Constitutional History of England, Vol 1 of 3

of men concerning the inheritance of the Crown during Elizabeth's lifetime, while not less than fourteen titles were idly or mischievously reckoned up, with the perfec

tle in the King of Spain, or his daughter the infanta, who afterwards married the Archduke Albert, governor of the Netherlands. Others, abhorring so odious a claim, looked to Arabella Stuart, daughter of the Earl of Lennox, younger brother of James's father, and equally descended from the stock of Henry VII., sustaining her manifest defect of primogeniture by her birth within the realm, according to the principle of law that excluded aliens from inheritance. But this principle was justly deemed inapplicable to the Crown. Clement VIII., who had no other view than to secure the re-establishment of the catholic faith in England, and had the judgment to perceive that the ascendency of Spain would neither be endured by the nation, nor permitted by the French king, favoured this claim of Arabella, who though apparently of the reformed relig

s, according to the sense which that word ought properly to bear. The house of Stuart no more came in by a clear title than the house of Brunswick; by such a title, I mean, as the constitution and established laws of this kingdom had recognised. No private man could have recovered an acre of land without proving a better right than they could make out to the Crown of England. What then had James to rest

onsent of parliament, may make statutes to limit the inheritance of the Crown as shall seem fit;-2. That a statute passed in the 35th year of King Henry VIII. enabled that prince to dispose of the succession by his last will signed with his own hand;-3. That Henry execut

Queen of Scots' ministers, that the king being at the last extremity, some one had put a stamp for him to the instrument. It is true, that he was in the latter part of his life accustomed to employ a stamp instead of making his signature. Many impressions of this are extant; but it is evident on the first inspection, not only that the presumed autographs in the will (for there are two) are not like these impressions, but that they are not the impressions of any stamp, the marks of the pen being very clearly discernible

object must have been a legitimate union; and such a hasty and furtive ceremony as they asserted to have taken place, while it would, if sufficiently proved, be completely valid, was necessary to protect them from the queen's indignation. They were examined separately upon oath to answer a series of the closest interrogatories, which they did with little contradiction, and a perfect agreement in the main; nor was any evidence worth mentioning adduced on the other side; so that, unless the rules of the ecclesiastical law are scandalously repugnant to common justice, their oaths entitled them to credit on the merits of the case.[470] The Earl of Hertford, soon after the tranquil accession of James, having long abandoned all ambitious hopes, and seeking only to establish his children's legitimacy and the honour of one who had been the victim of their unhappy loves, petitioned the king for a review of the proceedings, alleging himself to have vainly sought this at the hands of Elizabeth. It seems probable, though I have not met with any more distinct proof of it than a story in Dugdale, that he had been successful in finding the person who solemnised the marriage.[471] A commission of delegates was accordingly appointed to investigate the allegations of the earl's petition. But the jealousy that had so long oppressed this

arly contracted between the Earl of Hertford and Lady Catherine Grey, so as to make their children capable of inheritance, the title to the Crown, resulting from the statute of 35 H. 8 and the testament of that prince, will have descended, at the death of Elizabeth, on the issue of the Countess of Cumberland, the youngest daughter of the Duchess of Suffolk, Lady Frances Keyes, having died without issue.[47

ith religion, became a distinguishing tenet of the party who encouraged the Stuarts to subvert the liberties of this kingdom. In James's proclamation on ascending the throne, he sets forth his hereditary right in pompous and perhaps unconstitutional phrases. It was the first measure of parliament to pass an act of recognition, acknowledging that, immediately on the decease of Elizabeth, "the imperial crown of the realm of England did by inherent birthright, and lawful and undoubted succession, descend and c

ment as possible to his own will. Yet some considerations might have induced a prince who really possessed the king-craft wherein James prided himself, to take his measures with caution. The late queen's popularity had remarkably abated during her last years.[479] It is a very common delusion of royal personages to triumph in the people's dislike of those into whose place they expect shortly to come, and to count upon the most transitory of possessions, a favour built on hopes that they cannot realise and discontents that they will not assuage. If Elizabeth lost a great deal of that affec

, who had not unnaturally taken an extreme disgust at the presbyterian clergy of his native kingdom, by whom his life had been perpetually harassed, showed no disposition to treat these petitioners with favour.[483] The bishops had promised him an obsequiousness to which he had been little accustomed, and a zeal to enhance his prerogative which they afterwards too well displayed. His measures towards the nonconformist party had evidently been resolved upon before he summoned a few of their divines to the famous conference at Hampton Court. In the accounts that we read of this meeting, we are alternately struck with wonder at the indecent and partial behaviour of the king, and at the abject baseness of the bishops, mixed, according to the custom of servile natures, with insolence towards their opponents.[484] It was easy for a monarch and eighteen churchmen to claim the victory, be the merits of their dispute what they might, over four abashed and intimidated adversaries.[485] A very few alterations were made in the church service after this conference, but not of such moment as to reconcile probably a single minister to the established discipline.[486] The king s

ction of good. James however little heeded the popular voice, satisfied with the fulsome and preposterous adulation of his court, and intent on promulgating certain maxims concerning the dignity and power of princes, which he had already announced in his discourse on the "True Law of Free Monarchies," printed some years before in Scotland. In this treatise, after laying it down that monarchy is the true pattern of divinity, and proving the duty of passive obedience, rather singularly, from that passage in the book of Samuel where the prophet so forcibly paints the miseries of absolute power, he denies that the kings of Scotland owe their crown to any primary contract, Fergus, their progenitor, having conquered the country with his Irish; and advances more alarming tenets, as that the king makes daily statutes and

desire to please parents and friends, that often speak for their children or kindred; avoiding persons noted in religion for their superstitious blindness one way, or for their turbulent humour other ways. We do command, he says, that no bankrupts or outlaws be chosen, but men of known good behaviour and sufficient livelihood. The sheriffs are charged not to direct a writ to any ancient town being so ruined tha

he Lords replied, that having acquainted his majesty with the matter, he desired there might be a conference thereon between the two houses. Upon this message, the Commons came to a resolution that the speaker with a numerous deputation of members should attend his majesty, and report the reasons of their proceedings in Goodwin's case. In this conference with the king, as related by the speaker, it appears that he had shown some degree of chagrin, and insisted that the house ought not to meddle with returns, which could only be corrected by the court of chancery; and that since they derived all matters of privilege from him and his grant, he expected they should not be turned against him. He ended by directing the house to confer with the judges. After a debate which seems, from the minutes in the journals, to have been rather warm, it was unanimously agreed not to have a conference with the judges; but the reasons of the house's proceeding were laid before the king in a written statement or memorial, answering the several objections that his majesty had alleged. This they sent to the Lords, requesting them to deliver it to the king, and to be mediators in behalf of the house for his majesty's satisfaction; a message in rather a lower tone than they had previously taken. The king sending for the speaker privately,

, continued obstinate, conceiving that by releasing his prisoner he should become answerable for the debt. They were evidently reluctant to solicit the king's interference; but aware at length that their own authority was insufficient, "the vice-chamberlain, according to a memorandum in the journals, was privately instructed to go to the king, and humbly desire that he would be pleased to command the warden, on his allegiance, to deliver up Sir Thomas; not as petitioned for by the house, but as if himself thought it fit, out of his own gracious judgment." By this stratagem, if we may so term it, they saved the point of honour, and recovered their member.[496] The warden's apprehensions, however, of exposing himself to an action for the escape gave

were closely interwoven with the ancient and undisputed prerogatives of the Crown. Complaints were uttered, and innovations projected by the Commons of 1604, which Elizabeth would have met with an angry message, and perhaps visited with punishment on the proposers. James however was not entirely averse to some of the projected alterations, from which he hoped to derive a pecuniary advantage. The two principal grievances were, purveyance and the incidents of military tenure. The former had been restrained by not less than thirty-six statutes, as the Commons assert in a petition to the king; in spite of which the impressing of carts and carriages, and the exaction of victuals for the king's use, at prices far below the true value, and in quantity beyond what was necessary, continued to prevail under authority of commissions from the board of green cloth, and was enforced, in case of demur or resistance, by imprisonment under their warrant. The purveyors, indeed, are described as living at free quarters upon the country, felling woods without the owners' consent, and commanding labour with little or no

obstinate determination not to yield to any of their wishes would hardly be shaken by a liberal grant of money. They had even passed the usual bill granting tonnage and poundage for life, with certain reservations that gave the court offence, and which apparently they afterwards omitted. But there was so little disposition to do

t, desiring "that such their protestation might be recorded to all posterity;" they maintain, on the contrary, "1. That their privileges and liberties are their right and inheritance, no less than their very lands and goods; 2. That they cannot be withheld from them, denied or impaired, but with apparent wrong to the whole state of the realm; 3. That their making request, at the beginning of a parliament, to enjoy their privilege, is only an act of manners, and does not weaken their right; 4. That their house is a court of record, and has been ever so esteemed; 5. That there is not the highest standing court in this land that ought to enter into competition, either for dignity or authority, with this high court of parliament, which, with his majesty's royal assent, gives law to other courts, but from other courts receives neither laws nor orders; 6. That the House of Commons is the sole proper judge of return of all such writs, and the election of all such members as belong to it, without which the freedom of election were not entire." They aver that in this session the privileges of the house have been more universally and dangerously impugned than ever, as they suppose, since the beginnings of parliaments. That in regard to the late queen's sex and age, and much more upon care to avoid all trouble, which by wicked practice might have been drawn to impeach the quiet of his majesty's right in the succession, those actions were then passed over which they hoped in succeeding times to redress and rectify; whereas, on the contrary, in this parliament, not privileges, but the whole freedom of the parliament and realm had been hewed from them. "What cause," they proceed, "we, your poor Commons, have to watch over our privileges is manifest in itself to all m

t the same bill could not be proposed twice in one session.[506] They voted a liberal subsidy, which the king, who had reigned three years without one, had just cause to require. For though he had concluded a peace with Spain soon after his accession, yet the late queen had left a debt of ￡400,000, and other charges had fallen on the Crown. But the bill for this subsidy lay a good while in the House of Commons, who came to a vote that it should not pass till

temporary effect?[508] Yet Hume, ever prone to eulogise this monarch at the expense of his people, while he bestows merited praise on his speech in favour of the union, which is upon the whole a well-written and judicious performance, charges the parliament with prejudice, reluctance, and obstinacy. The code, as it may be called, of international hostility, those numerous statutes treating the northern inhabitants of this island as foreigners and enemies, were entirely abrogated. And if the Commons, while both the theory of our own constitution was so unsettled and its practice so full of abuse, did not precipitately give in to schemes that might create still further difficulty in all questions between the Crown and themselves, schemes, too, which there was no imperious motive for carrying into effect at that juncture, we may justly consider it as an additional proof of their wisdom and public spirit. Their slow progress howe

lves; that he would give leave to such persons as he had blamed for their speeches to clear themselves in his hearing; and that he would by some gracious message make known his intention that they should deliver their opinions with full liberty, and without fear. The speaker next day communicated a slight but civil answer he had received from the king, importing his wish to preserve their privileges, especially that of liberty of speech.[511] This, however, did not prevent his sending a message a few days afterwards, commenting on their debates, and on some clauses they had introduced into the bill for the abolition of all hostile laws.[512] And a petition having been prepared by a committee under the house's direction for better execution of the laws against recusants, the speaker, on its being moved that the petition be read, said that his majesty had taken notice of the petition as a thing belonging to himself, concerning which it was needless to press him. This interference provoked some members to resent it, as an infringement of their liberties. The speaker replied th

after receiving the report of a committee on the subject, the house prayed a conference with the Lords. They, who acted in this and the preceding session as the mere agents of government, intimated in their reply, that they thought it an unusual matter for the Commons to enter upon, and took time to consider about a conference. After some delay this was granted, and Sir Francis Bacon reported its result to the lower house. The Earl of Salisbury managed the conference on the part of the Lords. The tenor of his speech, as reported by Bacon, is very remarkable. After discussing the merits of the petition, and considerably extenuating the wrongs imputed to Spain, he adverted to the circumstance of its being presented to the Commons. The Crown of England was invested, he said, with an absolute power of peace and war; and inferred, from a series of precedents which he vouched, that petitions made in parliament, intermeddling with such matters, had gained little success; that great inconveniences must follow from the public debate of a king's designs, which, if they take wind, must be frustrated; and that if parliaments have ever been made acquainted with matter of peace or war in a general way, it was either when the king and council conceived that it was material to have some declaration of the zeal and affection of the people, or else when they needed money for the charge of a war, in which case they should be sure enough to hear of it; that the Lords would make a good construction of the Commons' desire, that it sprang from a forwardness to assist his majesty's

ommon profit thereof, saving the ancient aids and prises due and accustomed;" the king explicitly renouncing the custom he had lately set on wool. Thus the letter of the statute and the history of the times conspire to prove, that impositions on merchandise at the ports, to which alone the word prises was applicable, could no more be levied by the royal prerogative after its enactment, than internal taxes upon landed or movable property, known in that age by the appellations of aids and tallages. But as the former could be assessed with great ease, and with no risk of immediate resistance, and especially as certain ancient customs were preserved by the statute,[517] so that a train of fiscal officers, and a scheme of regulations and restraints upon the export and import of goods became necessary, it was long before the sovereigns o

Reports, to have been extra-judicially referred to the judges, unless it were rather as assistants to the privy council that their opinion was demanded. This entry concludes abruptly, without any determination of the judges.[518] But we may presume, that if any such had been given in favour of the Crown, it would have been made public. And that the majority of the bench would not have favoured this claim of the Crown, we may strongly presume from their doctrine in a case of the same description, wherein they held the assessment of treble custom on aliens for violation of letters patent to be absolutely against the law.[519] The administration, however, would not release this duty, which continued to be paid under Elizabeth. She also imposed one upon sweet wines. We read of no complaint

jects, exercised in ordinary courts, and called common law, which cannot be changed in substance without parliament. The king's absolute power is applied to no particular person's benefit, but to the general safety; and this is not directed by the rules of common law, but more properly termed policy and government, varying according to his wisdom for the common good; and all things done within those rules are lawful. The matter in question is matter of state, to be ruled according to policy by the king's extraordinary power. All customs (duties so called) are the effects of foreign commerce; but all affairs of commerce and all treaties with foreign nations belong to the king's absolute power; he therefore who has power over the cause, must have it also over the effect. The seaports are the king's gates, which he may open and shut to whom he pleases." The ancient customs on wine and wool are asserted to have originated in the

nted a strong remonstrance against this inhibition; claiming "as an ancient, general, and undoubted right of parliament to debate freely all matters which do probably concern the subject; which freedom of debate being once foreclosed, the essence of the liberty of parliament is withal dissolved. For the judgment given by the exchequer, they take not on them to review it, but desire to know the reasons whereon it was grounded; especially as it was generally apprehended that the reasons of that judgment extended much farther, even to the utter ruin of the ancient liberty of this kingdom, and of the subjects' right of property in their lands and goods."[528] "The policy and constitution of this your kingdom (they say) appropriates unto the kings of this realm, with the assent of the parliament, as well the sovereign power of making laws, as that of taxing, or imposing upon the subjects' goods or merchandises, as may not, without their consents, be altered or changed. This is the cause that the people of this kingdom, as they ever showed themselves faithful and loving to their kings, and ready to aid them, in all their just occasions, with voluntary contributions; so have they been ever careful to preserve their own liberties and rights, when anything hath been done to prejudice or impeach the same. And therefore when their princes, occasioned either by their wars, or their over-great bounty, or by any other necessity, have without consent of parliament set impositions, either within the land, or upon commodities either exported or imported by the merchants, they have, in open parliament, complained of it, in that it was done without their consents: and thereupon never failed to obtain a spe

government. These canons, though never authentically published till a later age, could not have been secret. They consist of a series of propositions or paragraphs, to each of which an anathema of the opposite error is attached; deducing the origin of government from the patriarchal regimen of families, to the exclusion of any popular choice. In those golden days the functions both of

d perhaps by rebellion; but out of rebellion what right could spring? Or were it even by voluntary concession, could a king alienate a divine gift, and infringe the order of Providence? Could his grants, if not in themselves null, avail against his posterity, heirs like himself under the great feoffment of creation? These conseque

quitous and corrupt, procedure of the ecclesiastical tribunals. But the civilians, supported by the prelates, loudly complained of these prohibitions, which seem to have been much more frequent in the latter years of Elizabeth and the reign of James, than in any other period. Bancroft accordingly presented to the star-chamber, in 1605, a series of petitions in the name of the clergy, which Lord Coke has denominated Articuli Cleri, by analogy to some similar representations of that order under Edward II.[531] In these it was complained that the courts of law interfered by continual prohibitions with a jurisdiction as established and as much derived from the king as their own, either in cases which were clearly within that jurisdiction's limits, or on the slightest suggestion of some matter belonging to the temporal court. It was hinted that the whole course of granting prohibitions was an encroachment of the king's bench and common pleas, and that they could regularly issue only out of chancery. To each of these articles of complaint, extending to twenty-five, the judges made separate answers, in a rough, and, so

f constraint, but of his own benignity, or by reason of the promise made upon oath at the time of his coronation. And though at his coronation he take an oath not to alter the laws of the land, yet this oath notwithstanding, he may alter or suspend any particular law that seemeth hurtful to the public estate. Thus much in short, because I have heard some to be of opinion that the laws are above the king." And in treating of the Parliament, Cowell observes: "Of these two one must be true, either that the king is above the parliament, that is, the positive laws of his kingdom, or else that he is not an absolute king. And

ms of eulogy, gave very just scandal to the House of Commons. They solicited and obtained a conference with the lords, which the attorney-general, Sir Francis Bacon, managed on the part of the lower house; a remarkable proof of his adroitn

t which his successors have always reckoned so essential a part of their mystery. He wanted a considerable sum of money to defray the king's debts, which, on his coming into the office of lord treasurer after Lord Buckhurst's death, he had found to amount to ￡1,300,000, about one-third of which was still undischarged. The ordinary expense also surpassed the revenue by ￡81,000. It was impossible that this could continue, without i

tion and temperature of this estate, so hath it been the principal means of upholding the same, in such sort as that their kings have been just, beloved, happy, and glorious, and the kingdom itself peaceable, flourishing, and durable so many ages. And the effect, as well of the contentment that the subjects of this kingdom have taken in this form of government, as also of the love, respect, and duty, which they have by reason of the same rendered unto their princes, may appear in this, that they have, as occasion hath required, yielded more extraordinary and voluntary contribution to assist their kings, than the subjects of any other known kingdom whatsoever. Out of this root hath grown the indubitable right of the people of this kingdom, not to be made subject to any punishment that shall extend to their lives, lands, bodies, or goods, other than such as are ordained by the common laws of this land, or the statutes made by their common consent in parliament. Nevertheless, it is apparent, both that proclamations have been of late years much more frequent than heretofore, and that they are extended, not only to the liberty, but also to the goods, inheritances, and livelihood of men; some of them tending to alter some points of the law, and make a new; other some made, shortly after a session of parliament, for matter directly rejected in the same session; other appointing punishments to be inflicted before lawful trial and

ng shires of Gloucester, Worcester, Hereford, and Salop,[536] some patents of monopolies, and a tax under the name of a licence recently set upon victuallers. The king answered these remonstrances with civility, making, as usual, no conces

s were content to give. After some days' pause upon this proposition, they represented to the Lords, with whom, through committees of conference, the whole matter had been discussed, that if such a sum were to be levied on those only who had lands subject to wardship, it would be a burthen they could not endure; and that if it were imposed equally on the kingdom, it would cause more offence and commotion in the people than they could risk. After a good deal of haggling, Salisbury delivered the king's final determination to accept of ￡200,000 per annum, which the Commons voted to grant as a full composition for abolishing the right of wardship, and dissolving the court that managed it, and for taking away all purveyance; with some further concessions, and particularly, that the king's claim to lands should be bound by sixty years' prescription. Two points yet remained, of no small moment; namely, by what assurance they could secure themselves against the king's prerogative, so often held up by court lawyers as something uncontrollable by statute, and by what means so great an imposition should be levied; but the consideration of these was reserved for the ensuing session, which was to take place in October.[537] They were prorogued

the royal stock, and as a native of a hostile and hateful kingdom, come to succeed the most renowned of sovereigns, and to grasp a sceptre which deep policy and long experience had taught her admirably to wield.[539] The people were proud of martial glory, he spoke only of the blessing of the peacemakers; they abhorred the court of Spain, he sought its friendship; they asked indulgence for scrupulous consciences, he would bear no deviation from conformity; they writhed under the yoke of the bishops, whose power he thought necessary to his own; they were animated by a

wards; an office both lucrative and productive of much influence. But he came into the scheme of abolishing it with a readiness that did him credit. His chief praise, however, was his management of continental relations. The only minister of James's cabinet who had been trained in the councils of Elizabeth, he retained some of her jealousy of Spain, and of her regard for the protestant interests. The court of Madrid, aware both of the king's pusillanimity and of his favourable dispositions, affected a tone in the conferences held in 1604, about a treaty of peace, which Elizabeth would have resented in a very different manner.[543] On this occasion, he not only deserted the United Provinces, but gave hopes to Spain that he might, if they persevered in their obstinacy, take part against them. Nor have I any doubt that his blind attachment to that power would have precipitated him into a ruinous connect

relied on finding his unfathomable stores of precedent subservient to their purposes. But soon after his promotion, Coke, from various causes, began to steer a more independent course. He was little formed to endure a competitor in his own profession, and lived on ill terms both with the lord chancellor Egerton, and with the attorney-general, Sir Francis Bacon. The latter had long been his rival and enemy. Discountenanced by Elizabeth, who, against the importunity of Essex, had raised Coke over his head, that great and aspiring genius was now high in the king's favour. The chief justice affected to look down on one as inferior to him in knowledge of our muni

monstrance against these proclamations. Coke replied, that it was a matter of great importance, on which he would confer with his brethren. "The chancellor said, that every precedent had first a commencement, and he would advise the judges to maintain the power and prerogative of the king; and in cases wherein there is no authority and precedent, to leave it to the king to order in it according to his wisdom and for the good of his subjects, or otherwise the king would be no more than the Duke of Venice; and that the king was so much restrained in his prerogative, that it was to be feared the bonds would be broken. And the lord privy-seal (Northampton) said, that the physician was not always bound to a precedent, but to apply his medicine according to the quality of the disease; and all concluded that it should be necessary at that time to confirm the king's prerogative, with our opinions, although that there were not any former precedent or authority in law; for every precedent ought to have a commencement. To which I answered, that true it is that every precedent ought to have a commencement; but when authority and precedent is wanting, there is need of great consideration before that anything of novelty shall be established, and to p

ring on compulsion. The House of Commons had in the last session requested that no one should be bound to lend money to the king against his will. The king had answered that he allowed not of any precedents from the time of usurping or decaying princes, or people too bold and wanton; that he desired not to govern in that commonwealth where the people be assured of everything and hope for nothing, nor would he leave to posterity such a mark of weakness on his reign; yet, in the matter of loans, he would refuse no reasonable excuse.[549] Forced loans or benevolences were directly prohibited by an act of

liter? vocales of the house, and drawing the chief constituent bodies of the assembly, the country gentlemen, the merchants, the courtiers, to act for the king's advantage; that it would be expedient to tender voluntarily certain graces and modifications of the king's prerogative, such as might with smallest injury be conceded, lest they should be first demanded, and in order to save more important points.[552] This advice was seconded by Sir Henry Neville, an ambitious man, who had narrowly escaped in the queen's time for having tampered in Essex's conspiracy, and had much promoted the opposition in the late parliament, but was now seeking the post of secretary of state. He advised the king, in a very

fully expected. Except the repeal of a strange act of Henry VIII., allowing the king to make such laws as he should think fit for the principality of Wales without consent of parliament,[555] none of them could perhaps be reckoned of any constitutional importance. In all domanial and fiscal causes, and wherever the private interests of the Crown stood in competition with those of a subject, the former enjoyed enormous and supe

some aspersion on the Commons. They were immediately in a flame, and demanded reparation. This Neyle was a man of indifferent character, and very unpopular from the share he had taken in the Earl of Essex's divorce, and from his severity towards the puritans; nor did the house fail to comment upon all his faults in their debate. He had, however, the prudence to excuse himself ("with many tears," as the Lords' Journals inform us), denying the most offensive words imputed to him; and the affair went no farther.[558] This ill-humour of the Commons disconcerted those who had relied on

sitions, and postpone supply till their grievances should be redressed.[561] Aware of the impossibility of conquering their resolution, the king carried his measure into effect by a dissolution.[562] They had sat about two months, and, what is perhaps unprecedented in our history, had not passed a single bill. James followed up this strong step by

the requisition of that more than half involuntary contribution, miscalled a benevolence. It began by a subscription of the nobility and principal persons about the court. Letters were sent written to the sheriffs and magistrates, directing them to call on people of ability. It had always been supposed doubtful whether the statute of Richard III. abrogating "exactions, called benevolences," should extend to voluntary gifts at the solicitation of the Crown. The language used in that act certainly implies that the pretended benevolences of Edward's reign had been extorted against the subjects' will; yet if positive violence were not 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 so

d III., as a compassing of the king's death. James, however, took it up with indecent eagerness. Peacham was put to the rack, and examined upon various interrogatories, as it is expressed by secretary Winwood, "before torture, in torture, between torture, and after torture." Nothing could be drawn from him as to any accomplices, nor any explanation of his design in writing the sermon; which was probably but an intemperate effusion, so common among the puritan clergy. It was necessary therefore to rely on this, as the overt act of treason. Aware of the difficulties that attended this course, the king directed Bacon previously to confer with the judges of the king's bench, one by one, in order to secure their determina

legal seisin of the land, stood bound by private engagement to suffer another, called the cestui que use, to enjoy its use and possession. Such fiduciary estates were well known to the Roman jurists, but inconsistent with the feudal genius of our law. The courts of justice gave no redress, if the feoffee to uses violated his trust by detaining the land. To remedy this, an ecclesiastical chancellor devised the writ of subp?na, compelling him to answer upon oath as to his trust. It was evidently necessary also to restrain him from proceeding, as he might do, to obtain possession; and this gave rise to injunctions, that is, prohibitions to sue at law, the violation of which was punishable by imprisonment as a contempt of court. Other instances of breach of trust occurred in personal contracts, and others wherein, without any trust, there was a wrong committed beyond the competence of the courts of law to redress; to all which the process of subp?na was made applicable. This extension of a novel jurisdiction was partly owing to a fundamental principle of our common law, that a defendant cannot be examined, so that, if no witness or written instrument could be produced to prove a demand, the plaintiff was wholly debarred of justice; but in a still greater degree, to a strange

who held the great seal. It happened that an action was tried before him, the precise circumstances of which do not appear, wherein the plaintiff lost the verdict, in consequence of one of his witnesses being artfully kept away. He had recourse to the court of chancery, filing a bill against the defendant to make him answer upon oath, which he refused to do, and was committed for contempt. Indictments were upon this preferred, at Coke's instigation, against the parties who had filed the bill in chancery, their counsel and solicitors, for suing in another court after judgment obtained at law; which was alleged to be contrary to the statute of pr?munire. But the grand jury, though pressed, as is said, by one of the judges, threw out these i

ial points of the case, had disputed the king's general prerogative of making such a grant. The king, on receiving information of this, signified to the chief justice through the attorney-general, that he would not have the court proceed to judgment till he had spoken with them. Coke requested that similar letters might be written to the judges of all the courts. This having been done, they assembled,

his own mouth. Upon his return to London, the twelve judges appeared as culprits in the council-chamber. The king set forth their misdemeanours, both in substance and in the tone of their letter. He observed that the judges ought to check those advocates who presume to argue against his prerogative; that the popular lawyers had been the men, ever since his accession, who had trodden in all parliaments upon it, though the law could never be respected if the king were not reverenced; that he had a double prerogative-whereof the one was ordinary, and had relation to his private

judges: Whether, if at any time, in a case depending before the judges, his majesty conceived it to concern him either in power or profit, and thereupon required to consult with them, and that they should stay proceedings in the meantime, they ought not to stay accordingly? They all, except the chief justice, declared that they would do so, and acknowledged it to be their duty; Hobart, chief justice of the common pleas, adding that he would ever tru

earning; and their authority in ordinary matters of law is still held high. But, having been induced by a sense of duty, or through the ascendancy that Coke had acquired over them, to make a show of withstanding the court, they behaved like

is great experience in business rendered him useful; and had the satisfaction of voting for an enormous fine on his enemy the Earl of Suffolk, late high-treasurer, convicted in the star-chamber of embezzlement.[572] In the parliament of 1621, and still more conspicuously in that of 1628, he became, not with

nstigation (whether by the king's personal warrant, or that of the council-board, does not appear), and lay in gaol to the day of his death; the archbishop constantly opposing his discharge for which he petitioned.[573] Whitelock, a barrister and afterwards a judge, was brought before the star-chamber on the charge of having given a private opinion to his client, that a certain commission issued by the Crown was illegal. This was said to be a high contempt and slander of the king's prerogative. But, after a speech from Bacon in aggravation of this offence, the delinquent was discharged on a humble submission.[574] Such too was the fate of a more distinguished person on a still more prepost

ath.[576] At the trial of Raleigh she was present; and Cecil openly acquitted her of any share in the conspiracy.[577] She enjoyed afterwards a pension from the king, and might have died in peace and obscurity, had she not conceived an unhappy attachment for Mr. Seymour, grandson of that Earl of Hertford, himself so memorable an example of the perils of ambitious love. They were privately married; but on the fact transpiring, the council, who saw with jealous eyes the possible union of two dormant pretensions to the Crown, committed them to the Tower.[578] They both made their escape; but Arabella was arrested and brought back. Long and hopeless calamity br

whispered, as if the death of Overbury was connected with something that did not yet transpire, and which every effort was employed to conceal. The people, who had already attributed Prince Henry's death to poison, now laid it at the door of Somerset; but for that conjecture, however highly countenanced at the time, there could be no foundation. The symptoms of the prince's illness, and the appearances on dissection, are not such as could result from any poison, and manifestly indicate a malignant fever, aggravated perhaps by injudicious treatment.[581] Yet it is

ht contrary to law, even in that age of ready convictions. It was a severe measure to detain for twelve years in prison so splendid an ornament of his country, and to confiscate his whole estate.[584] For Raleigh's conduct in the expedition to Guiana, there is not much excuse to make. Rashness and want of foresight were always among his failings; else he would not have undertaken a service of so much hazard without obtaining a regular pardon for his former offence. But it might surely be urged that either his commission was absolutely null, o

to the wiser maxim he had laid down in his own Basilicon Doron, never to seek a wife for his son except in a protestant family. But his absurd pride made him despise the uncrowned princes of Germany. This Spanish policy grew much more odious after the memorable events of 1619, the election of the king's son-in-law to the throne of Bohemia, his rapid downfall, and the conquest of the Upper Palatinate by Austria. If James had listened to some sanguine advisers, he would in the first instance have supported the pretensions of

large benefit, the popular odium fell of course on the monopolists. Of these the most obnoxious was Sir Giles Mompesson, who, having obtained a patent for gold and silver thread, sold it of baser metal. This fraud seems neither very extraordinary nor very important; but he had another patent for licensing inns and alehouses, wherein he is said to have used extreme violence and oppression. The House of Commons proceeded to investigate Mompesson's delinquency. Conscious that the Crown had withdrawn its protection, he fled beyond sea. One Michell, a justice of peace, who had been the instrument of his tyranny, fell into the hands of the Commons, who voted him incapable of being in the commission

and the Lancastrian kings; and partly from the preference the Tudor princes had given to bills of attainder or of pains and penalties, when they wished to turn the arm of parliament against an obnoxious subject. The revival of this ancient mode of proceeding in the case of Mompesson, though a remarkable event in our constitutional annals, does not appear to have been noticed as an anomaly. It was not indeed conducted according to all the forms of an impeachment. The Commons, requesting a conference with the other house, informed them generally

st Field, Bishop of Landaff, for being concerned in a matter of bribery.[594] The first of these was punished; but the prosecution of Bennet seems to have dropped in consequence of the adjournment, and

ribed the prosecution to the malevolence of Sir Edward Coke.[595] But Coke took no prominent share in this business; and though some of the charges against Bacon may not appear very heinous, especially for those times, I know not whether the unanimous conviction of such a man, and the conscious pusillanimity of his defence do not a

hat he was a Roman catholic. Nothing could exceed the fury into which the Commons were thrown by this very insignificant story. A flippant expression, below the cognisance of an ordinary court, grew at once into a portentous offence, which they ransacked their invention to chastise. After sundry novel and monstrous propositions, they fixed upon the most degrading punishment they could devise. Next day, however, the chancellor of the exchequer delivered a message, that the king, thanking them for their zeal, but desiring that it should

he Lords requested a conference, which they managed with more temper, and notwithstanding the solicitude displayed by the Commons to maintain their pretended right, succeeded in withdrawing the matter to their own jurisdiction.[599] This conflict of privileges was by no means of service to the unfortunate culprit; the Lords perceived that they could not mitigate the sentence of the lower house without reviving their dispute, and vindicated themselves from all suspicion of indifference towards the cause of the Palatinate by augmenting its severity. Floyd was adjudged to be degraded from his gentility, and to be held an infamous person; his testimony not to be received; to ride from the Fleet to Cheapside on horseback without a saddle, with his face to the horse's tail, and the tail in his hand, and there to

re me with a jealous distrust of that indefinable, uncontrollable privilege of parliament, which has sometimes been asserted, and perhaps with rather too much encouragement from those whose function it is to restrain all exorbitant power. I speak only of the extent to which theoretical principles have been carried, without insinuating that the privileges of the House of Commons have been practically s

on the king about the breach of their privilege of free speech, by the imprisonment of Sir Edwin Sandys, in 1614, for words spoken in the last parliament; but the house did not prosecute this matter, contenting itself with some explanation by the secretary of state.[603] They were going on with some bills for reformation of abuses, to which the king was willing to accede, when they received an intimation that he expected them to adjourn over the summer. It produced a good deal of dissatisfaction to see their labour so hastily interrupted; especially as they ascribed it to a want of sufficient sympathy on

y of troops under Sir Horace Vere, who still defended the Lower Palatinate. It was necessary to vote more money, lest these should mutiny for want of pay. And it was stated to the Commons in this conference, that to maintain a sufficient army in that country for one year would require ￡900,000; which was left to their consideration.[607] But now it was seen that men's promises to spend their fortunes in a cause not essentially their own are written in t

e courtiers opposed it as without precedent; the chancellor of the duchy observing that it was of so high and transcendent a nature, he had never known the like within those walls. Even the mover defended it rather weakly, according to our notions, as intended only to remind the king, but requiring no answer. The scruples affected by the courtiers, and the real novelty of the proposition, had so great an effect, that some words were inserted, declaring that the house "did not mean to press on the king's most undoubted and royal prerogative."[610] The petition, however, had not been presented, when the king, having obtained a copy of it, sent a peremptory letter to the speaker, that he had heard how some fiery and popular spirits had been imboldened to debate and argue on matters far beyond their reach or capacity, and directing him to a

erty of speech, calling it their ancient and undoubted right, and an inheritance received from their ancestors, which they again prayed him to confirm.[612] His answer, though considerably milder than what he had designed, gave indications of a resentment not yet subdued. He dwelt at length on their unfitness for entering on matters of government, and commented with some asperity even on their present apologetical petition. In the conclusion he observed that "although he could not allow of the style, calling their privileges an undoubted right and inheritance, but could

and the other ministers, admitted the king's expressions to be incapable of defence, and called them a slip of the pen at the close of a long answer.[614] The Commons were not to be diverted by any such excuses from their necessary duty of placing on record a solemn claim of right. Nor had a letter from the king, addressed to Calvert, much influence; wherein, while he reiterated his assurances of respecting their privileges, and tacitly withdrew th

maintenance of laws, and redress of mischiefs and grievances which daily happen within this realm, are proper subjects and matter of counsel and debate in parliament; and that in the handling and proceeding of those businesses, every member of the house hath, and of right ought to have, freedom of speech to propound, treat, reason, and bring to conclusion, the same: that the Commons in parliament have like liberty and freedom to treat of those matters in such order as in their judgments shall seem fittest: and that every such member of the

egular manner in which, according to him, it was voted, and its ambiguous and general wording, which might serve in future times to invade most of the prerogatives annexed to the imperial Crown. In his proclamation for dissolving the parliament, James recapitulated all his grounds of offences; but finally required his subjects to take notice that it was his intention to govern them as his progenitors and predecessors had done, and to call a parliament again on the first convenient occasion.[617] He immediately followed up this dissolution of parliament by dealing his vengeance on its most conspicuous leaders: Sir Edward Coke and Sir Robert Philips were committed to the Tower; Mr. Pym, and one or two more, to other prisons; Sir Dudley Digges, and several who were somewhat less obnoxious than the former, were sent on

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, than two hundred years might seem, as we read them, to have been mistaken in their date.[620] Heedless, 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 history.[621] It is only necessary to remind the reader that the king was induced, during the residence of Prince Charles and the Duke of Buckingham in Spain, to swear to

lication to naval and military armaments, it should be paid into the hands of treasurers 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 matters of state to their consideration, but promising not to treat

English law which insists on the viva voce examination, being as yet unknown, or dispensed with in political trials. Nothing is more worthy of notice in the proceedings upon this impeachment than what dropped from Sir Edwin Sandys, in speaking upon one of the charges. Middlesex had laid an imposition of ￡3 per ton on French wines, for taking off which he received a gratuity. Sandys, commenting on this offence, protested in the name of the Commons, that they intended not to question the power of imposing claimed by the king's prerogative: this they touched not upon now; they continued only their claim,

using any trade.[626] This is of a declaratory nature, and recites that they are already contrary to the ancient and fundamental laws of the realm. Scarce any difference arose between the Crown and the Commons. This singular calm might probably have been interrupted, had not the king put an end to the session. They expressed some little

binding the subject by proclamation, and of levying customs at the out-ports. They had secured beyond controversy their exclusive privilege of determining contested elections of their members. They had maintained, and carried indeed to an unwarrantable extent, their power of judging and inflicting punishment, even for offences not committed against their house. Of these advantages some were evidently incomplete; and it would require the most vigorous exertions of future parliaments to reali