Constitutional History of England, Vol 1 of 3

her ecclesiastical prerogatives, has already afforded us many illustrations of what may more strictly be reckoned the constitutional history of her reign. The tone and tempe

iastical history of this period is the best preparation for our enquiry into the civil government. In the present chapter I shall first offer a short view of the practical exercise of governmen

e reigns; but she certainly acted upon many of the precedents they had bequeathed her, with little consideration of their legality. Her own remarkable talents, her masculine intrepidity, her readiness of wit and royal deportment, which the bravest men unaffectedly dreaded, her temper of mind, above all, at once fiery and inscrutably dissembling, would in any circumstances have ensured her more real sovereignty than weak monarchs, however nominally absolute, can ever enjoy or retain. To these personal qualities was added the co-operation of some of the most diligent and circumspect, as well as the most sagacious counsellors that any prince has employed; men as unlikely to loose from their grasp the least portion of that authority which they foun

most indispensable; nor can the subjects of any state be reckoned to enjoy a real freedom, where this condition is not found both in its judicial institutions and in their constant exercise. In this, much more than in positive law, our ancient constitution, both under the Plantagenet and Tudor line, had ever been failing; and

only with our modern decent and dignified procedure, can form little conception of the irregularity of ancient trials; the perpetual interrogation of the prisoner, which gives most of us so much offence at this day in the tribunals of a neighbouring kingdom; and the want of all evidence except written, and perhaps unattested, examinations or confessions. Habington, one of the conspirators against Elizabeth's life in 1586, complained that two witnesses had not been brought against him, conformably to the statute of Edward V

posals of this young scion of the house of Valois. Her council, though several of them in their deliberations had much inclined against the preposterous alliance, yet in the end, displaying the compliance usual with the servants of self-willed princes, agreed, "conceiving," as they say, "her earnest disposition for this her marriage," to further it with all their power. Sir Philip Sidney, with more real loyalty, wrote her a spirited remonstrance, which she had the magnanimity never to resent.[372] But she poured her indignation on Stubbe, who, not entitled to use a private address, had ventured to arouse a popular cry in his "Gaping Gulph, in which England will be swallowed up by the French Marriage." This pamphlet is very far from being, what some have ignorantly or unjustly called it, a virule

ave laid their account with appearing before the star-chamber; lucky, if they should escape, on humble retractation, with sharp words, instead of enormous fines and indefinite imprisonment. The control of this arbitrary tribunal bound down and rendered impotent all the minor jurisdictions. That prim?val institution, those inquests by twelve true men, the unadulterated voice of the people responsibl

ated to itself a power of discretionary imprisonment, into which no inferior court was to enquire, but commitments by a single counsellor appear to have been frequent. These abuses gave rise to a remarkable complaint of the judges, which, though an authentic recognition of the privilege of personal freedom against such irregular and oppressive acts of individual ministers, must be admitted to leave by far

arons of the exchequer, do desire your lordships that by your good means such order may be taken that her highness's subjects may not be committed or detained in prison, by commandment of any nobleman or counsellor, against the laws of the realm, to the grievous charges and oppression of her majesty's said subjects:

uch commandment against the law; and upon the queen's writ in t

ommitted to prison in secret places, and not in common and ordinary known prisons, as the Marshalsea, Fleet, King's Bench, Gatehouse, nor the custodie of any s

cution of her majesty's writs out of the King's Bench, Common Pleas, and other courts, to their great

nts great sums of money against the law, and have been committed to prison till they would release the lawful benefit of their suits, judgments, or exe

soner sent to custody by her majesty, her council, or some one or two of them, is

-board, or for treason touching her majesty's person (a word of five letters follows, illegible to me), which cause

ed for any other cause, then the sa

ose name is mentioned, died in November 1591; so that, if there is no mistake, this must have been delivered a second time, after undergoing the revision of the judges. And in fact the differences are far too material to have pro

s issued under Elizabeth, that the Crown claimed a sort of supplemental right of legislation, to perfect and carry into effect what the spirit of existing laws might require, as well as a paramount supremacy, called sometimes the king's absolute or sovereign power, which sanctioned commands beyond the legal prerogative, for the sake of public safety, whenever the council might judge that to be in hazard. Thus we find anabaptists, without distinction of natives or aliens, banished the realm; Irishmen commanded to depart into Ireland; the culture of woad,[378] and the exportation of corn, money, and various commodities, prohibited; the excess of apparel restrained. A proclamation in 1580 forbids the erection of houses within three miles of London, on account of the too great increase of the city, under the penalty of imprisonment and forfeiture of the materials.[379] This is repeated at other times, and lastly (I mean during her reign) in 1602, with additional restrictions.[380] Some proclamations in this reign hold out menaces, which the common law could never have executed on the disobedient. To trade with

books taken away; several of which were but materials for his history.[387] Whitgift, in this, as in every other respect, aggravated the rigour of preceding times. At his instigation, the star-chamber, in 1585, published ordinances for the regulation of the press. The preface of these recites enormities and abuses of disorderly persons professing the art of printing and selling books to have more and more increased in spite of the ordinances made against them, which it attributes to the inadequacy of the penalties hitherto inflicted. Every printer therefore is enjoined to certify his presses to the Stationers' Company, on pain of having them defaced, and suffering a year's imprisonment. None to print at all, under similar penalties, except in London, and one in each of the two universities. No printer who has only set up his trade within six months to exercise it any longer, nor any to begin it in future, until the excessive multitude of printers be diminished, and brought to such a number

countries where the ordinary mode of trial is by jury, than where the right of decision resides in the judge. But it is of high importance to watch with extreme jealousy the disposition, towards which most governments are prone, to introduce too soon, to extend too far, to retain too long, so perilous a remedy. In the fourteenth and fifteenth centuries, the court of the constable and marshal, whose jurisdiction was considered as of a military nature, and whose proceedings were not according to the course of the common law, sometimes tried offenders by what was called martial law, but only, I believe, either during, or not long after, a serious rebellion. This tribunal fell into disuse under the Tudors. But Mary had executed some of those taken in Wyatt's insurrection without regular process, though their leader had his trial by a jury. Elizabeth, always hasty in passion and quick to punish, would have resorted to this summary course on a slighter occasion. One Pete Burchell, a fanatical puritan, and perhaps insane, conceiving that Sir Christopher Hatton was 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 tried instantly by martial law. Her council, however (and this it is impor

rebellious persons to be speedily suppressed by execution to death, according to the justice of martial law, he is appointed provost-marshal, with authority, on notice by the magistrates, to attach and seize such notable rebellious and incorrigible offenders, and in the presence of the magistrates to execute them openly on the gallows. The commission empowers him also "to repair to all common highways near to the city, which any vagrant persons do haunt, and, with the assistance of justices and constables, to apprehend all such vagrant and suspected p

ld and inveterate enemies, and entirely destitute of regular troops to withstand a sudden insurrection. Circumstances of which we are ignorant, I do not question, gave rise to this extraordinary commission. The executive government in modern times has been invested with a degree of coercive power to maintain obedience, of which our ancestors, in the most arbitrary reigns, had no practical experience. If we reflect upon the multitude of statutes enacted since the days of Elizabeth in order to restrain and suppress disorder, and above all on the prompt and certain aid that a disciplined army affords to our civil authorities, we may be inclined to think that it was rather the weaknes

a custom upon cloths, arbitrarily imposed by her sister, and laid one herself upon sweet wines. But she made no attempt at levying internal taxes, except that the clergy were called upon, in 1586, for an aid not granted in convocation, but assessed by the archdeacon according to the value of their benefices; to which they naturally showed no little reluctance.[394] By dint of singular frugality she continued to steer the true course, so as to keep her popularity undiminished and her

t with his money than to incur the council's displeasure. We have indeed a letter from a lord mayor to the council informing them that he had committed to prison some citizens for refusing to pay the money demanded of them.[395] But the queen seems to have been punctual in their speedy repayment according to stipulation; a virtue somewhat unusual with royal debtors. Thus we find a proclamation in 1571, that such as had lent the q

project of raising money by a general contribution or benevolence from persons of ability, without purpose of repayment. This was also amidst the difficulties of the year 1569, when Cecil perhaps might be afraid o

r a strict and prying steward. We are told that the relaxation of this minister's mind was to study the state of England and the pedigrees of its nobility and gentry: of these last he drew whole books with his own hands; so that he was better versed in descents and families than most of the heralds, and would often surprise persons of distinction at his table by appearing better acquainted with their manors, parks, and woods, than themselves.[399] Such knowledge was not sought by the crafty Cecil for mere diversion's sake. It was a main part of his system to keep alive in the English gentry a persuasion that his eye was upon them. No minister was ever more exempt from that false security which is the usual weakness of a court. His failing was rather a bias towards suspicion and timidity; there were times, at least, in which his strength of mind seems to have almost deserted him, through sense of the perils of his sovereign and country. But those perils appear less to us, who know how the vessel outrode them, than they could do to one harassed by continual informations of those num

ant subsidies which could not be raised by any other course, to propose statutes which were not binding without their consent, to consider of public grievances, and procure their redress, either by law or petition to the Crown, were their acknowledged constitutional privileges, which no sovereign or minister ever pretended to deny. For this end liberty of speech and free access to the royal person were claimed by the speaker as customary privileges (though not quite, in his modern language, as undoubted rights), at the commencem

barrenness indeed of Elizabeth's chroniclers, Holingshed and Thin, as to every parliamentary or constitutional information, speaks of itself the jealous tone of her administration. Camden, writing to the next generation, though far from an ingenuous historian, is somewhat less under restraint. This forced silence of history is much more to be suspected after the use of printing and the 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 hatre

inty, if none be, to provide a most gracious remedy in this great necessity;"[401] offering at the same time to concur in provisions to guarantee her personal safety against any one who might be limited in remainder. Elizabeth gave them a tolerably courteous answer, though not without some intimation of her dislike to this address.[402] But at their next meeting, which was not till 1566, the hope of her own marriage having grown fainter, and the circumstances of the kingdom still more powerfully demanding some security, both houses of parliament united, with a boldness of which there had perhaps been no example for more than a hundred years, to overcome her repugnance. Some of her own council among the peers are said to have asserted in their places that the queen ought to be obliged to take a husband, or that a successor should be declared by parliament against her will. She was charged with a disregard to the state and to posterity. She would prove, in the uncourtly phrase of some sturdy members of the lower house, a step-mother to her country, as being seemingly desirous that England, which lived as it were in her, should rather expire with than survive her; that kings can only gain the affections of their subjects by providing for their welfare both while they live and after their deaths; nor did any but princes hated by their subjects, or faint-hearted women, ever stand in fear of their successors.[403] But this great princess wanted not skill and courage to resist this unusual importunity of parliament. The peers, who had forgotten their customary respectfuln

ntrigue (whether of the Scots or Suffolk faction does not appear), who were more to blame than even the speakers in parliament. And if, as Cecil seems justly to have thought, no limitations of the Crown could at that time have been effected without much peril and inconvenience, we may find some apology for her warmth about their precipitation in a business, which, even according to our present constitutional usage, it would naturally be for the government to bring forward. It is to be collected from Wentworth's motion, that to deliberate on subjects affecting the commonwealth was reckone

"her majesty having experience of late of some disorder and certain offences, which, though they were not punished, yet were they offences still, and so must be accounted, the

be made to the queen's majesty for her licence to proceed in it, before it should be further dealt in. But Strickland, who had proposed it, was sent for to the council, and restrained from appearing again in his place, though put under no confinement. This was noticed as an infringement of their liberties. The ministers endeavoured to excuse his detention, as not intended to lead to any severity, nor occasioned by anything spoken in that house, but on account of his introducing a bill against the prerogative of the queen, which was not to be tolerated. And instances were quoted of animadversion or speeches made in parliament. But Mr. Yelverton maintained that all matters not treasonable, nor too much to the derogation of the imperial Crown, were tolerable there, where all things came to be considered, and where there was such fulness of power as even the right of the Crown was to be determined, which it would be high treason to deny. Princes were to have their prerogatives, but yet to be confined within reasonable limits. The queen could not of herself make laws,

ess of grievances.[410] This occasion of introducing the subject, though strictly constitutional, was likely to cause displeasure. The speaker informed them a few days after of a message from the queen to spend little time in motions, and make no long speeches.[411] And Bell, it appears, having been sent for by the council, came into the house "with such an amazed countenance, that it daunted all the rest," who for many days durst not en

ills with this intent. But Elizabeth, constant to her mysterious policy, made one of her ministers inform them that she would neither have the Queen of Scots enabled nor disabled to succeed, and willed that the bill respecting her should be drawn by her council: and that, in the meantime, the house should not enter on any speeches or arguments on that matter.[415] Another circumstance worthy of note in this session is a signification, through the speaker, o

hat they were in danger, while they contented themselves with the name, of losing and foregoing the thing. It was common for a rumour to spread through that house, "the queen likes or dislikes such a matter; beware what you do." Messages were even sometimes brought down, either commanding or inhibiting, very injurious to the liberty of debate. He instanced that in the last session, restraining the house from dealing in matters of religion; against which and against the prel

ult upon his knees.[418] In this commitment of Wentworth, it can hardly be said that there was anything, as to the main point, by which the house sacrificed its acknowledged privileges. In later instances, and even in the reign of George I., members have been committed for much less indecent reflections on the sovereign. The queen had no reason upon the whole to be ill-pleased with this parliament, nor was she in haste to dissolve it, though there was a long intermission of its sessions. The next was in 1581, when the chancellor, on confirming a new speaker, did not fail to admonish him that the House of Commons should not intermeddle in anything touching her majesty's person or estate, or church government. They were supposed to disobey this injunction and fell under the queen's displeasure, by appointing a public fast on their own authority, though to be enforced on none but themselves. This trifling resolution, which showed indeed a little of the puritan spirit, passed for an encroachment on the supremacy, and was only expiated by a humble apology.[419] It is not till the month of February 1587-8, that the zeal for ecclesiastical reformation overcame in some measure the terrors of power, but with no better success than before. A Mr. Cope offered to the house, we are informed, a bill and a book, the former annulling all laws respecting ecclesiastical government then in force, and establishing a certain new form of common prayer contained in the latter. The speaker interposed to prevent this bill from being read, on the ground that her majesty had commanded them not to meddle in this matter. S

he house of the queen's express inhibition from dealing with ecclesiastical causes, declared to them by the chancellor at the commencement of the session (in a speech which does not appear), prevented them from taking any further notice of Mr. Damport's motion. They narrowly escaped Elizabeth's displeasure in attacking some civil abuses. Sir Edward Hobby brought in a bill to prevent certain exactions made for their own profit by the officers of the exchequer. Two days after he complained that he had been very sharply rebuked by some great personage, not a member of the house, for his speech on that occasion. But instead of testifying indignation at this breach of their privileges, neither he nor the house thought of any further redress than by exculpating him

ourned on account of the speaker's illness, the unconquerable Peter Wentworth, with another member, presented a petition to the lord keeper, desiring the Lords of the upper house to join with them of the lower in imploring her majesty to entail the succession of the Crown, for which they had already prepared a bill. This step, which may seem to us rather arrogant and unparliamentary, drew down, as they must have expected, the queen's indignation. They were summoned before the council, and committed to different prisons.[424] A few days afterwards a bill for reforming the abuses of ecclesiastical courts was presented by Morice, attorney of the court of wards, and underwent some discussion in the house.[425] But the queen sent for the speaker, and expressly commanded that no bill touching matters of state or reformation of causes ecclesiastical should be exhibited; and if any such should be offered, enjoining him on his allegiance not to read it.[426] It was the custom at that time for the speaker to read and expound to the house all the bills that any member offered. Morice himself was committed to safe custody, from which he wrote a spirited letter to Lord Burleigh, expressing his sorrow for having offended the queen, but a

d pearl in her crown and diadem; but would rather leave that to her disposition, promising to examine all patents, and to abide the touchstone of the law."[431] This answer, though less stern than had been usual, was merely evasive; and in the session of 1601, a bolder and more successful attack was made on the administration than this reign had witnessed. The grievance of monopolies had gone on continually increasing; scarce any article was exempt from these oppressive patents. When the list of them was read over in the house, a member exclaimed, "Is not bread among the number?" The house seemed amazed: "Nay," said he, "if no remedy is found for these, bread will be there before the next parliament." Every tongue seemed now unloosed; each as if emulously descanting on the injuries of the place he represented. It was vain for the courtiers to withstand this torrent. Raleigh, no small gainer himself by some monopolies, after making what excuse he could, offered to give them up. Robert Cecil the secretary, and Bacon, talked loudly of the prerogative, and endeavoured at least to persuade the house that it would be fitter to proceed by petition to the queen than by a bill. But it was properly answered, that nothing had been gained by petitioni

t "these large and unusual grants, made to a most excellent princess on a most pressing and extraordinary occasion, should not at any time hereafter be drawn into a precedent," yet an equal sum was obtained in 1597, and one still greater in 1601. But money was

medy for every public mischief or danger. It may be remarked, that, the ministers, such as Knollys, Hatton, and Robert Cecil, not only sat among the Commons, but took a very leading part in their discussions; a proof that the influence of argument could no more be dispensed with than that of power. This, as I conceive, will never be the case in any kingdom where the assembly of the estates is quite subservient to the Crown. Nor should we put out of consideration the manner in which the Commons were composed. Sixty-two members were added at different times by Elizabeth to the representation; as well from places which had in earlier times discontinued their franchise, as from those to which it was first granted;[434] a very large proportion of them petty boroughs, evidently under the influence of the Crown or peerage. This had been the policy of her brother and sister, in order to counterbalance the country gentlemen, and find room fo

others contended in favour of the original usage, and seemed anxious to restore its vigour. It was alleged on the one hand by Mr. Norton that the bill would take away all pretence for sending unfit men, as was too often seen, and remove any objection that might be started to the sufficiency of the present parliament, wherein, for the most part against positive law, strangers to their several boroughs had been chosen: that persons able and fit for so great an employment ought to be preferred without regard to their inhabitancy; since a man could not be presumed to be the wiser for being a resident burgess: and that the whole body of the realm, and the service of the same, was rather to be respected than any private regard of place or person. This is a

lbeit we look on the maps that come from thence, or see letters of instruction sent; some one whom observation, experience, and due consideration of that country hath taught, can more perfectly open what shall in question thereof grow, and more effectually reason thereupon, than the skilfullest otherwise whatsoever." But the greatest mischief resulting from an abandonment of their old constitution would be the interference of noblemen with e

ibe of four pounds from Thomas Long, "being a very simple man and of small capacity to serve in that place;" and the mayor was ordered to repay the

we to him. Without repeating all the circumstances, it will be sufficient here to mention, that the Commons sent their serjeant with his mace to demand the release of Ferrers, a burgess who had been arrested on his way to the house; that the gaolers and sheriffs of London having not only refused compliance, but ill-treated the serjeant, they compelled them, as well as the sheriffs of London, and even the plaintiff who had sued the writ against Ferrers, to appear at the bar of the house, and committed them to prison; and that the king, in the presence of the judges, confirmed in the strongest manner this assertion of privilege by the Commons. It was however, so far at least as our knowledge extends, a very important novelty in constitutional practice; not a trace occurring in any former instance on record, either of a party being delivered from arrest at the mere demand of the serjeant, or of any one being committed to prison by the sole authority of the House of Commons.

440] Smalley himself above-mentioned, it having been discovered that he had fraudulently procured this arrest, in order to get rid of the debt, was committed for a month, and ordered to pay the plaintiff one hundred pounds, which was possibly the amount of what he owed.[441] One also, who had served a subp?na out of the star-chamber on a member in the session of 1584, was not only put in confinement, but obliged to pay the party's expenses, before they would discharge him, making his humble submission on his knees.[442] This is the more remarkable, inasmuch as the chancellor had but just before made answer to a committee deputed "to signify to him how by the ancient liberties of the house, the members thereof are privileged from being served with subp?nas," that "he thought the house had no such privilege, nor would he allow any precedents for it, unless they had also been ratified in the court of chancery."[443] They continued to enforce this summary mode of redress with n

gesses, shall be committed to the custody of the serjeant. The order is repeated the next day; on the next, articles of accusation are read against Storie. It is ordered on the following day that he shall be committed prisoner to the Tower. His wife soon after presents a petition, which is ordered to be delivered to the Protector. On the 20th of February, letters from Storie in the Tower are read. These probably were not deemed satisfactory, for it is

as well as to the house. But it is worthy of notice, that the Commons by their single authority commit their burgess first to their own officer, and next to the Tower; and that upon his submission they inform the Protector of their resolution to discharge him out of custody, recommending him to forgiveness as to his offence against the council, which, as they must have been aware, the privilege of parliament as to words spoken within its walls (if we are right in supposing such to have been the case) would extend to cover. It would be very unreasonable to conclude that this is the first i

the Commons to recede in some degree from the regard to their own privileges they had shown in the former case. The speaker was directed to declare this offence to the queen, and to request her mercy for the offender. Mar

tate of parliament, and especially in respect of its privileges, pretty much in the strain which the advocates of prerogative came afterwards to employ. Whatever share therefore personal resentment may have had in exasperating the house, they had a public quarrel to avenge against one of their members, who was led by pique to betray their ancient liberties. The vengeance of popular assemblies is not easily satisfied. Though Hall made a pretty humble submission, they went on, by a unanimous vote, to heap every punishment in their power upon his head. They expelled him, they imposed a fine of five hundred marks upon him, they sent him to the Tower until he should make a satisfactory retractation. At the end of the session he had not been released; nor was it the design of the Commons that his imprisonment should then terminate; but their own dissolution, which ensued, put an end to the business.[446] Hall sat in some later parliaments. This is the leading precedent, as far as records show, for the power of expulsion, which the Commons have ever retained without dispute of those who would most curtail their privileges. But in 1558 it had been put to the vote whether one ou

er appears on record till in 1586 the house appointed a committee to examine the state and circumstances of the returns for the county of Norfolk. The fact was, that the chancellor had issued a second writ for this county, on the ground of some irregularity in the first return, and a different person had been elected. Some notice having been taken of this matter in the Commons, the speaker received orders to signify to them her majesty's displeasure that "the house had been troubled with a thing impertinent for them to deal with, and only belonging to the charge and office of the lord chancellor, whom she had appointed to confer with the judges about the returns for the county of Norfolk, and to act therein according to justice and right." The house, in spite of this peremptory inhibition, proceeded to nominate a committee to examine into and report the circumstances of these returns; who reported the whole case with their opinion, that those elected on the first writ should take their seats, declaring further that they understood the chancellor and some of

ogated.[454] In one point more material, and in which they had more precedent on their side, the Commons successfully vindicated their privilege. The Lords sent them a message in the session of 1593, reminding them of the queen's want of a supply, and requesting that a committee of conference might be appointed. This was accordingly done, and Sir Robert Cecil reported from it that the Lords would consent to nothing less than a grant of three entire subsidies, the Commons having shown a reluctance to give more than two. But Mr. Francis Bacon said, "he yielded to the subsidy, but disliked that this house should join with the upper house in granting it. For the custom and privilege of this house hath always been, first to make

ndamental than those of England? and by what logic could it be proved more Turk-like to impose the tax of the twentieth penny, or to bring Spanish troops into those provinces, in contravention of their ancient charters, than to transgress the Great Charter of this kingdom, with all those unrescinded statutes and those traditional unwritten liberties which were the ancient inheritance of its subjects? Or could any one, conversant in the slightest degree with the two countries, range in the same class of absolute sovereigns the kings of France in England? The arbitrary acts of our Tudor princes, even of Henry VIII., were trifling in comparison of the despotism of Francis I. and Henry II., who forced their most tyrannical ordinances down the throats of the parliament of Paris with all the violence of military usurpers. No permanent law had ever been attempted in England, nor any internal tax imposed, without consent of the people's representatives. No law in France had ever received such consent; nor had the taxes, enormously burthensome as they were in Raleigh's time, been imposed, for one hundred and fifty years past, by any higher authority than a royal ordinance. If a few nobler spirits had protested against the excessive despotism of the house of Valois; if La Boetie had drunk at the springs of classical republicanism; if Hottoman had appealed to the records of their free

as some for lack of consideration think, nor a mere oligarchy nor democracy, but a rule mixed of all these, wherein each one of these have or should have like authority. The image whereof, and not the image but the thing indeed, is to be seen in the parliament-house, wherein you shall find these three estates; the king or queen which representeth the monarchy, the noblemen which be the aristocracy, and the burgesses and knights the democracy. If the parliament use their privileges, the king can ordain nothing without them: if he do, it is his fault in usurping it, and their fault in permitting it. Wherefore, in my judgment, those that in King Henry VIII.'s days would not grant him that his proclamations should have the force of a statute, were good fathers of the country, and worthy commendation in defending their liberty. But to what purpose is all this? To de

power, and of the acknowledged liberties of the subject, use a distinct and intelligible language; while the opposite tenets are insinuated by means of vague and obscure generalities, as in the sentence above quoted from Raleigh. Sir Thomas Smith, secretary of state to Elizabeth, has bequeathed us a valuable legacy in his treatise on the commonwealth of England. But undoubtedly he evades, as far as possible, all great constitutional principles, and treats them, if at all, with a vagueness and timidity very different from the tone

necessity of commonwealths as well as persons, which may justify, in Montesquieu's poetical language, the veiling of the statues of liberty. Thus martial law is proclaimed during an invasion, and houses are destroyed in expectation of a siege. But few governments are to be trusted with this insidious plea of necessity, which more often means their own security than that of the people. Nor do I conceive that the ministers of Elizabeth restrained this pretended absolute power, even in theory, to such cases of overbearing exigency. It was the misfortune of the sixteenth century to see kingly power strained to the highest pitch in the two principal European monarchies. Charles V. and Philip II. had crushed and trampled the ancient liberties of Ca

of its infringement can be to prove that it did not. There is something fallacious in the negative argument which he perpetually uses, that because we find no mention of any umbrage being taken at certain strains of prerogative, they must have been perfectly consonant to law. For if nothing of this could be traced, which is not so often the case as he represents it, we should remember that even when a constant watchfulness is exercised by means of political parties and a free press, a nation is seldom alive to the transgressions of a prudent and successful government. The character, which on a former occasion I have given of the English constitution under the house of Plantagenet, may still be applied to it under the line of Tu