatic of the Puritans, 129 ; emigi"ate to Holland, ibid. ; execution of, ibid., and note *. Crucc (Edward), his invasion of Ireland, 685. ncer (Martin), his permission of a concubine to the Landgrave of Hesse, 49, note t ; objected to the English vestments of priests, 68 ; his doctrines concerning the Lord's Supper, 61 ; politic ambiguity of, ibid., note * ; assists in drawing up the Forty -two Articles, 65, note *. Buckingham (Edward Stafford, duke of), his trial and execution under Henry VIII., 27, and note * ; his im- peachment, 217. Buckingham (George Vilhers, duke of), his connection with Lord Bacon's impeachment, 206, and note * ; sets aside the protracted match with Spain, 213 ; deceit of, 216, and note * ; his enmity to Spain, 234, and notes; his scheme of seizing on American gold mines, ibid., note t. Buckingham (son of the preceding), one of the Cabal ministry, 444 ; driven from the king's councils, 456 ; administration of, during tlie reign of Charles U., 499. Buckingham (John ShefEeld, duke of), engaged in the interest of the Pretender, 613, and note *. Bull of Pius V. deposing Elizabeth, 87 ; prohibited in England by statute, ibid. Bullinger (Henry), objected to the EngUsh vestments of priests, 68. Burchell (Peter), in danger of martial law under Eliza- beth, 143, and note *. Burgage tenure, 513 ; opinion of the author concerning ancient, 516. Burgesses, wages of boroughs to, 155, note * ; debate on non-resident, in the House of Commons, 156. Burgundy (Duke of), eS'ect of his death on the French succession, 610. Burnet (Dr. Gilbert, bishop of Salisbury), denies the an- swer of Henry VIII. to Luther, 44, note t ; and the king's bribery of the universities on his divorce, 45, note t ; his doubts on the time of Anne Boleyn's mar- riage, 46, note * ; his valuation of the suppressed mon- asteries, 53 ; his observations on the persecutions of Mary, 70, note t; anecdote related by, 438, note * ; his remarkable conversation with Bentinck, 546, note * ; remark ot, on the statute for regulating trials in cases of high treason, 581. Burton (Henry), and Edward Bastwick, prosecuted by the Star Chamber, 259. Bushell, a juryman, committed for non-pa5Tnent of bis fine imposed on him in the case of Penn and Mead, 498. Butler (Mr. Charles), his candid character of Cr:mmer, 66, 7iote t ; his discussion of the Oath of Supremacy, 74, Twtc. Cabal ministry, account of the, 444. Cabmet council, question of its responsibility, 592, and note t, 593, and notes ; members of the. answerable for the measures adopted by its consent, 594. Calais, right of election extended to, 514. Calamy (Edmund), irregularly set at liberty by the king's order, 429. Calvin (John), adopts Buccr's doctrine on the Lord's Supper, 61 ; malignity of, 64 ; objected to the English vestments of priests, 68. Calvinism in England, 230, and note Calvinists, severe act against the, 430. Cambridge University, favorable to Protestantism, 113. Camden (William, Clarenceux king of aims), remarks of, concerning Elizabeth's appointment of a successor, 81, note t. Cameronian rebellion, 669 ; the Cameronians publish a declaration renouncing their allegiance to Charles II., 670. Campian (Edmund), executed for popery, 92 ; his torture justified by Lord Burleigh, 91. Canon laws, commissioners appointed for framing a new series, 67, notes ; character ot the canons, whicn were never enacted, ibid. ; amendments of attempted, 117. Canons, ecclesiastical, new code of, under James 1., 176, and notes \ defending the king's absolute power, 186, and note t. Cardwell's "Annals of the Church," remarks upon a passage in, 226, note *. Carleton (Sir Dudley), his unconstitutional speech on Parliaments, 217, note *. Came (Sir Edward), ambassador at Rome, to Queen Mary, 71, 72, and note *. Carte (Thomas), his censure of the character, &c., of Queen Mary, 69, note t ; his anecdotes of Godolphin and Harley, 611, note t ; his life of the Duke of Ormond, 702, note * ; the fullest writer on the Irish rebellion, ibid. Carte and Leland, their account of the causes of the re- bellion m Ireland in 1641, 703, note *. Cartwright (Thomas), founder of the Puritans, 113 ; his character, ibid. ; his Admonition, 114 ; his opposition to civil authority in the Church, ibid. ; his probable in- tent of its overthrow, ibid., note t ; design of his labors, 115 ; objected to the seizure of Church property, ibid.^ note*; summoned before the ecclesiastical commission^ 125 ; disapproved of the Puritan libels, 126 ; assertione of, concerning Scripture, 130, note. Catharine of Aragon, queen of Henry VIII., his marriage with her, and cause of dislike, 45, and note * ; divorce from, ibid. ; feelings of the nation in her favor. 49. CathoUc religion, presumption of the establishment of the, 450 ; remarks on James the Second's intention to re-establish, 521. Catholics, laws of Elizabeth respecting the, 71-104 ; a proud and obnoxious faction in the reign of Charles I., 331 ; natural enemies to peace, ibid. ; hated by both 716 INDEX. parties, 334 ; Charles I. gave mnch offense by accepting their protfered services, ibid, ; promises of Charles li. to, 426 ; loyalty of, ibid, ; Charles II. 's bias in favor of, Vh ; laws against, enforced in Ireland, 694, 695 ; claim the re-establishment of their reUgion, 704 ; aim at re- voking the Act of Settlement, 706 ; their hopes under Charles II. and James II., ibid, ; their possessions at the end of the seventeenth century, 707 ; severity of the laws against them during the reigns of William III. and Anne, ibid., 708; severe penalties imposed upon them, 708. Cavaliers, ruined, inadequate reUef voted to, 417. ' Cavendish (Richard), proceedings concerning his oflBce for writs, 163, note Cecil, William (Lord Burleigh), his great talents, 72 ; pa- per of, on religious reform, ibid., note ' ; his memo- randa concerning the debates on the succession under Elizabeth, 81, notei ; his conduct concerning Eliza- beth's marriage, 80 ; arguments of, relating to the Archduke Charles and the Earl of Leicester, ibid., note t ; procures an astrological judgment on her mar- riage with the Duke ofAnjou, ibid., note I; favors her marriage with the Archduke Charles, 81, note ' ; sus- pected of favoring the house of Suffolk, 82, and note * ; memorandum of, concerning the Queen of Scots, 84 ; fears of, concerning the nation, 86 ; his proceedings against Mary Stuart restrained by Elizabeth, 88 ; pamphlets of, in defense of EUzabeth, 94, and nou; answered by Cardinal .yien, and supported by .'^tubbe, ibid., note * ; his memorial on the Oath of .Supremacy. 95 ; his advice for repressing of papists, ibid. ; fidelity of his spies on Mary, queen of Scots, 97 ; continues his severity to the papists, 104 ; his strictness over Cam- bridge University, 113, note * ; averse to the severity of Whitgift, 1^ ; his apology for the Puritans, 123 ; his constant pliancy toward ETizabeth, 124 ; his spoliation of Church property, 134 ; project of for raising money, 145 ; interests himself in affairs of private indi\-iduals, i 146, and TWte t ; his policy in doing so, ibid. ; foresight the character of his administration, 146. : Cecil, Robert (Earl of .SaUsbury), his innocence of the gunpowder conspiracy, 232, Twte *. Celibacy of priests, its origin and evils considered, 61, 62, I TWte Census of 1837, result of the, in Ireland, 709, note t. Ceremonies, superstitious, abolished in England, 59. Chambers (Richard), proceedings against, for refusing to pay customs, &c., 243. Chancery, Court of; its practice concerning charitable be- ' quests, 55, note *. ^ Chancery, origin and power of the Court of 198 ; dispute on the extent of its jurisdiction, 198, 199 ; its aboUtion : voted, 373. | Chantries, acts for abolishing, 63 ; disposition of their ! revenues, ibid. Charles I. (King of England), Constitution of England under, from 1625-1629, 215-240 ; favorable features of his character, 215, and note * ; succeeds to the throne in preparations for war, 215 ; privileges of Parliament infringed by, 217, 218; determines to dissolve it, 218, and note * ; demands a loan, and consequent tumult, 219, and note t ; arbitrary proceedings of his council, id. ibid. ; summons a new Parliament, 222, and note J ; his dislike to the Petition of Right, 223, 224; answer concerning tonnage and poimdage, and prorogues the Parliament, 225 ; bis engagement to the Spanish papists I when Prince of Wales, 235 : conditions for his marriage with the Princess Henrietta Maria, 236 ; view of his third Parliament compared with his character, 239 ; Constitution of England under, from 1029-1640,240-290; declaration of, after the dissolution, 241, and Twte * ; his proclamations, 252; proceedings against the city, [ 253 ; offer of London to buUd the king a palace, 254, note J ; principal charges against his government, 254, 255 ; his court, &c., suspected of favoring popery, 270-272 ; supposed to have designed the restoration of Church lands, 275; attempts to draw him into the Romish Church, 278 ; aversion to calling a ParUament, 286 ; vain endeavor to procure a supply from, 287 ; dissolved, 288 ; his means for raising money, 289 ; sum- mons the council of York, ibid.; assents to calling a Parliament ibid. ; Constitution of England under, from 1640-1642, 290-.321 ; his desire of saving Lord Strafford, 297, note * ; recovers a portion of his subjects' confi- dence, 304 ; his sincerity still suspected, 306 ; his at- tempt to seize members of Parliament, 308, notes ; effects of, on the nation, 308 ; his sacrifices to the Par- liament, 313 ; nineteen propositions offered to, ibid. ; powers claimed by, in the luneteen propositions, 314 ; comparative merits of his contest with the Parliament, 314-321 ; his concessions important to his cause, 320 ; his intentions of levying war considered, ibid., note ' ; probably too soon abandoned the Parliament, 320, 321 ; his success in the first part of the civil war, .322 ; his error in besieging Gloucester, ibid. ; affair at Brentford injurious to his reputation, 323 ; his strange promise to the queen, ibid. ; denies the two Houses the name of a ParUament, 325 ; Earls of Holland, Bedford and Clare join, ibid. ; their bad reception, and return to the Par- liament, ibid.; is inferior in substantial force, 326; yeomanry and trading classes general against hiin, 330 ; remarks on the strength and resources of the two par- ties, ibid. ; loses groimd during wiuter, ibid. ; makes a truce with the rebel Catholics, who are beaten at Namptwich, ibid. ; success over Esses in the west, 331 ; summons the Peers and Commons to meet at Ox- ford, ibid. ; vote of Parliament summoning him to ap- pear at Westminster, 332 ; his useless and inveterate habit of falsehood, 334, and note t; does not sustain much loss in the west, 337 ; defeat of at Naseby, 3:{e ; observations on his conduct after his defeat,' ibid. ; surrenders himself to the .Scots, 339 ; reflections on his situation, 340; tideUty to the English Church, ibid.; thinks of escaping, 342 ; imprudence of preserving the queen's letters, which fell into the hands of Parlia- ment, ibid., and note * ; disavows the power granted to Glamorgan, 344; is dehvered up to the Parliament, 345 ; remarks on that event, 346, and nous "i ; offers made by the army to, 3.52 ; taken by Joyce, ibid. ; treated with indulgence, 353 ; his ill reception of the proposals of the army at Hampton Court 35} ; escapes from Hampton Court 356 ; declines passing four bills, ibid. ; placed in solitary confinement ibid. ; remarks on his trial, 362 ; reflections on his execution, charac- ter, and government 363, and note " ; his innovations on the law of Scotland, 411 ; state of the Church in Ireland in the reign of, 694, note t; his promise of graces to the Irish, 698, 699; his perfidy on the occa- sion, 699. Charles II. (King of England), seeks foreign assistance, 375 ; attempts to interest the pope in his favor, ibid. : his court at Brussels, 390 ; receives pledges from many friends in England, 391 ; pressed by the Royalists to land in England, 392 ; fortunate in making no pubhc en- gagement with foreign powers. 393 ; hatred ol the army to, :397 ; his restoration considered imminent early in the year 1660, ibid., and note J ; constitution of the Con- vention Parliament greatly in his favor. 4 oath in the High Commission Court, 1'22 ; at- tacked in the House of Commons, 127. Expulsion, right of, claimed by Parliament, ICQ. Factions of Pym and Vane, 326 ; cause of their aversion to pacilic measures, ibid. ; at Oxford, 331. Fairfax (Sir Thomas), and Oliver Cromwell, superiority of their abiUties for war, 337. Falkland (Henry Carey, lord), account of, 331, note *. Family of Love, said to have been employed by the pa- pists, 78, note t. Feckcnham (John, abbot of Westminster), imprisoned under Ehzabeth, 76, note t. Felton ( ), executed for fixing the pope's bull on the Bishop of London's palace, 87. • Fcnwick (Sir John), strong opposition to his attainder in Parharaent, 564; his imprudent yet true disclosure, ibid. F'erdinand (Emperor of Germany), writes to Elizabeth on behijf of the Enghsh Catholics, 77, and note * ; his Uberal religious policy, ibid., note t. Ferrers (George), his illegal arrest, 157, 158, and note *. Festivals in the Church of England, 227. Feudal rights perverted under Henry VII., 20 ; system, the, introduction of, 657 ; remarks on the probable cause of its decline, 661. Filmer (Sir Robert), remarks oa his scheme of govern- ment, 492. Finch (Heneage), chief-justice of the Common Pleas, ad- viser of ship-money, 248 ; defends the king's absolute power, 251 ; Pariiamentary impeachrscnt of, 315, note *. Fines, statute of, misunderstood, 19. Fire of London, 446 ; advice to Charles on the, ibid. ; pa- pists suspected, ibid. ; odd circumstance connected with, 447, note *. Fish, statutes and proclamations for the eating of, in Lent, 227, note t. Fisher (John, bishop of Rochester), his defense of the clergy, 47 ; beheaded for denying the ecclesiastical su- premacy, 27. Fitiharris (Edward), his impeachment, 482; constitu- tional question on, discussed, ibid., 483. Fitzstephen, his conquests in Ireland, 680. Flanders, books of the Reformed religion printed in, 57. Fleetwood (Lieutenant-general Charles), opposes Crom- well's assuming the title of king, 381 ; the title of lord- general, with power over all commissions, proposed to be conferred on, 386; his character, 393, and note *. Fleming (Thomas), chief baron of the Exchequer, his speech on the king's power, 184. Flesh, statutes, &c., against eating, in Lent, 227. note t. Fletcher (John, bishop of London), suspended by Ehza- beth, 135, note t. Floyd (Mr.), violent proceedings of the ParUament against, 207, 208 ; the infamous case of, conduct of the Com- mons in. 643. Forbes (Sir David), fined by the Star Chamber, 258. Forest laws, enforcement and oppression of, under Charles I., 245, and note * ; extent of forests fixed by act of Parliament, 293. Forfeiture of the charter of London, 486 ; observations on the proceedings on, ibid. I'ortcscue (Sir John), question of his election, 175. Fostering, Irish custom of, explained, 682, note t ; severe penalty against, 684. Vox. (Edward, bishop of Hereford), excites Wolsey to reform the monasteries, 50. Fox (Right Honorable C. J.), his doubt whether James II. aimed at subverting the Protestant estabUshment examined, 521 ; anecdote of, and the Duke of New- castle, concerning secret service money, 636, note t. France, its government despotic when compared with that of England, 162 ; authors against the monarchy of, 163, Tiote * ; pubUc misery of, 609, and note *. Franchise, electire, taken away from the CatfaoUc* of Ireland, 709, and nou t. Francis I. (King of France), his mediation between the pope and Henry VUI., 4b. Francis II. (King of France), display of his pretensions to the crown of England, 83, and note t. Frankfort, divisions of the Protestants at, 105, 106, nou'. Freeholder, privileges of the English, 253 ; under the Saxons bound to defend the nation, 311. French government, moderation of the, at the treaty of Aix la Chapelle, 653. Fresh severities against Dissenters, 451. Fulham, destruction of trees, &c., at the palace of, by Bishop Aylmer, 123, note t. Fuller (Mr.), imprisonment of, by the Star Chamber, 201. Gardiner (Stephen, bishop of Winchester), prevails on Henry VIII. to prohibit the English Bible, 57, nou * ; forms a list of words in it unfit for translation, ibid. ; a supporter of the popish party, 58 ; in disgrace at the death of Henry Vlll., ibid. ; character and virtues ol, 64, note t ; his persecution palliated, 65, note. Garnet (Henry), his probable guilt in the Gunpowder Plot, 232, note *. Garraway and Lee take money from the court for soft- ening votes, 457, and nou *. Garrisons, ancient military force kept in. 311. Gauden (Dr. John), the supposed author of Icon Basilik6, 366, and note *. Gavel-kind, tenure of Irish, explained, 677, 678, and nou * ; determined to be void, 695. Gentry, or land-owners, under the Plantagenets, without any exclusive privilege, 15 ; disordered state of, under Henry VI. and Edward IV., 17 ; of the north of Eng- land, their turbulent spirit, 41 ; repressed by Henry VIII. and the Court of Star Chamber, ibid., and nou ' ; why inclined to the Reformation, 49 ; of England, be- came great under the Tudors, deriving their estates from the suppressed monasteries, 55. George I. (King of England), his accession to the crown, 617 ; chooses a Whig ministry, ibid. ; great disatl'ection in the kingdom, ibid., and jiote t, 618, 7tote ; causes of his unpopularity, 6'22, 62.3 ; Habeas Corpus Act several times suspended in his reign, 623, nou t ; incapable of speaking English, trusted his ministers with the man- agement of the kingdom, 651. George I. and George II. (Kings of England), their per- sonal authority at the lowest point, 652. George II., character of, 652, note *. Geraldines, family ot^the, restored, 687. Gerard (Mr.), executed for plotting to kill CromweU. 376, and note l- Germany, less prepared for a religious reformation than England, 43 ; books of the Reformed religion printed in, 57 ; celibacy of priests rejected by the Protestants of, 62; troops of, sent to quell commotions, ibid., and note t ; mass not tolerated by the Lutheran princes of, 64, and note * ; Reformation caused by the covetous- ness and pride of superior ecclesiastics, 66; war with, Commons' grant for, in 1621, 208. Gertruydenburg. conferences broken off and renewed at 607 ; remark of Cunningham on the, ibid., note *. Glamorgan (Edward Somerset, earl of), discovery of a secret treaty between him and the Irish Catholics, 344 ; certainty ot, confirmed by Dr. Birch, ibid., and 7iou '. Godfrey (Sir Edmondbury), his very extraordinary death, 470; not satisfactorily accounted for, 471, and notes. Godolphin (Sidney, earl of), preser\'e3 a secret connec- tion with the court of James, 611 ; his partiaUty to the Stuart cause suspected, 612. Godstow nunnery, interceded for at the dissolution, 53. Godwin (William), important circumstances, omitted by other historians, respecting the Self denying Ordinance, pointed out by, in his History of the Commonwealth. 338, nou ; his book characterized as a work in which great attention has been paid to the order of time, 346, note *. Gold coin, Dutch merchants fined for exporting, 197. Goodwin (Sir Francis), question of his election, 175, 176, note *. Gossipred, 682. note t ; severe penalty against, 684. Government of England, ancient form of, a Uraited mon- archy, 162-164, and 163, note * ; erroneously asserted to have been absolute, 162 ; consultations against the, of Charles II. begin to be held, 487 ; difficult problem in the practical science of 542 ; always a monarchy Umited by law, 547 ; its preJominating character ari*- tocratical, ibid. ; new and revolutionary, remarks on a INDEX. 723 552 ; Locke and Montesquieu, authority of their names on that subject, 628 ; studious to promote distinguished men, ibid. ; executive, not deprived of so much power by the Revolution as is generally supposed, 650 ; arbi- trary, of Scotland, 667. Government, Irish, its zeal for the reformation of abuses, 684 1 of Ireland, benevolent scheme in the, 695, and note *. Uovemors of districts in Scotland take the title of earls, 657. Ciowrie (Earl of), and his brother, executed for con- spiracy, 667, 668, and note *. (jrafton (Thomas), his Chronicle imperfect, 29, note *. Graham and Burton, solicitors to the treasury, committed to the Tower by the council, and afterward put in cus- tody of the sergeant by the Conunons, 64;j. Granville (Lord), favorite minister of George II., 652 ; bickering between him and the Pelhams, ibid. Gregory XIII., his explanation of the bull of Pius V., 92. Grenville (Right Honorable George), his excellent statute respecting controverted elections, 518. Grey (Lady Catharine), presumptive heiress to the En- glish throne at the beginning of Elizabeth's reign, 79, 148; proceedings of the queen agai!ist her, 82, and note * ; her party deprived of influence by their ignoble connections, 83 ; legitimacy of her marriage and issue, 170 ; present representative of this claim, 171, and note i ; her former marriage with the Earl of Pembroke, ibid. Grey (Leonard, lord-deputy of Ireland), defeats the Irish, 687. Grey (Sir Arthur), his severity in the government of Ire- landi^ 691. * Griliin ( ), Star Chamber information against, 256, note X' Grimston (Sir Harbottle), extract from his speech, 396, note t ; elected speaker, 403, and note *. Grindal (Edmund, bishop of London), his letter concern- ing a private priest, 74. Grindal (Edmund, archbishop of Canterbury), prosecutes the Puritans, 118 ; tolerates their meetings called " prophesyings," 120 ; his consequent sequestration and independent character, 120, 121. and note *. Gunpowder Plot, probable conspirators in the, 232, and note *. Habeas Corpus, trial on the right of, 220-222, 224, 241 ; act of, first sent up to the Lords, 456 ; passed, 500, and note t ; no new principle introduced by it, 500 ; power of the Court of Common Pleas to issue writs of, ibid., and note ' ; particulars of the, ibid. ; its eft'ectual reme- dies, 501. Hale (Sir Matthew), and other judges, decide on the il- legality of fining juries, 498 ; his timid judgment in cases of treason, 578. Hales (John), his defense of Lady Catharine Grey, 82, and note t ; his character and Treatise on Schism, 280. Hales (Sir Edward), case of, 526, 527. Halifax (George .Savile, marquis of), gives offense to James II., 519 ; Declaration of Rights presented by, to the Prince of Orange, 548 ; retires from power, 533. Hall (Arthur), proceedings of Parliament against, 160, and note * ; famous case of, the first precedent of the Commons punishing one of their own members, 160, 637. Hall (Edward), his Chronicle contains the best account of the events of the reign of Henry VllL, 22, note * ; his account of the levy of 1525, 23, note *. Hall (Dr. Joseph, bishop of Exeter), his defense of Epis- copacy, 274, note *. Hamilton (James, duke of), engaged in the interest of the Pretender, 614 ; killed in a duel with Lord Mohun, ibid. Hampden (John), levy on, for ship-money, 248, and note * : trial of, for refusing payment, 248-252, and notes; mentioned by Lord Strafibrd, 266. Hampton Court conference with the Puritans, 173. Hanover, settlement of the crown on the house of, 591 ; limitations of the prerogative contained in it, ibid., and note * ; remarkable cause of the fourth remedial arti- cle. 592. Hanover, the house of, spoken of with contempt, 615, and note * ; acquires the duchies of Bremen and Verden in 1716, 62:j. Hanoverian succession in danger from the ministry of Queen Anne, 614, and note *, 615. Harcourt (Simon, lord-chancellor), engaged in the inter- est of the Pretender, 614. Harding's case, constructive treason in, 576, and notes tj. Hardwicke (lord-chief- justice), his arguments in opposing a bill to prevent smuggling, 649. Uarley (Sn- Robert), Puritan spoliations of, 304, and note t. Ilarley (Robert, earl of Oxford), his censure on the Par- Uamentary proceedings against Floyd, 208, note t. Ilarmer, his valuation of monastic property in England, 50, 54, note *. Harrington (Sir John), notice of James I. by, 172, note *. Hatton (Sir Christopher), his lenity toward papists, 103, and note f ; an enemy to the Puritans, 122 ; his spolia- tion of Church property, 134 ; attempt to assassinate, 143 ; his forest amercement, 245. Heath (Robert), attorney-general, his speech on the case of habeas corpus, 221 ; on the Petition of Right, 241 ; denies the criminal jurisdiction of Parhament, ibid. Heath (Thomas), seized with sectarian tracts, 78, note t. Henrietta Maria (queen of Charles I.), conditions of her marriage with him, 236 ; letter of, concerning the reli- gion of Charles I., 277, note * ; her imprudent zeal for popery, 306, 7tote + ; fear of impeachment^ ibid., note^'i sent from England with the crown jewels, 315, and note * ; Charles the First's strange promise not to make any peace without her mediation, 323, 324 ; im- peachment of, for high treason, the most odious act of the Long Parliament, 324 ; her conduct, 339 ; and ad- vice to Charles, ibid. ; writes several imperious letters to the kina 341 ; forbids him to think of escaping, 342, and note T ; ill conduct of, 342 ; abandons all regard to English interest, ibid. ; plan formed by, to deliver Jersey up to France, ibid. ; power given her by the king to treat with the Catholics, 343 ; anecdote of the king's letters to her, ibid., note. Henry II. (King of England), institutes itinerant justiceti 16 ; invasion of Ireland by, 679. Henry VI., clericai laws improved under, 44. Heiiry VII, (King of England), state of the kingdom at his accession, 17 ; Parliament called by, not a servile one, ibid. ; proceedings for securing the crown to hia posterity, ibid. ; his marriage, and vigilance in guarding the crown, made his reign reputable, but not tranquil, ibid. ; statute of the 11th of, concerning the duty of al- legiance, ibid. ; Blackstone's reasoning upon it errone- ous, that of Hawkins correct, ibid., note t ; did not much increase the power of the crown, ibid. ; laws enacted by, overrated by Lord Bacon, 18 ; his mode of taxation, 19 ; subsidies being unpopular, he has re- course to benevolences, 20 ; and to amercements and forfeitures, ibid. ; made a profit of all offices, even bishoprics, ibid. ; wealth amassed by him soon dissi- pated by his son, 21 ; council court formed by, existing at the fall of Wolsey, 41 ; not that of Star Chamber, nor maintainable by his act, ibid,, note * ; his fatal suspi- cion, 43 ; enacts the branding of clerks convicted of felony, 44 ; probable pohcy of, in the marriage of Henry Vlll., 45, and note t ; low point of bis authority over Ireland, 685 ; confined to the four counties of the Enghsh pale, ibid. Henry VIII., his foreign policy, 21 ; his profusion and love of magnificence, ibid. ; acts passed by, to conciU- ate the discontents excited by his father, ibid. ; exten- sive subsidies demanded of ParUament by him, ibid. ; exaction by, miscalled benevolence, in 1525, 22, 23 ; in- stance of his ferocity of temper, 27, 28, 29 ; reilectiong on his government and character, 32 ; did not concih- ate his people's aftections, ibid. ; was open and gener- ous, but his foreign politics not sagacious, ibid. ; mem- ory revered on account of the Reformation, ibid. ; was uniformly successful in his wars, ibid. ; as good a king as Francis I., ibid., note * ; suppresses the turbulence of the northern nobility, ic, ibid. ; Star Chamber in full power under, 42, 7iote * ; his intention of behead- ing certain members of Parliament, 42 ; fierce and lavish eft'ects of his wayward humor, 43 ; religious con- tests the chief support of his authority, ibid. ; Lollards burned under, ibid. ; controversial answer to Luther, 44 ; ability of, for religious dispute, ibid., note t ; appa- rent attachment of, to the Romish Church, 45 ; his marriage, and aversion to Catharine of Aragon, ibid, ; time of his maniage with Anne Boleyn, 46, and note * ; sends an envoy with his submission to Rome, ibid. ; throws off its authority on receiving the papal sen- tence, 46 : his previous measures preparatory to doing so, 47 ; takes away the first fruits from Rome, 48 ; be- comes supreme head of the EngUsh Church, ibid., and note * ; delays his separation from Queen Catharine, from the temper of the nation, 49 ; expedient concern- ing his divorce, ibid. ; proceeds in the Reformation from policy and disposition, 50 ; the history of his time 724 INDEX. written with partiality, ibid., note * ; not enriched by the revenues of suppressed monasteries, 53 ; his alien- ation of their lands beneficial to England, ibid. ; should have diverted rather than have confiscated their rev- enues, ibid. ; doubtful state of his reUgious doctrines, and his inconsistent cruelty in consequence, 56 ; sanc- tions the principles of Luther, ibid. ; bad poUcy of his persecutions, ibid. ; prohibits the reading of Tyndale'a Bible, 57, note * ; state of religion at his death, 58 ; his law on the cehbacy of priests, 62 ; his Reformed Church most agreeable to the English, 69, note * ; his pro- visions for the succession to the crown, 79 ; supports the Commons in their exemption from arrest, 1.58 ; his vrill disposing of the succession, 169 ; doubt concerning the signature of it, ibid. ; account of his death, and of that instrument, ibid., note ' ; disregarded on the ac- cession of James, 172 ; institution of the Cojuicil of the North by, 262. Henry IV. (King of France) opposes the claim of Arabella Stuart on the EngUsh crown, 168, note. Henry (Prince of Wales, son of James I.), his death ; suspicion concerning it, 202, note * ; design of marry- ing him to the Infanta, 204, and note *. Herbert (Edward, lord of Cherbury), fictitious speeches in his History ojf Henry VIII., 21, note t. Herbert (Chief-justice), his judgment in the case of .Sir Edward Hales, 527 ; remarks on his decision, ihid. ; reasons of his resignation, 550, note Heresy, canon laws against, framed under Edward VI., 67, note t. Hertford (Edward Seymour, earl of), his private mar- riage with Lady Grey, 82 ; imprisonment and subse- quent story of ibid., and note ' ; inquiry into the legiti- macy of his issue, 170, and notes t't ; Dugdale's ac- count of it, 171, note *. Hexham Abbey, interceded for at the dissolution, 53. Heyle, Sergeant, his speech on the royal prerogative, 154, notel. \ Heylin (Dr. Peter), his notice of the Sabbatarian Bill, 229, note I ; his conduct toward Prynne, 259. I Heywood (Mr. Sergeant), extract Srom his Vindication ' of Mr. Fox's History, 521, note *. High Commission, Court of, 1583, its powerful natur . 122, and ?iote * ; act for abolishing the, 292, and note High and low churchmen, their origin and description, 586, note I, 623. Histriomastiz, volume of invectives so called, 259. Hoadley (Benjamin, bishop of Bangor), attacked by the Convocation, 625 ; his principles, ibid. Hobby (Sir Phihp). recommends the bishop's revenues being decreased, ()3, note *. Hobby (Sir Edward), his bill concerning the Exchequer, 152. Holingshed (Raphael), his savage accot;nalty for, and imprisonments, probably illegal, ibid., note t. Massacre of the Scots and English in Ulster, 702, and note t. Massachusetts Bay, granted by charter, 270. Massey, a Cathohc, collated to the deanery of Christ Church, 528, and note t. Matthew's Bible, 1537, Coverdale's so called, 57 ; notes against popery in, ibid., note *. Maximilian, his religious toleration in Germany, 77, and note t ; said to have leagued against the Protestant faith, 87, and Twtc *. Mayart (Sergeant), his treatise in answer to Lord Bolton, 710. Mayne ( ), persecution of, for popery, 91. Mazure (F. A. J.), extracts from his Histoirc de la Rerolur tion, relating to James II. and the Prince of Orange, 530, noi.e\, 531, note * ; to the vassalage of James II. to Louis XIV., 536, note t ; another extract concerning James II, 's order to Crosby to seize the Prince of Or- ange. 563, note * ; his account of the secret negotiations between Lord Tyrconnel and the French agent Bon- repos, for the separation of England and Ireland, 707, note *. Melancthon (Philip), his permission of a concubine to the Landgrave of Hesse, 49, note t : allowed of a hmited episcopacy, 66 ; declared his approbation of the death of Servetus, 79, note '. Melville (Andrew), and the General Assembly of Scotland, restrain the bishops, 663 ; some of the bishops submit, ibid. ; he is summoned before the council for seditious language, ibid. ; flies to England. 664. Members of Parliament, free from personal arrest, 176, 638, 6.39. Merchants, petition on grievances from Spain, 183, note; petition against arbitrary duties on goods, 183. Merchandise, impositions on, not to be levied but by Par- liament, 18,3: book of rates on, published, 185. Michele (Venetian ambassador), his slander of the Eng- lish, 69, note * ; states that Elizabeth was suspected of Protestantism, 71, note. -Michcll ( ), committed to the Tower by the House of Commons, 205. Middlesex (Lionel Cranfield, earl of), hia Parliamentary impeachment 213, and note Military force in England, historical view of, 309-312, and notes. Mihtary excesses committed by Maurice and Goring's armies, .336, and TWtcs *t ; by the Scotch, 336. Military power, the two effectual securities against, 573 ; always subordinate to the civil, 635. Militia, dispute on the question o^ between Charles I. and the Parliament, 309, and nou .312; it« origin, 834; considered as a means of recruiting the army, 635 ; es- tablished in Scotland, 668. Millenary Petition, treatment of, by Jamee I., 173, and note t. Ministers of the crown, responsibility of 463, 619, note t ; necessity of their presence in Parliament. .596. Ministers, mechanics admitted to beneticcs in England, 112 ; early Presbyterian, of Scotland, were eloquent, learned, and zealous in the cause of the ileformation, 063; their influence over the people, ibid.; interfere with the civil pohcy, ibid. Mist's Journal, the printer Mist committed to Newgate by the Commons for libel in, 644. Mitchell, confessing upon promise of pardon, executed in .Scotland at the instance of Archbishop .Sharp, 669. Molyneux, his celebrated " Case of Ireland's being bound by Acts of Parliament in England slated," 710; resolu- tions of the House of Commons against his book, ibid. Mompesson (Sir Giles), his patents questioned, 205. Monarchy of England limited, 13 ; erroneously asserted to have been absolute, 162. Monarchy established, tendency of the English govern- ment toward, from Henry VI. to Henry VIII., .38 ; not attributable to military force, ibid. ; abolished, 366 ; ex- traordinary change in our, at the Revolution, 546, and note * ; absolute power of detioed, 650. Monasteries, their corruptions exposed by the visitations of, 50 ; resignation and suppression of. 51 ; papal buU for reforming, ibid., note t ; act reciting their vices, ibid., note *; feelings and effects of their suppression, 52; might lawfully and wisely have been abolished, ibid., 53 ; several interceded for at the dissolution, 53 ; evils of their indiscriminate destruction, ibid. ; immense wealth procured by their suppression, ibid., 54, and note * ; how bestowed and distributed, 51, and note ' ; alms of the, erroneously supposed to support the poor, 55 ; in Ireland, in the seventh and eighth centuries, learning preserved by, (>79. Monastic orders averse to the Reformation, 49, 50 ; their possessions great, but unequal, .50, and note f ; evils of, in the reign of Henry VIII., 50; reformed and sup- pressed by Wolsey, ibid., and note t ; visitations of the, truly reported, 51 ; Protestant historians in favor of, ibid., note t ; pensions given to the, on their suppression, 52, and riote *. Money bills, privilege of the Commons concerning, 162 ; ancient mode of proceeding in, discussed, .5<^. Monk (General George), his strong attachment to Crom- well, 393 ; his advice to Richard Cromwell, 394 ; ob- servations on his conduct, ibid., and note t ; takes up his quarters in London, 395 ; his first tender of service to the king, 396 ; can hardly be said to have restored Charles II., but did not oppose him so long as he mi^ht have done, ibid., note t ; not secure of the army, 397 : represses a mutinous spirit, and writes to the gentry of Devon, ibid., and note i; his slowness in declaring for Charles, 398 ; urges the most rigid hmitations to the monarchy, 399; suggests the sending the king's letter to the two houses of ParUament, ibid. ; his char- acter, 404, 405 ; advises the exclusion of only four reg- icides from the Act of Indemnity, 405, 406. Monks, pensions given to, on their suppression, 52, and note Monmouth (James, duke of), remark on the death o£ 534, and note *. Monmouth's rebeUion, numbers executed for, 529, 530, TWte *. Monmouth (town), right of election extended to. 514. Monopohes, nature of, 1.53, 154 ; victorious debate on, in the House of Commons, 154 ; Parliamentary proceed- ings against, 205, 206. Montagu (.4bbe), committed by the Commons for pub- lishing a book, 643. Montagu (Dr. Richard, bishop of Chichester), his Roman Catholic tenets, 272, 273 ; his intrigues with Panzani, 276, 277. Montagu (Lord), his speech in the House of Lords against the statute for the queen's power, 75, 76, and note* ; brings a troop of horse to Eliliabeth at Tilbury, 101, and note *. Jlonteagle (Lord), his suit with the Earl of Hertford, 170, and note Montreuil. his opinion on the plan of flight contemplated by Charles I., 338, note * ; negotiation of, 342, and note *. Mordaunt (Lord), charges against, 443. More (Sir Thomas), opposes the granting a subsidy to Henry VII., 19, note t ; his conduct upon another mo- tion for a large grant, 21, 23 ; apology for his proceed- INDEX. 729 ing3 against Wolscy, 25 ; beheaded for denying the ' king's ecclesiastical supremacy. 27, 28 ; inclined to the ' divorce of Henry VIII., 48, and 7iotc *. Morgan (Thomas), his letter to Mary Stuart, 99, note*. Morice ( , attorney of the Court of Wards), attacks / the oath ez officio, 128; his motion on ecclesiastical abuses, 153 ; his imprisonment and letter, ibid. ' Mortmiiin, effect of the statutes of on the clergy, 50. 1 Morton (.lohn, archbishop of Canterbury), his mode of > soUciting benevolences, called " Morton's fork," 20 ; his charge against the abbey of St. Alban's, 51, note t. Mortuaries, fees of the clergy on, limited, 47. Mountnorris (Lord), conduct of Lord StraUbrd to, 263, and note *. Moyle (Walter), his Argument against a Standing Army, 568, note *. Murderers and robbers deprived of the benefit of clergy, 44 ; the question of pardons to, considered, 549, note J. Murray (William), employed by King Charles to sound the Parliamentary leaders, 341. i Murray (Mr. Alexander), arbitrary proceedings of the Commons against him, 642, 643 ; causes himself to be brought by habeas corpus before the King's Bench, 646. Mutiny Bill passed, 573. Naaeby, defeat of Charles I. at, 338 ; consequences of, ' ibid. Nation, state of the, proposition for an inquiry into the, 571. National antipathy to the French not so great before the reign of Charles 11., 455. National debt at the death of William III., 565, note * ; rapid increase of the, 608. Nations, three, and tliree reUgions, in Ireland, 709. Naval transactions in the reign of William 111., 567. Navy of Charles I., reasons for increasing, 246. Neal (Daniel), his History of the Furitaiis and Answer to : Bishop Mador, 125. note t ; statement of the Puritan controversy tmder EUzabeth, ibid. \ Netherlands, Charles I. negotiates with the disalfected in i the, 246. Neville (.Sir Henry), his memorial to James I. on sum- moning a Parliament, 195. Newark, charter granted to, enabling it to return two members, 514. Newbury, battle of, its consequences to the prevaiUng party, 327. Newport, treaty of, 357 ; observations on the, 358, and note. News, to publish any, without authority, determined by the judges in 1680 to be illegal, 496, and note t- Newspapers, their great circuliitiou in the reign of Anne, C54 ; stamp duty laid on, ibid. Neylc (Dr. Richard, bishop of Lichfield), proceedings of the House of Commons against, 196. Nicolas (Henry), a fanatic leader, 78, note t. Nicolas (Sir Harris), notice of his " Proceedings and Ordi- nances of the Privy Council of England," 41, note *. Nimeguen, treaty of, hasty signature of the, 463. Nine, Council of 383, and note *. Noailles (ambassador in England from Henry II. of France), his conduct secures the nationid independ- ence, 37, note § ; unpopularity of Queen Mary report- ed by, 68 ; his account of her persecutions, 70, note t. Noailles (Marshid de), extract from his memoirs relating to Philip of Anjou, 607, note *. Nobility, pliant during the reign of Henry VIII., 38 ; re- sponsible for various illegal and sanguinary acts, ibid. ; of the North, repressed by Henry Vlll. and the Court of Star Chamber, 41 ; why inclined to the lleformation, 49; of England, become great under the Tudors, de- riving their estates from the suppressed monasteries, 55 ; averse to the bill against the celibacy of priests, 62 ; and to the Reformation, ibid. ; such advanced into power under Mary, 68, 69 ; censured, &c., for reliinoa under that queen, 69, note * ; combination of the Cath- olic, for Mary Stuart, 85. Non-conformists, Protestant, laws of EUzabeth respect- ing, 105-136 ; summoned and suspended by Archbishop Parker, 110; number of in the clergy, 112, note t; de- prived by Archbishop Whitgift, 121. and note I; in- creased under Elizabeth, 135 ; remarks on acts against, 430; avail themselves of the toleration held out by James II., 534. Non-jurors, schism of the, its beginning, 551 ; send forth numerous libelous pamphlets, 623. Non-resistance preached by the clergy, and enforced in the Homilies, 238, and note * . Norl'olk (Thomas Howard, duke of), his letter to Wolsey on the grant of 1.525, 22, note * ; letter of the council to, during the Rebellion, 28, note * ; combines with the Catholic peers against Cecil, 82, note J. Norfolk (John, lord Howard, duke of), confidential min- ister of Henry Vlll., ruined by the intiuence of the two Seymours; execution prevented by the death of Henry, 29 ; continued in prison during Edward's reign, and is restored under Mary, ibid. ; prevails on Ueury Vlll to prohibit the English Scriptures, 57, note * ; a supporter of the popish party, 58 ; in prison at the death of Henry VIII., ibid. ; proposed union of, with Mary Stuart, 85 ; character, treason, and trial of Miid. Norfolk, county of assists to place Mary on the throne, and suftt?r8 greatly from persecution, 68, and noteX; Parliamentary inquiry into the returns for, 161. Norman families, great number of settle in Scotland, and become the founders of its aristocracy, 657. North of England, slow proaress of the Reformation in, 62; council of the, its institution and power, 262 ; act for abolishing, 292. and note J. North (Chief justice), proclamation drawn up by, against petitions, 480. North and Rich (sheriffs), illegally put into office, 489. Northampton (Henry Howard, earl of), declines to for- ward the merchants' petitions against Spain. 182. Northampton, payment of ship-money complained of in, 285, note ||. Northumberland (Algernon Percy, earl of), his connec- tion with the gunpowder conspiracy, 233, note ; and others, take measures against a standing army, 447. Norton (Mr.) his defense of the bill against non-resident burgesses. 156, 157. Nottingham (Daniel Finch, earl of), holds offices of trust under William III., 552 ; unites with the Whigs against the treaty of peace, 627. Nowell (Alexander), Parliamentary inquiry into his elec- tion, 161. Noy (William), discovers an early tax imposed for ship- ping, 246. " Nuisance," introduction of this word into Uie Irish bill, 526, note *. Oath, called ex officio, in the High Commission Court, 122 ; attacked hi the House of Commons, 128 ; admin- istered to papists under James I., 233 ; to the clergy, 1640, 301 ; of Abjurarion, 598. October Club, generally Jacobites, 614. CEcolampadius (John), his doctrines on the Lord's Sup- per, 61. Offices, new, created at unreasonable salaries, as bribes to members of Parliament, 595. Officers of the crown, undue power exerted by, 14. O'Neil, attainted in the Parliament of 1569, and his land forfeited to the crown, 696. Onslow (Speaker), his assertion of the property of the subject, 163. Opposition to the court of Charles II., 420. O'Quigley (Patrick), his case compared with Ashton'fi, 579. Orange (William, prince of), declares against the plan of restrictions. 478 ; remarks on his conduct before the Revolution, 529 ; derived great benefit from the re- bellion of Monmouth. 530; overtures of the malcon- tents to, .531 ; receives assurances of attachment from men of rank in England, 537 ; invitation to him, ibid., and note f ; his design of forming an alliimce against Louis XIV., .540 ; requested to take the administration of the government of England upon himself 543 ; vote of the Convention, declaring him and the Princess of Orange king and queen of England, 546. Ordinance, a severe one of Cromwe.l, 412. Ordinance, Self-denying, judiciously conceived, 337, and # note *. Origin of the present regular army, 411. Orkney (Countess of), receives large griUits from William III., 569. Orleans (Duchess of), sister of Charles II., her famous journey to Dover, 449. Orleans (Duke of), favors the Pretender, 62.3, note {. Ormond (Duke of), engaged in the interests of the Pre- tender, 613, and note * ; his unpopularity with the Irish Catholics, 706. Ormond (James Butler, marquis of), sent to England by Charies II., .390. Orrery (Roger Boyle, earl of), a Cathohc, 451. Overbury (.Sir Thomas), his murder, 202 ; examination of 203, note *. Oxford (Univer.sity of), measure adopted to procure its judgment in favor of Henry the Eighth's divorce, 49 ; 730 INDEX. attached to popery. 112, -JiJ note t; proceedings on doctrine of non refiistance, 238, and note * ; decree of the, against pernicious books, 493; opposes the meas ures of James 11., 534, 535 ; tainted with Jacobite prej- udices, i>M, and note *. Oxford, short l';irhament held at, in March, 1681, 483. Oxford (.lohn De Vere, earl of), tined for his retainers, 20 ; censured by Queen Mary's council for his rehgion, 69, note *. Oxford (Robert Harley, earl of), sends Abb6 Gaultier to Marshal Berwick to trcatof the Ilestoration, 612 ; prom- ises to send a plan for carrying it into eflect, ibid. ; ac- count of pamphlets written on his side, iOid., note t, 613, note; hated by both parties, 617; impeaciied of high treason, 618 ; committed to the Tower, 619 ; impeach- ment against him abandoned, ibid.^ and TWte t ; his speech when the articles were brought up, 619. I Paget (William, first lord), his remark on the doubtful state of religion in England. 63, note ' ; advises the send- ' ing for German troops to quell commotions, ibid. ; his j lands increased by the bishopric of Lichfield, 63. i Palatinate, negotiation of Charles I. for its restoration, 246, ' 247. j Palatine jurisdiction of some counties under the Planta- genets. 16. Pale, old English of the, ill disposed to embrace the Re- formed religion in Ireland, 692 ; deputation sent from Ireland to England, in the name of all the subjects of the, 693 ; delegates from, conamitted to the Tower, ibid., and note Palgrave, Sir Francis, notice of his "Essay upon the Original Authority of the King's Council," 41, Twte Pamphlets, account of some in the reign of Charles and ' James II., 584, note *, 535, note ; and poUtical tracts, ! their character and influence on the pubhc mind at the commencement of the last century, 654. Panzani, a priest, ambassador to Charles I., 271 ; his re- port to the pope of papists in England, 276, note. Papists proceeded against for hearing mass, 74 ; tracts and papers to recall the people ot England to their faith, 7o, and note J. Papists of England, the Emperor Ferdinand's intercession for, 77 ; subsequent persecution of, 77, 78, and notes ; attended the English Church, 78 ; combinations of, under Ehzabeth, 84 ; more rigorously treated, and emi- gration of, 88, note J: ; their strength and encourage- ment under Elizabeth, 90 ; emissaries from abroad, numbers and traitorous purposes of, 90, 91 ; executed for their reUgion under Elizabeth, 91 ; concealment of their treacherous purposes, 94 ; Lord Burleigh's pro- visions against, in the Oath of Supremacy, 95, 96 ; his opinion that they were not reduced by persecution, but severity against, productive of hypocrites, 95; petition against the banishment of priests, 96 ; heavy penalties on, 97, and 7iote * ; the queen's death contemplated by, ibid. ; become disatlVcted to Elizabeth, ibid., note * ; excellent conduct of, at the Sp;inish invasion, ibid., note *, 101, note * ; dej)ressod state of, 101 ; continued persecution of, between 1588 and 1603, ibid., and note ' ; statute restricting their residence, 101 ; executed for safety of the government, and not their religion, 102 ; their simple behef construed into treason, ibid. ; the nature of their treason considered, ibid., note * ; pro- portion o£ in England, under Elizabeth, 108, note t ; excluded from the House of Commons, 116; treatment of, imder James I., 2:Jl-237, and notes ; state and in- dulgence of, under Charles I., 236, and note ^, 237, note, 270, 271 ; inclined to support the king, 271, and note 1 ; report of, in England, by Panzani, 276, note " ; contri- butions raised by the gentry, 285. Parker (Matthew), made Archbishop of Canterbury, 72, note]; his Uberal treatment of Bishop Tunstall, 76, nou t ; his consecration admitted, ibid., note J ; his sen- tence against Lady Grey, 82 ; his advice against Mary, queen of Scots, 88 ; speech of, against the papists, 89 ; defends the Church Liturgy and ceremonies, 107, 110, 113, and note * ; EUzabetR's coarse treatment of his wife, 107, note J; his order for the discipline of the clergy, 110, 7tote f ; summons Non-conformists, 110; orders certificates of the clergy, 112, note * ; discussion of Church authority with Mr. Wentworth, 117 ; prose- cutes the Puritans, 118 ; suppresses their " prophesy- ings," 120 ; defends the title of bishops, 134, note '. Parker (Samuel, bishop of O.Tford), account of his His- tory of his Own Time, 452, note t. ParliaInen^ the present constitution of, recognized in the leign of Edward II., 14; of Henry VII. secure the crown to his posterity, 17 ; anxious for his union with Elizabeth of York, ibid. ; power of the privy coancil over the members of, 42; struggles ot; against the crown, ibid. ; complaint of the House of Commons against Fisher, 47 ; divorce of Henry VIII. brought be- fore the houses of, ibid. ; addresses of, moved for Henry VIII. to receive back Queen Catharine, 49; in- fluence of the crown over, 155 ; statutes for holding, 291, and note * ; enormous extension of its privileges, 315, 316, and note * ; few acts of justice, humanity, gen- erosity, or of wisdom from, manifested by, from tneir quarrel with the king to their expulsion, 321, 322 ; de- ficient in military force, 323 ; offers terms of peace to Charles I. at Newcastle, 340 ; deficient in pohtical cour- age, 352 ; eleven members charged with treason, ibid. ; duration of^ proposed, 355 ; has no means to withstand the power of Cromwell, 368 ; is strongly attached to the Established Church, 371 ; new one called decidedly Royalist, 417; its implacable resentment against the sectaries, 428 ; session of, held at Oxford in 1665, 430 ; tendency of long sessions to form opposition in. 433 ; supphes granted by, only to be expended for specific objects, 434 : strenuous opposition made by, to Charles II. and the Duke of York, 450 ; Convention dissolved, 558; its spirit of inquiry after the Revolution, 570; annual assembly of, rendered necessary, 573 ; its mem- bers influenced by bribes, 594 ; its rights out of danger since the Revolution, 596 ; influence over it by places and pensions, 635, 636; its practice to repress disor- derly behavior, 637 ; assumed the power of incapacita- tion, &18 ; debates in, account of their first pubUcation, 6.55 ; their great importance, ibid. ; seat in, necessary qualification for, 656, 657. Parliament of 1685, remarks on its behavior, 520. Parhament (Convention), accused of abandoning pubhe liberty at the Restoration, 400 ; pass several bills of im- portance, 400. Parhament (Long), called back by the council of officer*, 389 ; expelled again, ibid. ; of seventeen years' dura- tion dissolved, 473, and note \ ; long prorogation of, AT^. Parliaments, probable effect of Wolsey's measures for raising supphes without their intervention, 22-24 ; bili for triennial, 573 ; for septennial, 620. Parliament of Scotland, its model nearly the same as that of the Anglo-Norman sovereigns, 657 ; its mode of con- vocation, 658 ; law enacted by James I. relating to, ibid. ; royal boroughs in the fifteenth century, 659 ; its legis- lative authority higher than that of England, 660 ; sum- moned at his succession by James H., acknowledgcii the king's absolute power, 670. Parhament of Ireland, similar to an English one, 683 ; its constitution, 698 ; meet in 1634 ; its desire to insist on the confirmation of the graces, 700 ; opposition in the, to the crown, 708 ; in 1661, only one Cathohc returned to, ibid. Parliament of the new Protestant nation of Ireland al- ways Whig, 710. Parliamentary Party (old), assemble to take measures against a standing array, 447. Parliamentary privilege, observations respecting, 648, note *. Parry (Dr. William), executed for a plot against Eliza- beth, 97 ; account of him, ibid., note t. Parry (Dr.), committal and expulsion ot by Parhament 160. Parry (Thomas), his letter concerning the papists under James I., 232. note *. Parsons (Sir WUUam), and Sir John Borlase (lords-jus. tices), succeed Lord Strafford in the government of Ireland, 702. Partition treaty. Earl of Portland and Lord Somers the only ministers proved to be concerned in the. 593. 594. Party (Moderate), endeavor to bring about a pacification with Charles, 322 ; negotiation with the king, broken off by the action at Brentiord, 323 ; three peers of the, go over to the king, 325. Passive obedience (doctrine of), passed from the Homi- hes into the statutes, 420 ; remarks on the doctrine of, 491. Paul IV. (Pope), his arrogant reply to the message of Ehzabeth, 71, 72, and note *, 74. Paulet (Sir Amias), his honorable and humane conduct to Mary Sf -art, 99, noU Peacham (Rev. ), prosecution of, for a hbelous ser- mon, 197, 198. Pearce (Dr. Zachary. bishop of Rochester), his right to a seat in Parliament after resigning his see, .52. note *. Peasantry of England under the Plantasenets, 15. Peers of England, under the Plantagenets. a small body. 15 ; their privileges not considerable, ibid. ; disordered INDEX. 731 state of, under Henry VI. and Edward IV., 17; au- thority and influence of abbots, &c., in the House of, oO : freedom of the, from the Oath of Supremacy, 75 ; their interference with elections opposed, 357; pro- ceedings of James I. against, for conduct in ParUament, 211, 212, note * ; not of the council could not sit in the Star Chamber, 255, note. Peerage of England, probably supported the Commons against the crown, 42. Peerages, several conferred on old Irish families, 687. Peerage Bill, particulars of the, 621. Pelhams (the), resign their offices, and oblige George II. to give up Lord Granville, 652. Pemberton (Sir Francis, chief justice), unfair in all trials relating to popery, 472 ; his conduct on the trial of Lord Russell, 488. Pembroke (WilUam Herbert, earl of), peers' proxies held by. 217, note '. Pembroke (Philip Herbert, carl of), sits in tlie House of Commons, 368. Penal statiites, power of the crown to dispense with, 453 ; severity of the, 454 ; laws enforced against some un- fortunate priests, 481, and note * ; against Catholics in Ireland, 707, 708. Penruddock enters Salisbury, and seizes the judge and sheriff", 376, and note §. Penry (John. Martin Mar-prelate), tried and executed for Ubels against Queen Elizabeth, &c., 124, and note *. 138. Pensioners, during the pleasure of the crown, excluded from the Commons, 597. Pepys (Samuel), his Diary, cited concerning Lent, 227, note t, 228, note ; extract from, concerning money ex- pended by Charles II.. 435, yiote *. Permanent military force, national repugnance to, 633 ; its number during the administration of ,Sir Robert Walpole, ibid. (See Army, and .Standing Army.) Perrott (Sir John), his justice in the government of Ire- land, 691, 692 : falls a sacrifice to court intrigue, 692. | Persecution, religious, greater under Charles II. than du- ' ring the Commonwealth, 432. Persons (Father), his book on the succession to the En- j glish crown, 166, note t ; his Leicester's Commonicealtk, ' 167, 7wte. Petition of Right, its nature and proceedings in, 223-225, and notes, 241. Petition and Advice, particulars of the, 381 ; empowers Cromwell to appoint a successor, 385. Petitions, law relating to, 419 ; for the meeting of Parlia- ment checked by a proclamation of Charles II., drawn up by Chief-justice North, 480; interfering with the prerogative repugnant to the ancient principles of our monarchy, ibid. Petre (Father), with a few Catholics, takes the mjinage- ment of affairs under James II., 528, and note t ; James II.'s intention of conferring the archbishopric of York on, 535, and note Petty (Sir WiUiam), his account of the land forfeited and restored in Ireland, 705, note J, 706, note *. Philip II. (King of Spain), his temptation to the English to dethrone Elizabeth, 167, note. | Philopater (Andreas Persons), his account of the con- federacy against Cecil, 82, note J ; justifies deposing a 1 heretic sovereign, 93, note. \ Pickering (Lord-keeper), his message to the House of j Commons, 153. I Pierpoint (Henry, lord), hopes to settle the nation under Richard Cromwell, 386 ; his aversion to the recall of Charles II., 398. j Pitt (William, earl of Chatham), the inconsistency of his political conduct, 653. Pius IV. (Pope), his embassy to Elizabeth, 74 ; modera- tion of his government, 75 ; falsely accused of sanction- ing the murder of Elizabeth, ihid., note &. Pius V. (Pope), his bull deposing Elizabeth, 85, 86 ; most injurious to its own party, 87 ; his bull explained by- Gregory XIII., 92. Place BiU of 1743. 636, and note *. Plague in 1665, 446. Plan for setting aside Mary, princess of Orange, at the period of the Revolution, 530, and note *. Plantagenets, state of the kingdom under the, 14-16 ; priv- ileges of the nation under the, 15 ; \iolence used by their officers of the crown, ibid. ; inconsiderable priv- ileges of the peers, gentry, and yeomanry, ibid. ; their courts of law, 16 ; Constitution of England under the, 166. 293 : conduct of, with regard to the government of Ireland, 686. Plays and interludes, satirizing the clergy, 58 ; suppression of plays reflecting on the conduct of the king, 212, note *. Pleadings, their nature and process explained, 15, note *. Plunket (titular archbishop of Dublin), executed, 485, and note t ; sacrificed to the wicked policy of the court, ibid. Pluralities, the great^;st abuse of the Church, 116, note 127 ; bill for restraining, 128. Pole (Cardinal Reginald), actively employed by the pope in fomenting rebellion in England, 28, and note * ; pro- cures the pope's confirmation of grants of abbey lands, 69 ; conspiracy of his nephew against Queen Elizabeth, 75, note §. Polity of England at the accession of Henry V^ll., 13, 14. Political writings, their influence, 654. Poor, the, erroneously supposed to have been maintained by the alms of monasteries, 55, 56 ; statutes for their provision, 56, and note *. Pope, his authority in England, how taken away, 47-49 ; his right of deposing sovereigns, 92. Popery preferred by the higher ranks in England, 68 ; becomes disliked under Queen Mary, 69. Popish Plot, great national delusion of the, 469. Popular party, in the reign of Charles II., its connection with France, 458, 459. Population, stiite of, under the Plantagenets, 16, and note *. Portland (WilUam Bentinck, earl of), receives large grants from William III.. 569. Pound (Mr.), sentenced by the Star Chamber. 257, note t. Power, despotic, no statutes so effectual against as the vigilance of the people, 6,53, 654. Poyning's Law, or Statute of Drogheda. provisions of 686 ; its most momentous article, 687 ; bill for suspending, 692 ; attempts to procure its repeal, 710. Predestination, canon law against, under Edward VI., 67, note t ; dispute on, 229, 230, and notes. Prerogative, confined nature of the royal. 13 ; strength- ened by Henry VII., 18; undue assumption of, on the dissolution of Pariiament, by Charles I., 237 ; of a Catholic king, act for limiting the, 477 ; of the kings of England in granting dispensations, 526. Prejudices against the house of Hanover, 630. Presbyterians, their attempt to set up a government of tlieir own, 125 ; erroneous use of Scripture by, 130 ; consider the treaty of Newport as a proper basis for the settlement of the kingdom, 401 ; deceived by the king, 422 ; remarks on Charles II.'s conduct to, 428 ; implore his dispensation for their non-conformity, ibid. Presbyterian party, supported by the city of London, 349; regain their ascendency, 357; ministry solicit a revision of the Liturgy, 414, 415 ; clergy of Scotland, their power and attempts at independence, 662 ; re. strained by James VI., 664 ; intermeddle again with public aflairs, ibid. ; church, its obstinacy, 672. Presbyterian discipline of the Scottish Church restored. 666. Presence, the real, zeal of Henry VIII. in defending, 56 ; principal theories concerning the, 60, 61, and notes ; only two doctrines in reality, 61, note * ; believed in England in the seventeenth century, 272, 273, note. Press, liberty of the, 582, and note t, 583, and note *. Pretender (James Stuart, the), acknowledged King of England by France, and attainted of high treason by ParUament, 598 ; has friends in the Tory government, 613. and note * ; lands in Scotland, and meets with great success, 618 ; invades England, ibid. ; the Kin^ of Sweden leagues with for his restoration. 623. ana note t ; becomes master of Scotland, and advances to the center of England, 630; rebelUon of 1745 con- clusive against the possibUity of his restoration, ibid., and note * ; deserted by his own pjirty, 631 ; insulted by France, ibid. Priests, antiquity and evils of their celibacy. 62. note * ; Catholic, resigned or deprived tinder Elizabeth, 73; pensions granted to, ibid., note * ; Romish, persecution lor harboring and supporting, 77 ; the most essential part of the Romish ritual, 78 ; secret travels and de- ceitful labors of ibid. ; unite with sectarians, ibid.; or- dered to depart from England, unless they acknowl- edge the queen's allegiance, 103. Priests and Jesuits, intrigues of, against EUzabetb, 87; statute against, ibid. Priests (popish seminary), executed under Elizabeth. 92 ; Lord Burleigh's justification of their persecution, 94 ; ordered to quit the kingdom, 96. Priests (Romish), in Ireland, engage in a conspiracy with the court of Spain, 694 ; ordered to quit Ireland by proclamation, ibid. Prince of Wales (son of James II.), suspicions attending the birth of unfounded, 5:57, and note t. Principles of toleration fully established, 628. 732 INDEX. Pi-inting, bill for the regulation oC 405. rrinting and bookselling regulated by proclamations, 141, and note ^, 142, and notes. Priors, pension.s given to, on their suppression, 52, note *. Prisoners of war made amenable to the laws of England, 100. Privilege, breach of, members of Parliament committed for, 637 ; punishment of, extended to strangers, 638 ; ; never so fiequent as in the reign of Wiiliara III., ibid. Privilege of Parliament discussed, 506, 507 ; not controlla- ^ ble by courts of law, 644 ; imporbuit, the power of committing all who disobey its orders to attend as I witnesses, 643 ; danger of stretching too far, 646, and \ note * ; uncontrollable, draws with it unUmited power ■ of punishment. 659, and note Privy council, illegal jurisdiction exercised by the, 37 ; I the principal grievance under the Tudors, 38 ; its prob- j able connection with the Court of .Star Chamber, 40 ; I authority of the, over Parliament, ibid. ; illegal com- mitments of the, under Elizabeth, 139 ; power of its proclamations considered, 141 ; all matters of state formerly resolved in, 200, note * ; its power of impris- oning, 220, and note ; commission for enabbng it to in- terfere with courts of justice, 244, note ' ; without power to tax the realm, 250 ; of Ireland, filled with Catholics by James II., 706. Privy seal, letter of, for borrowing money, 144, note t, 145, notes, 219. Proceedings against Shaftesbury and College, 483, and ■note I, 484, and 7)otcs. Proclamation of Henry VII. controlling the subject's j right of doing all tilings not unlawful, 15 ; of the sov- [ ereign in council, authority attached to, 141 ; imwar- ranted power of some of those under Elizabeth, ^id. ; of martial law against Ubels, &c., 143 ; of James I. for , conformity, 173 ; for summoning his first Parliament, 174 ; House of Commons, complaint against, 189 ; de- bate of judges, (fcc, on, 194 ; illegaUty of, ibid., and ' note ; issued under Charles I,, 2.52. I Projects of Lord William Russell and Colonel Sidney, 487. I Prophesying?, religious exercises so called, 119 ; sup. pression of. 120 ; tolerated by some prelates, ibid. Propositions (the nineteen), ofiered to Charles I. at York, 313, and note t I Protestants, origin of the name, 64, note * ; number of, executed under Queen Mary, 70, note * ; increased by her persecution, 70 ; never approved of religious per- ' secution. 79, note * ; faith, league of the Catholic i princes against the, 87, note ; origin of the diflerences 1 between, 105 ; emigration of, to Germany, ibid. ; dis- i like of to the EngUsh Liturgy and ceremonies, 106-108, ! and 108, note ; proportion of, in England under Eliza- : beth, 108, note t ; favor Arabella Stuart's claim on the j crown, 167, 168, 7iote ; Dissenters, bill to relieve, lost i off the table of the House of Commons, 585; succes- 1 sion in danger, 616, and notes *t ; Church established ! by EMzabeth in Ireland, 689 ; many of the wealthier faraihes conform to the, 709. Protestantism, dissolution of the monasteries essential to ' its estabUshment, 52 ; strengthened by the distribution [ of their revenues, (fcc, 55 ; slow progress of, in the I north of England, 62. Protestation of the House of Commons against adjourn- ment in 1621, 211. Prynne (William), prosecution of, by the Star Chamber, 2.59. Pulteney (Mr.), his remark on the standing army, 634. Purgatory (doctrine of), abolished by the Reformers, 59. Puritans address Elizabeth against the Queen of Scots, 88 ; laws of Ehzabeth respecting, 10.5-186 ; rapid in- crease of, under Elizabeth, 110; begin to form con- [ Tenticles, 111 ; advised not to separate, ibid., note J ; first instance of their prosecution. 111 ; supporters j and opposers of in the Church and State, ibid., 112 ; their opposition to civil authority in the Church, 113 ; not all opposed to the royal supremacy. 114, note I \ pre- | dominance of, under Elizabeth, 115, and note *; prose- cuted by the prelates, 118; partly supportedbytheprivy j council, ibid. ; I'olerated to preserve the Protestant reli- i gion, 119; deprived by Archbishop WhitgifL 121, and I note J ; Lord Burleigh favorable to, 122, 12:j ; libels pub- ( lished by, 124. and note*, 125, and notes "t ; their Church government set up. 125 ; dangerous extent of their | doctrines, 126 ; their sentiments on civil government, I ibid. ; severe statute against, 128 ; state of their con- \ troversy with the Church under Ehzabeth, 129, note * ■ j object to the title of bishops, 134, note " ; Ehzabeth's reported otier to, 135, note " ; civil liberty preserved by the, 138 ; their expectations on the accession of | James I., 173, note } ; summoned to a conference at Hampton Court, 173 ; alarmed at the king's proceed- ings, 176 ; ministers of the, deprived by Archbishop Bancroft, 2J6, and note' ; character of the, ibid. ; differ- ence with the Sabbatarians, 227 j doctrinal Puritano, ibid., and note *. Purveyance, abuses of, 177 ; taken away, 293 ; proceed- ings of Parliament against, ibid., 177, 411. Pyrenees, treaty of the, 392. Quartering of soldiers (compulsory), tre.ison of, 297. Raleigh (Sir Walter), instances of his flattery of mon- archy, 162, and note * ; his execution, character, and probable guilt considered, 203, and note *, 204, and 7totes ''fl; his first success in the Munster colonies, 696. Ranke s "ilistory of the Popes," notice of, 77, jiotet. Reading, a Romish attorney, trial of, 471. Real presence denied in the articles of the Church of England, 61 ; the term not found in the writers of the 16th age, except in the sense of " corporeal," 273, note. Ptebellion (northern), excited by the harsh innovations of Henry VIII. ; appeased by conciUatory measures, but made a pretext for several executions of persons of rank, 28; in Ireland, in 1641, 697, 102; success of the insurgents in the, 704 ; of 1690, forfeitures on ac- count of the, 707. Recovery (common), for cutting off the entail of estates, its origin and establishment, 19. Recusancy, persecutions for, under Ehzabeth, 77 ; heavy penalties on, imder Ehzabeth, 91 ; annual fines paid for, 97, note *. Recusants, severity against, productive of hypocrites, 96 ; annual fines paid by, 97. note ' ; statute restraining their residence, 101 ; penalties upon, under James I., 232, note *, 233, note. Reed (Alderman Richard), his treatment for refusing to contribute to the benevolence in 1545, 26. Reeves (John), his History of English Law, character of, 19, note ^. Reformation of the Church gradually prepared and effect- ed, 43; disposition of the people for a, 49 ; uncertain advance of the, after the separation from Rome, and dissolution of monasteries, 56 ; spread of, in England, 57 : promoted by translating the Scriptures, ibid., 53 ; principal innovations of the, in the Church of Eu!:land, 57-62; chiefly in towns and eastern counties orEng- land, 62; German troops brought over at the time of, ibid., notej; measures of, under Edward VI., too zeal- ously conducted, 63 ; toleration not considered practi- cable in the, ibid., 64 ; in Germany, caused by vices of the superior ecclesiastics, 66 ; its actual progress un- der Edward VI., 68. Refornuiiio Legum Ecclesiastic&m, account of the com- pilation and canons of, 67, note t ; extract from, 63, 7iote. Reformers, their predilection for safirical libels, 124 ; for the Mosaic polity, 126, note J ; of Scotland, their ex- treme moderation, 662, 663, and note *. Refugees, popish, their exertions against Ehzabeth, 87, 91. Regalities of Scotland, their power. 660, 661. Regicides, execution of the, 408 ; some saved from capi- tal punishment, 417, 418. Religion, reformation of, gradually prepared and effected, 43 ; state of, in England, at the beginning of the six- teenth century, ibid. ; different restraints of govern- ments on, 63 ; Roman CathoUc, abohshed in Scotland, 661. Rehgious toleration. 584 ; infringement of, 627. Remonstrance on the state of the kingdom imder Charles I., 305, and ncte. Repubhcan party, first decisive proof of a, 360; com- posed of two parties, Levelers and Anabaptists, 371 ; government by, ill suited to the English in 1659, 390 ; no, in the reign of WilUam III., 557. Reresby (Sir John), his conversation with Lord Halifax, 482, and note *. Restitution of crown and Church lands, 408, 409. Restoration of Charles II., remarks on the unconditional, 400 ; popiilar joy at the, 405, 406 ; chiefly owing to the Presbyterians, 417. Revenue, settlement of the, 554 ; statement of the, by Ralph, ibid., note t ; surplus, in Ireland, dispute be- tween the Commons and the government concerning its appropriation, 712. Revolution in 1688, its true basis. 527 ; its justice and ne- cessity, 535 ; argument against it, 538 ; favorable cir- cumstances attending the, 540 ; salutary consequences resulting from the, 542 ; its great advantage, 543 ; its INDEX. 733 temperate accomplishment, 550 ; in Scotland, and efltablishnient of Presbytery, 671. Reynolds (Dr.), at the Hampton Coui t conference, 173, note t. Richard II., statute of, restraining the papal authority, 47 ; supply raised under, 250 ; his invasion of Ireland, 685. Richard III., first passed the statute of fines, 18. Richelieu (Cardinal Armand du Plessis), his intrigues against England, 247, note t. Richmond (Charles Stuart, duke of), his marriage with Miss Stewart, 43ti. Richmond Park e.xtended, 245, note *. Ridley (Nicholas, bishop of London), liberality of, to the Princess Mary, 64 ; assists in remodeling the English Church, 65, note * ; firmness of, in the cause of Lady Jane Grey, 66 ; moderation in the measures of reform, ibid. Right of the Commons as to money bills, 508. Robbers and murderers deprived of the benefit of clergy, 44. Rochester (Laur. Hyde, lord), his dismissal, 528, and note * ; creates great alarm, 529, and note *. Rockingh;mi Forest increased, 245. Rockisane (Archbishop of Prague), his reply to Cardinal Carjaval at the Council of Basle, 117, note Rockwood ( ), persecution of, for popery, 90, note t. Roman Cathohc prelates of Scotland, including the reg- ulars, allowed two thirds of their revenues, 662. Romish priests' address to the king, to send them out of the kingdom, 429, and note * ; their policy, 451 ; super- stition, general abhorrence of the, 523. Root and Branch party, 302. Ross (Thomas), executed for publishing at Oxford a blasphemous libel, 668. Royal famihes of Ireland (O'Neal, O'Connor, O'Brien, O'Malachlin, and Mac Murrough), protected by the EngUsh law, 682. Royal power, its constitutional boundaries well establish- ed, 494. Royalists, decimation of the, by Cromwell, 377, and note t ; discontent of the, 409, and note t, 410. Rump, the ParUament commonly so called, 36-2, and note I : fanaticid hatred of, to the king, ibid. Rupert (Prince), Bristol taken by, 326 ; and Newcastle defeated at Marston Moor, 331 ; consequences of the same, ibid. Russell (Admiral), engaged in intrigues, 560 ; his conduct at the battle of La Hogue, and quarrel with the Board of Admiralty, ibid., 561 ; ParUamentary inquiry into their dispute, 571. Russell (Lord), sincerely patriotic in his clandestine in- tercourse with France, 460, 461, and notei; and the Earl of Essex concert measures for a resistance to the government, 487 ; they recede from the councils of Shaftesbury, 488 ; evidence on his trial not sufficient to justify his conviction, ibid., and note t. Rye-house Plot, 469, 470, and note *, 471, 487, note t. Rysmck (U'eaty of), particulars relating to, 567. Sabbatarians, origin and tenets of, 227, and note *. Salisbury (Coimtess of), her execution, causes of, 28 ; not heard in her defense, ibid., note t. Salisbury (Robert Cecil, earl of), extenuates the wrongs imputed to Spain, 182 ; his scheme for procuring an aimual revenue from the Commons, 190 ; his death and character, 192, and notes t* ; (Wilham Cecil, earl of), his forest amercement, 245. Sampson, the Puritan, hia remonstrance against the pa- pists, 89. Sancroft (Thomas, archbishop of Canterbury), his scheme of comprehension, 585. Sandys ^Sir Edwin), his commitment to the Tower, 209, and note t, 213. Savoy, conference at the, in 1661, 423; animosity be- tween the parties, *424 ; conduct of the Churchmen not justifiable, 423, and note * ; only productive of a more exasperated disunion, 424 ; general remarks on, ibid. Sawyer (Sir Robert), expelled from the House of Com- mons, 553, and note t. Scambler (Edmund, bishop of Norwich), his character, 134. Scandinavia, colonists from, settle on the coasts of Ire- land, 676, 677. Scheme of comprehension and indulgence, 444 ; obser- vations on the, 586. Schism in the Constitutional party under Charles I., 304, and notes ; of the non-jurors, 587. Schools (free), in Ireland, act passed in the reign of Elizabeth for erecting, 694, note f. ] Scotland, micertain succession of the English crown iu tlic royal family of, 79-101 ; its claims not favored, 82 ; Puritanical church government established in, 12C ; union with England brought forward, 179, 180, and 7iotcs ; troubles commenced in, 284, and note t; privy council of, abolished, 602, and notei; its early state wholly Celtic before the twelfth century, 657 ; ita want of records, 658 ; its wealth, 661 ; character of its history from tlie Reformation,, ibid. ; Church of, still preserves the forms of the sixteenth century, 662, 672; establishment of Episcopacy in. 665 ; could not remain indifferent during the civil war in England, 668 ; crown of, tendered to William and Mary, 67l ; Episcopal and Presbyterian, chief controversy between, 672 ; practice observed in summoning the national assembly of the, ibid., note * ; assemblies of the, judicious admixtxire of laymen in, 672. Scots, the, conduct of, to Charles I., 345, and note *, 346, and notes "t ; conclude a treaty with Charles, and in- vade England, 357. Scots Presbyterians, sincerely attached to King Charles, 351, and note Scot and lot boroughs, very opposite species of franchise in, 516, and notet Scripture, English translations of, proscribed, 57; per- mitted to be read, and prohibited, ibid., and note * ; ef- fect of their general use, 58. Scroggs (Chief-justice), impeached for treason, 483. Scudamore (Lord), anecdote of, 274, and note J. Seal, great. Lord-keeper Littleton carries it to the king; 327 ; new one ordered to be made by Parhament, ibid. Seats in Parliament, sale of, 656. Secret corruption, 636 ; service-money disposed of to corrupt the Parliament, 5'J.>, and note *. Secret treaty of 1670, anecdotes and particulars relating to, 448, and note * ; difterences between Charles and Louis as to the mode of its execution. 449. Secret historical documents brought to hght by Macpher- son and Dalrymple, 559. Sectaries, persecution or toleration the only means of dealing with, 124. Selden (John), siimmoned before the Star Chamber. 220. Septs of the north of Ireland, liberty enjoyed by, 681 ; of Munster and Leinster, their oppression, ibid. ; offers made by some for permission to live under the English law, 682. Sergeant of the House of Commons, aiithority of the, 157-159. Session, Court of, of Scotland, its origin and judicature, 661. Settlement, Act of, rights of the reigning monarch ema- nate from the Parliament and people, by the, 543 ; Blackstone's view of, .590, 7iote ^. .'Settlement of the revenue, 410. Seymour (Lord), of Sudely, courts the favor of the yoimg king, Edward VI., 33 ; entertains a hope of marrying Princess Elizabeth, ibid. ; accused of treason, and not heard in his defense, 34 ; wai'rant for hia execution signed by his brother, ibid. Seymour (WilUam, marquis of Hertford), married to Lady Aral)ella .Stuart, 201. Seymour (Sir Francis), refusal to pay ship-money, 28.5, 286, and note *. Shaftesbury (Anthony, third earl of), declaration of in- dulgence projected by, 453 ; fall of, and his party, 455 ; bad principles of, 475 ; desperate counsels of, 387 ; com- mitted to tlie Tower with three other peers, by the Lords, for calling in question the legal continuance of Parliament, after a prorogation of twelve months, 645. Shaftesbury and College, impeachment of, 483, and note J, 484, and notes. Sharp (James), archbishop of St. Andrew's, an infamous apostate and persecutor, 669, 670. Sheflield (Sir Robert), confined in the Tower for his com- plaint against Wolsey, 41, note *. Shelley (Sir Richard), reluctantly permitted to enjoy hia religion, 89. Shepherd (Mr.), expelled the House of Commons, 229. Sherfield ( ), recorder of Salisbury, Star Chamber prosecution of, 274, note §. Sherlock (Dr.), his work entitled Case of Resistance to the Supreme Powers, 491, and 7iote *, 492, note; his in- consistency. 551, note * ; a pamphlet, entitled A Second Letter to a Friend, attributed to him, id. ibid. Ship-money, its origin and imposition, 246 ; extended to the whole kingdom, 248 ; trials concerning, ibid., and note*; case of Ham])dcn, ibid., and note], 249. note; the king's proposal of resigning for a supply, 287, 288, note * ; declared illegal, 291. 734 INDEX. Shirley (Sir Thomas), Parliamentary proceedings on his arrest, 176. Shirley (Dr.). and Sir John Fagg, case between, 507. Shower, infamous address of the barristers of the Middle Temple under the direction of, 532. Shrewsbury, Earl of, engaged in intrigues, 560 ; his letter to King William alter Fenwick's accusation of him, ibid., and note *. Shrewsbury (Lady), fine and imprisonment o£ 202. Sibthorp ( ), his assertion of kingly power, 239. Sidney (Sir Philip), writes a remonstrance against Eliza- beth's match with the Duke of Anjou, 138. Sidney (Algernon), receives pecuniary gratifications from France, 461 ; was a distressed man, 462 ; his dislike to the Prince of Orange, ibid. ; his conviction illegally ob- tained, 489, note * ; observations on his character and conduct, ibid., 490. Sidney (Sir Henry), his representation to Queen Eliza- beth of the wretched condition of the Irish, 691, and n&te * ; his second government in Ireland, excites re- sistance by an attempt to subvert the liberties of the pale, 693 ; his disappointment at the want of firmness in Queen Elizabeth, 693, note * ; account of the Prot estaiit Church in Ireland, 694, note t. Silenced preachers set at liberty, 90, note t. Six Articles, law of, on the celibacy of priests, 62. Skinner (Thomas), case of, against the East India Com- pany, 505 ; committed by the Commons for breach of privilege, 506. Smith (Sir Thomas, his treatise on the Commonwealth of England), cited concerning the Star Chamber, 39 ; hi? account of causes belonging to the Court of Star Chamber, 41 ; his natural son sent with a body of En- glish to settle in Ireland, 696. Soap, chartered company for making, 245. Somers (Lord-chancellor), puts the great seal to blank powers, 572, and notts Somers, Halifax, Wharton, Oxford, and Simderland, kept out of administration by the dishke of Queen Anne, 605. I Somerset (Edward Seymour), duke of obtains a patent constituting him protector, 33 ; discovers a rival in his brother. Lord Seymour, ibid. ; signs his warrant for execution, 34 ; deprived of his authority, ; accused ' of a conspiracy to murder some of the privy counsel- ors, ibid. ; eridence not insufficient, ibid. ; inclined to | the Reformation, and powerful in the council, K ; his i destruction ofchurches to erect his palace, 63; designed i the demohtion of Westminster Abbey, ibid. ; his lib- ! eraUty to the Princess Mary, 64, note Somerset (Robert Car, earl of ),his guilt of the murder of Overbury examined, 202, 203, note *. Somerville, executed for a plot against Ehzabeth, 97. | Southampton (Thomas Wriothesley), earl of, his estate in the New f orest seized, 245 ; his opposition to the statute against Non-conformists, 430. Southey (Robert), his assertion on persecution and tol- eration in the Church of England, 79, note Sovereigns, their inviolability to criminal process ex- amined, 99 ; their power weakened by the distinction J of party, 651. Spain, design of transferring England to the yoke of, 37 ; dislike of the EngUsh to. under Queen Mary, 69, 70 : King James's partiahty for, 182, and Tiote * ; connection with England under James 1., 192 ; his unhappy predi- lection for, 204, and note * ; treaty of royal marriage with, 210, 212 ; policy of Charles I. with, 246, 247. and notes *t ; decline of the power of, after the treaty of the Pyrenees. 445. Speaker of the House of Commons, power of, concerning i bills, 155, note. Speech, freedom of in Parliament, 242. Speed (John), his valuation of the suppressed monaster- ies. 54, note *. Spenser (Edmund), his AccoutU of Ireland. 691, note * ; the first three books of his Faery Queen, where written, 696. Spies should be heard with suspicion in cases of treason, 581. Spire, Protestation of, by the Lutheran princes against mass, 64, note *. Sports, Declaration of, by James I., 228, 269. Sprot, a notary, executed in Scotland for concealing let- ters, 667. 668. Staflbrd (William Howard), lord, convicted of the Popish Plot, 472, and note *. Standing army, without consent of Parliament, declared illegal, 549, and note ' ; national repugnance to its rise, 634. Standish (Dr. ), denies the divine privileges of the clergy. 44 ; censored in the journal of Henry VUL, ibid., nott *. St. Bartholomew (day of), 2000 persona resign their pref- erments, 426. St. Germain's (court of), preserve a secret connection with Godolphin and Marlborough, Oil. St. John (OUver), declines to contribute to the benevo- lences, 197 ; his statement of means for defense of the royal prerogative, 249. St John's College, Cambridge, non-conformists of, in 1565, 113, note '. St. Paul's Cathedral, proposed improvement of, 254. St. Phehpe, remarkable passage in his memoirs, 607, note '. Star Chamber, court of, the same as the ancient Coneili- -um Regis, or Ordinarium, 39, and note t ; account of the powers of 40; augmented by Cardinal Wolsey. 41 ; original Umitation and judges of the, 42, and Ttou ' ; causes within the cognizance of the, 42 ; its arbitrary and illegal powers, ibid. ; not the court erected by Henry VIL, ibid., note J ; examination of papists in the, 77 ; security of the, IIT? ; power of, 139 ; instances of its extended authority, 201 ; informations in the, against London, 254; jurisdiction of the, 2.35; caution of in cases of inheritance, 256 ; offenses belonging to, ibid. ; mode of process in the, 257 ; punishments infiicted by the, ibid., and notes **t ; fines and sentences of the, 258 ; corrupt and partial, ibid. ; act for abolishing, 292, and nou * ; attempt to revive the, 421 ; report of com- mittee of the Lords concerning the, ibid. State, Co abeth, 90, note t. 736 INDEX. Topham (sergeant at arms), actions brought against blm for false imprisonment, 645. Torture, use of denied by the judges, 243 ; instances of, in England, ibid., 244, note * ; strictures on Mr. Jar- dine's view of tliis subject, 244, noU *. Tortures, used under the house of Tudor, 93, and note * ; under Elizabeth, denied by Lord Burleigh, 94. Tory principles of the clergy, 490 ; firmly adhere to the established religion, 491 : party, their rage against tlxe queen and Lord Oxford for retaining Whigs, GIT, note 618, note ; ministry annoyed by the vivacity of the press, 654. Tories, thcii- inconsistency, COl, G03 ; ill received at court, and excluded from office, 630, 631. Toryism, its real character, 480 ; cardinal maxim oC ibid. Tower of London, historical associations connected with the, 93. Towns, chartered, their jurisdiction, 16. lYacts, political, extraordinary number published fi'om the meeting of the Long Parliament, 495. Trade, foreign, proclamations of EUzabeth restricting, 141 ; the king's prerogative of restraining, 183, and note * ; project for a council of, 571. Transubstantiation, persecutions concerning. 56, 64 ; met- aphysical examination of, 61 ; modem Komish doc- trine of ibid., note *. Treason, consideration of the law of, as applied to the papists under EUzabeth, 102, note * ; trials for, unjustly conducted under Elizabeth, 138 ; perversions of the law ' .of, under James L, 198, note t ; law of, 574 ; statute of Edward III.. Hid. ; its constructive interpretation and material omission, ibid. ; various strained construc- tions of the, 575 : statute of William III., 578, 579 ; pros- ecutions for, under Charles II., disgraceful to govern- ment, 579 ; Scots law of, its severity and odium, 667. Treasury, reduced state of the, in 1639, 284, 285, and note {. Treaty begun at Oxford, 323 : pretended, signed with France, secret between Charles II. and Louis XIV., 462 : of peace broken off and renewed by the Tory government 607. Treaties of partition, two, 571 ; impeachment of four lords on account of the, 572. Treating at elections, origin of, 656, note J. Treby (Chief-justice), his conduct in the case of Ander- ton, 579, 580. Trial by jury, its ancient establishment, 15, note *, 16. Trials "for treason, (fcc. imjustly conducted under Eliza- betli. 138 ; of Russel, 488 ; and Sidney, 489. Triennial Bill, its constitution and privileges, 291, and note * ; act, repeal of, 420 ; and of the act for its repeal, 421. Trinity, denial of the, or of the inspiration of any book of the Bible, made felony, 350, note. Triple alliance, public satisfaction at the, 445. Trust estates, view of the laws relating to, 198, 199. Tudor, house of, difficulty experienced by, in raising sup- plies, 19 ; one of the most important constitutional pro- «sions of, 34 ; strengthened by Mary, ibid. Tudors, military lertes imder the, 312. Tunstall (Cuthbert), bishop of Durham, Uberally enter- tained by Parker, 76, note t. Tutchin (John), law laid down by Holt in the case of, 583. Tyndale (WiUiam), his translations of the Scriptures, 57, and note *. Tyrconnel (Earl of), charged with conspiracy, and at- tainted of treason, 696 ; lord-lieutenant of Ireland in 1687, his secret overtures with the French agents, 707, and note *. Tyrone (Earl of), charged with conspiracy, and attainted of treason, 696. Tyrrel (Antony), an informer against papists, 96, note t. Udal ( ), tried and imprisoned for a hbel on the bishops, 125, and note t, 138. Ulster, the most enlightened part of Ireland, 696 ; the colonization of, first carried into effect by Sir Arthur Chichester, in the reign of James I., ibid. ; linen manu- facture first estabUshed by Strafford, 701. Undertakers, agents between the king and the Parlia- ment so called, 196, 205, note t. Uniformity, Act of, passed under EUzabeth, 72, and note t ; its character and extent, 73 ; links the Church with the temporal Constitution, 105. Union of the two crowns, sovereign and court mth- drawn by, from Scotland, 674 ; general observations on the same, 675. Universities, foreign, bribed on the subject of Henry VIII.'s divorce, 45, ?io/et; diliiculty of procuring the judgment of Oxford and Cambridge against the mar- riage, 49. Usher (James), archbishop of Armagh, his scheme for • moderate Episcopacy, 301, and nou t ; model of Church government, 414, and notes; scheme of Church gov emment not inconvenient or impracticable, 423. Utrecht, treaty of, arguments for and against the, 60B ; negotiations mismanaged. 610; advantages lost by the. ibid., 611 : misconduct of Lords Bolingbroke and Ox- ford in the management of it, 611, aninou Uxbridee, negotiations at, 332, and nou 1 : rupture of the, 335. I Vagabonds, act of state against, under Elizabeth, 144. Vane (Sir Henry), his message to the Commons, 1640. ; 288 ; and General Lambert, excepted from Act of In- demnity, 417 ; injustice of his condemnation, 418, and '■ note t ; execution and character, 418, 419 ; his commu- I nication to the lords-justices relating to the connection I between Spain and the disaffected Irish, 702, note *. Vaughim (Chief-justice), his argument with regard to the power of juries, 499. Venner, insurrection of, in 1660, 411. Verdict, general, question of the right of juries to return a, discussed, 499. Vestments of priests, retained in England, 68 ; dislike of the German Reformers to, ibid. Vintners' Company, fined by the Star Chamber, 258. Visitations of monasteries, character and truth of 51. Vote of Parhament, to prevent the meeting of caballing officers, 388, and noU t ; the Parhament dissolved iu consequence, 383, and note VowcU's Treatise on the order of ParUamcnt, extract from, 517, noU *. Waldgrave (Sir Edward), and his lady, imprisoned for hearing mass, 74. Wales, Court of the Council of, its jurisdiction, 190, and note t ; court and council aboUshed, 293 ; right of elec- tion extended to, by Henry VIII., 514. Waller's Plot, 325 ; oath taken by both Houses in conse- quence of, ibid. Wallingford House, cabal of, form a coaUtion with the RepubUcans, 388 : oblige Richard CromweU to dissolve his Parhament, ibid. Walpole (Sir Robert), reconciles the Church to the royal family, 628 ; remarks on his administration, 630 ; character of the opposition to him, 632, 633 ; the suc- cessors oi, do not carry reform to the extent they en- deavored, 636; and Pelham, condemn the excessive partiality of their masters for their Hanoverian do- minions, 652, 653, note * ; bis prudent administratloD, 656. Walsingham (Sir Francis), deceived by Charles IX., 87 ; his advice against Mary, queen of Scots, 88 ; fideUty of his spies upon her, 97, 98 ; his enmity to her, 99, and note * : his moderation and protection toward the Puritans, 118 ; his disinterested liberality, 134 ; his let- ter in defense of Elizabeth's government, 136, and note *. Walton (Dr. Brian), ejected by the Covenant, 329. War with Holland, infamy of the, 452, and note t ; be- tween WilUam HI, and Louis XIV., its ill success and expenses, 5G5 ; of the succession, its object, 606. Wards, extraordinary Uvcries taken for, 20. Warham (William), archbishop of Canterbury, his letter to Wolsey on the grants, &.C., of 1525, 23. note *. Warrant of commicuil, form and power of, debated, 220, 2-H, 241. Warwick (Edward Plantagenet carl of), his long cap- tivity, attempt to escape with Perkin Warbeck, hi? trial for conspiracy, induced to confess himself guilty in the hope of pardon, his execution, and the probable motive for it, 26 ; John Dudley, earl of, a concealed papist, 64, note |. Werdock, the first charter for returning members to Parliament, 515. Went^vorth (Paul), his discussion of the Church authori- ty with Archbishop Parker, 117; his bold motion on a command of Elizabeth, 148 ; Peter, his motion on the succession, 153 ; his bold defense of the privileges of Parhament against Elizabeth. 151 ; examined concern- ing it, ibid. : questions of, on the privileges, &.c„ of Parhament, 152 ; committed to the Tower, ibid. W'estbury, borough of, fined for bribery, 157. Westminster, ancient courts of law held at, 15; Abbey, preserved from destruction in the Reformation under Edward VI., 63 ; Hall, tumult in, on demand of a loan hy Charles I.. 219, and note t. Westmoreland (Mildmay Fane, earl of), his forest amerce- ment, 245. INDEX. 737 Whallfy (Abbey oOi Dr. Whitaltcr's schcmo lor dis- tribulini; its revenues, 55, note '. Whig nnd Tory, first hcai d of in the year 1679, 478 ; their first meeting, 480 ; remarkable triumph of the, 544 ; necessity of accurately understanding their dcfinitiou, 600 ; their (Ustinctivo principles, ibid. ; changes cfl'ected In them by circumstances, ibid. VVhiggisni, genuine, one of the teats of, 572. Whig party, justified In their distrust of Charlea II., 403. Whigs, their inlluence in tho councils of Williiun III., 552 ; oppose a gencriU amnesty, 553 ; bold measure of the. 616 ; come into power, 617. Whiston, extract from his Memoirs, 599, note *. Whitaker (Dr. Thomas Dunham), his plan for distributing the revenues of the Abbey of Whalley, 55, note *. Whitbread, a Jesuit, his trial, 471, 472. White (John, bishop of Winchester;, speaks against the Protestants in his funeral sermon for Queen Mary, 72, note t. Whitelock (Sir James), cited before the Star Chamber, 201 ; Bulstrode, palliation of his father's phoney, 241, note * ; curious anecdote recorded by, 395. Whitgifl (John, archbishop of Canterbury), orders given to, concerning papists m Denbigh, 89 ; his allowance of torture, 93, note * ; his answer to Cartwright, 121, '• and note t ; rigor of his ecclesiastical government, ibid., i and note J ; ez cfficio oath tendered by, 122; his inter- j cession for Udal, 125 ; liis censure of lawyers, 128, and note J ; his bigoted Bwny over the press, 142, and note ' '[Is exclamation at Hampton Court, 665. j Wickhfte (John), ctJ'ect of liis doctrines in En"land, 43. ' Wildman (Major), unites tlie Republicans and Koyalists \ against the power of Cromwell, 376. j Wilford (Sir Thomas), EUzabctli's illegal commission of \ martial law to, 143. Wilkins (Bishop), opposes tho act for suppressing con- venticles, 452. William the Conqueror, capacity of his descendants to ' the seventeenth century described, 650. William the Lion, statutes ascribeel to him, 657. j William III. receives the crown conjointly witli his wife, 546 ; discontent with his govenimcnt, 550 ; his charac- ter and errors, 552 ; his government in danger, ibid. ; hia dissatisfaction, 556; his magnanimous and pubUc- spirited ambition, ibid. ; dissolves the Convention Par- liament, and gives his confidence to tlie Tories, 558, and ?iotc$ t* ; scheme for his assiissinadon, 503, and ! note * ; his magnanimous conduct, 505 ; unjustly ac- cused of neglecting tlie navy, 566. and note * ; skill and discipline acquired by tlie troops under his command, ibid. ; aware of the intentions of Louis XIV. on the Spanish dominions, 567 ; £700,000 grimtcd him during lite, 568 ; leaves a sealed order to keep up the army, tAiVi. ; obUged to reduce his army, and send home his Dutch guards, ibid., 569 ; his conduct censurable with regard to tlie Irish forfeitures, 569, no/o ; unpopular- ity of his administration, 571 ; his conduct witli respect to the two treaties of partition, 572 ; his superiority over tli(^ greatest men of tlio a"e, 573 ; improvements in the English Constitution under him, ibid, t his stat- ute of treason, 574 ; hatred of the Tories to, 588 ; dis- tinction of the cabinet from the privy council during his reign, 592 ; reser\'edne8s of liis disposition, 593 ; his partiality to Bentinck and Keppel not consistent with the good sense and dignity of liis character, 594 ; influences members of Parliainent by bribes, ibid. ; re- fuses to p(u.s a bill for rendering the judges independ- ent, 597; truly his own minister, 651; never popular in Scotland, 673 ; the only consiiteut friend of tolera- tion, ibid,, and note Williams ( ), his prediction of Kin" James's death, 198, note t ; Dr. John, bishop of Lincoln, suspicion of corruption in, 223, note t; fined by the Star Chiunber, 258 ; made lord-keeper, 260 ; suspected of popish prin- ciples, 277, note \. Wills, lees of the clergy on the probates of, limited, 47. Winchester, statutes ot, on defense of the nation, 311. Wines, duties imposed on their importation, 184, note *, 185. Wisbech Castle, factions of the prisoners in, 103, note *. Withens (Sir Francis), expelled the House of Commons, 481. Woad, proclamation of Elizabeth, prohibiting its culture, 141, and note '. Wolsey (Cardinal Thomas), bis motion for a supply of £800,000, to bo raised by a tax on lands and goods, 21 ; opposed by the Commons, ibid. ; circumstantial ac- count of tills transaction, 22, and note * ; his arbitrary mode of raising money without the intervention of Par- liament, 22 ; letters to, concerning, 23, note * ; obloquy incurred by these measures, 24 ; estimate of his char- nctcr, ibid. ; articles against him never intended to bo proceeded upon by the king, 25, note * ; cause of the Duke of Buckingham's execution, 27, and note * ; aug- ments the authority of the Court ofStar Chamber, 41 ; rifjid in resn aining tlie turbulence of the nobility, &c., ibid., note * ; Luther's attack on, 45, note " ; a delegate of Clement VII. on Henry VlII.'s divorce, 45; increase! the fees of the clergy on wills, 47, note * ; his reforma- tion and suppression of tho moniistic orders, 50 ; did not persecute, but proscribed heretic writings, 57. Wool, &c., ancient unjust tolls on, 185, note *. Wotton (Sir Henry), his palliation of impositions, 196, note J. Worcester, victory of, its consequences to tlie future power of Cromwell, 369. WVight ( ), his case of conscience and confinement, 91, note '. Wri"ht (Mr. 1'horaas), notico of his edition of " Letter* relating to the Suppression of Monasteries," 51, note t. Wyatt (Sir Thomas), insurrection of, 71, note. Yelverton (Mr.), his defense of the privileges of Parlia- ment, 149. Yeomou of the guard, establishment of tlic, 311. Yeomanry of England, under the I'lantageuets, described, 15. York, Council of, summoned, 289, and notes *§. York (James, duke of), protests against a clause in Act of Uniformity, 426 ; suspected ot being n Catholic be- fore the Kestoration, 427, nnd note " ; his marriage with Lady Anne Hyde, 430, and tiote f ; converted to tlie liomish faith, 447 ; particulars relating to his con- version, 448, and 7101c ; always strenuous against schemes of comprehension, 4.')1 ; obliged to retire from the otfice of lord-admiral, 45-1, and note t; dangerous enemy of the Constitution, 400 ; his accession to the throne received with great apiirclicnsion, 473 ; i ngaged in a scheme of general conversion, 474 ; resolved to ex- cite a civil war rather than yield to the exclusion, 476 ; plan for banishing him for life. 478, and note ' ; his un- popularity among the niiddUng classes, 480 ; liis tyran- ny in Scotland, 669. Yorkc (Philip, second Earl of Hardwick), his account of the ToriiB in 1745, 030, note '. Yorkshire, levy of ship-money refused in, iSC. Zeal, religious, in Scotland, its furious etTects, 661. Zuingle (Uli ic), his belief coiu orning the Lord's Supper neiu ly fatal to the Kcformation, 61. THB END. A NEW Classified and Descriptive Catalogue of Harper & Broth- ers' Publications has just been issued, comprising a very extensive range of Literature, in its several departments of History, Biography, Philosophy, Travel, Science and Art, the Classics, Fiction, &c. ; also, many splendidly Embellished Productions. The selection of works includes not only a large proportion of the most esteemed Literary Productions of our times, but also, in the majority of instances, the best existing authorities on given subjects. This nev? Catalogue has been constructed vrith a view to the especial use of persons forming or enriching their Literary Collections, as well as to aid Principals of Dis- trict Schools and Seminaries of Learning, who may not possess any re- liable means of forming a true estimate of any production ; to all such it commends itself by its explanatory and critical notices. 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