Constitutional History of England, Henry VII to George II. Volume 1 of 3

by Henry Hallam

FOOTNOTES

[1] Cf. Historical Essays and Studies, vol. ii. p. 505

[2] Europe during the Middle Ages, Chapter VIII. Part 3. I may remind the reader that Hallam regarded his Constitutional History as a continuation of this chapter, which sketches the development of the constitution from the earliest times down to the accession of Henry VII., the point at which the present work begins.

[3] English Law at the Renaissance, p. 27.

[4] Middle Ages (12th ed.), ii. p. 267.

[5] This statute is not even alluded to in Ruffhead's edition, and has been very little noticed by writers on our law or history. It is printed in the late edition, published by authority, and is brought forward in the First Report of the Lords' Committee, on the dignity of a Peer (1819), p. 282. Nothing can be more evident than that it not only establishes by a legislative declaration the present constitution of parliament, but recognises it as already standing upon a custom of some length of time.

[6] The pleadings, as they are called, or written allegations of both parties, which form the basis of a judicial enquiry, commence with the declaration, wherein the plaintiff states, either specially, or in some established form, according to the nature of the case, that he has a debt to demand from or an injury to be redressed by, the defendant. The latter, in return, puts in his plea; which, if it amount to a denial of the facts alleged in the declaration, must conclude to the country, that is, must refer the whole matter to a jury. But if it contain an admission of the fact, along with a legal justification of it, it is said to conclude to the court; the effect of which is to make it necessary for the plaintiff to reply; in which replication he may deny the facts pleaded in justification, and conclude to the country; or allege some new matter in explanation, to show that they do not meet all the circumstances, concluding to the court. Either party also may demur, that is, deny that, although true and complete as a statement of facts, the declaration or plea is sufficient according to law to found or repel the plaintiff's suit. In the last case it becomes an issue in law, and is determined by the judges without the intervention of a jury; it being a principle, that by demurring, the party acknowledges the truth of all matters alleged on the pleadings. But in whatever stage of the proceedings either of the litigants concludes to the country (which he is obliged to do, whenever the question can be deduced to a disputed fact), a jury must be impanelled 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 afterwards the cause was so tried, and such a verdict returned, with the subsequent entry of the judgment itself, form the record.

This is merely intended to explain the phrase in the text, which common readers might not clearly understand. The theory of special pleading, as it is generally called, could not be further elucidated without lengthening this note beyond all bounds. But it all rests upon the ancient maxim: "De facto respondent juratores, de jure judices." Perhaps it may be well to add one observation—that in many forms of action, and those of most frequent occurrence in modern times, it is not required to state the legal justification on the pleadings, but to give it in evidence on the general issue; that is, upon a bare plea of denial. In this case the whole matter is actually in the power of the jury. But they are generally bound in conscience to defer, as to the operation of any rule of law, to what is laid down on that head by the judge; and when they disregard his directions, it is usual to annul the verdict, and grant a new trial. There seem to be some disadvantages in the annihilation, as it may be called, of written pleadings, by their reduction to an unmeaning form, which has prevailed in three such important and extensive forms of action, as ejectment, general assumpsit, and trover; both as it throws too much power into the hands of the jury, and as it almost nullifies the appellant jurisdiction, which can only be exercised where some error is apparent on the face of the record. But great practical convenience, and almost necessity, has generally been alleged as far more than a compensation for these evils.

[7] The population for 1485 is estimated by comparing a sort of census in 1378, when the inhabitants of the realm seem to have amounted to about 2,300,000, with one still more loose under Elizabeth 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 Henry VII. is probably not too low an estimate.

[8] Rot. Parl. vi. 270. But the pope's bull of dispensation for the king's marriage speaks of the realm of England as "jure hæreditario ad te legitimum in illo prædecessorum tuorum successorem pertinens." Rymer, xii. 294. And all Henry's own instruments claim an hereditary right, of which many proofs appear in Rymer.

[9] Stat. 11 H. 7, c. 1.

[10] Blackstone (vol. iv. c. 6) has some rather perplexed reasoning on this statute, leaning a little towards the de jure doctrine, and at best confounding moral with legal obligations. In the latter sense, whoever attends to the preamble of the act will see that Hawkins, whose opinion Blackstone calls in question, is right; and that he is himself wrong in pretending that "the statute of Henry VII. does by no means command any opposition to a king de jure, but excuses the obedience paid to a king de facto.

[11] 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 (besides some others that are rather too much wanting in it), would be a valuable accession 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 former writers, and is indeed obvious; 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 acted upon, in this reign, that in 11 H. 7 the judges held that the donor of an estate-tail might restrain the tenant from suffering a recovery. Id. p. 159, from the year-book.

[12] It is said by the biographer of Sir Thomas More, that parliament refused the king a subsidy in 1502, which he demanded on account of the marriage 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 is dashed." This of course displeased Henry, who would not, however, he says, "infringe the ancient liberties of that house, which would have been odiously taken." Wordsworth's Eccles. Biography, ii. 66. This story is also told by Roper.

[13] Stat. 11 H. 7, c. 10. Bacon says the benevolence 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 divers of your subjects severally;" and contains a provision, that no heir shall be charged on account of his ancestor's promise.

[14] Hall, 502.

[15] Turner's History of England, iii. 628, from a MS. document. A vast number of persons paid fines for their share in the western rebellion of 1497, from £200 down to 20s. Hall, 486. Ellis's Letters illustrative of English History, i. 38.

[16] 1 H. 8, c. 8.

[17] 2 H. 7, c. 3. Rep. 1 H. 8, c. 6.

[18] They were convicted by a jury, and afterwards attainted by parliament, but not executed for more than 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 singular 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.

[19] Lord Hubert inserts an acute speech, which he seems to ascribe to More, arguing more acquaintance with sound principles of political economy than was usual in the 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 liberty on another occasion, throwing his own broad notions of religion into an imaginary speech of some unnamed member of the Commons, though manifestly unsuited to the character 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. 8, 1630, p. 124.

[20] Roper's Life of More; Hall, 656, 672. This chronicler, who wrote under Edward VI., is our best witness for the events of Henry's reign. Grafton is so literally a copyist from him, that it was a great mistake to republish this part of his chronicle in the late expensive, and therefore incomplete, collection; since he adds no one word, and omits only a few ebullitions of protestant zeal which he seems to have considered too warm. Holingshed, though valuable, is later than Hall. Wolsey, the latter observes, gave offence to the Commons, by descanting on the wealth and luxury of the nation, "as though he had repined or disclaimed that any man should fare well, or be well clothed, but himself."

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

"Please it your good Lordships to understand, that sithence the beginning of the Parliament, there hath been the greatest and sorest hold in the Lower House for the payment of two shillings of the pound, that ever was seen, I think, in any parliament. This matter hath been debated, and beaten fifteen or sixteen days together. The highest necessity alledged 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 every quarter, as by the commoners, citizens, and burgesses. There hath been such hold that the House was like to have been dissevered; that is to say, the knights being of the King's council, the King's servants and gentlemen of the one party; which in so long time were spoken with, and made to see, yea, it may fortune, contrary to their heart, will, and conscience. Thus hanging this matter, yesterday the more part being the King's servants, gentlemen, were there assembled; and so they, being the more part, willed and gave to the King two shillings of the pound of goods or lands, the best to be taken for the King. All lands to pay two shillings of the pound for the laity, to the highest. The goods to pay two shillings of the pound, for twenty pound upward; and from forty shillings of goods, to twenty pound, to pay sixteen pence of the pound; and under forty shillings, every person to pay eight pence. This to be paid in two years. I have heard no man in my life that can remember that ever there was given to any one of the King's ancestors half so much at one graunt. Nor, I think, there was never such a president seen before this time. I beseeke Almighty God, it may be well and peaceably levied, and surely payd unto the King's grace, without grudge, and especially without loosing the good will and true hearts of his subjects, which I reckon a far greater treasure for the King than gold and silver. And the gentlemen that must take pains to levy this money among the King's subjects, I think, shall have no little business about the same." Strype's Eccles. Memorials, vol. i. p. 49. This is also printed in Ellis's Letters illustrative of English History, i. 220.

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

[22] Hall, 645. This chronicler says the laity were assessed at a tenth part. But this was only so of the smaller estates, namely, from £20 to £300; for from £300 to £1000 the contribution demanded was twenty marks for each £100, and for an estate of £1000, two hundred marks, and so in proportion upwards. MS. Instructions to Commissioners, penes auctorem. This was, "upon sufficient promise and assurance, to be repaid unto them upon such grants and contributions as shall be given and granted to his grace at his next parliament."—Ib. "And they shall practise by all the means to them possible that such sums as shall be so granted by the way of loan, be forthwith levied and paid, or the most part, or at the least the moiety thereof, the same to be paid in as brief time after as they can possibly persuade and induce them unto; showing unto them that, for the sure payment thereof, they shall have writings delivered unto them under the king's privy seal by such person or persons as shall be deputed by the king to receive the said loan, after the form of a minute to be shown unto them by the said commissioners, the tenor whereof is thus: We, Henry VIII., by the grace of God, King of England and of France, Defender of Faith, and Lord of Ireland, promise by these presents truly to content and repay unto our trusty and well-beloved subject A. B. the sum of ——, which he hath lovingly advanced unto us by way of loan, for defence of our realm, and maintenance of our wars against France and Scotland; In witness whereof we have caused our privy seal hereunto to be set and annexed the —— day of ——, the fourteenth year of our reign."—Ib. The rate fixed on the clergy I collect by analogy, from that imposed in 1525, which I find in another manuscript letter.

[23] A letter in my possession from the Duke of Norfolk to Wolsey, without the date of the year, relates, I believe, to this commission of 1525, rather than that of 1522; it being dated on the 10th April, which 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 first commission, being of the 14th year of the king's reign, must have sat later than Easter 1522. He informs the cardinal, that from twenty pounds upward there were not twenty in the county of Norfolk who had not consented. "So that I see great likelihood that this grant shall be much more than the loan was." It was done, however, very reluctantly, as he confesses; "assuring your grace that they have not granted the same without shedding of many salt tears, only for doubt how to find money to content the king's highness." The resistance went further than the duke thought fit to suppose; for in a very short time the insurrection of the common people took place in Suffolk. In another letter from him and the Duke of Suffolk to the cardinal they treat this rather lightly, and seem to object to the remission of the contribution.

This commission issued soon after the news of the battle of Pavia arrived. The pretext was the king's intention to lead an army into France. Warham wrote more freely than the Duke of Norfolk as to the popular discontent, in a letter to Wolsey, dated April 5. "It hath been showed me in a secret manner of my friends, the people sore grudgeth and murmureth, and speaketh cursedly among themselves, as far as they dare, saying that they shall never have rest of payments as long as some liveth, and that they had better die than to be thus continually handled, reckoning themselves, their children, and wives, as despoulit, and not greatly caring what they do, or what becomes of them.... Further I am informed, that there is a grudge newly now resuscitate, and revived in the minds of the people; for the loan is not repaid to them upon the first receipt of the grant of parliament, as it was promised them by the commissioners, showing them the king's grace's instructions, containing the same, signed with his grace's own hand in summer, that they fear not to speak, that they be continually beguiled, and no promise is kept unto them; and thereupon some of them suppose that if this gift and grant be once levied, albeit the king's grace go not beyond the sea, yet nothing shall be restored again, albeit they be showed the contrary. And generally it is reported unto me, that for the most part every man saith he will be contented if the king's grace have as much as he can spare, but verily many say they be not able to do as they be required. And many denieth not but they will give the king's grace according to their power, but they will not anywise give at other men's appointments, which knoweth not their needs.... I have heard say, moreover, that when the people be commanded to make fires and tokens of joy for the taking of the French king, divers of them have spoken that they have more cause to weep than to rejoice thereat. And divers, as it hath been showed me secretly, have wished openly that the French king were at his liberty again, so as there were 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 thereof much more chargeful than the winning. Also it hath been told me secretly that divers have recounted and repeated what infinite sums of money the king's grace hath spent already in invading France, once in his own royal person, and two other sundry times by his several noble captains, and little or nothing in comparison of his costs hath prevailed; insomuch that the king's grace at this hour hath not one foot of land more in France than his most noble father had, which lacked no riches or wisdom to win the kingdom of France, if he had thought it expedient." The archbishop goes on to observe, rather oddly, that "he would that the time had suffered that this practising with the people for so great sums might have been spared till the 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 payment as was required of them, and their unwillingness to be sworn as to the value of their goods. The archbishop seems to have thought it passing strange that people would be so wrongheaded about their money. "I have been," he says, "in this shire twenty years and above, and as yet I have not seen men but would be conformable to reason, and would be induced to good order, till this time; and what shall cause them now to fall into these wilful and indiscreet ways, I cannot tell, except poverty and decay of substance be the cause of it.

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

[25] Hall, 699.

[26] The word impeachment 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, where Cromwell so ably defended his fallen master that nothing was done upon them. "Upon this honest beginning," says Lord Herbert, "Cromwell obtained his first reputation." I am disposed to conjecture from Cromwell's character and that of the House of Commons, as well as from some passages of Henry's subsequent behaviour towards the cardinal, 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.

[27] Rot. Parl. vi. 164; Burnet, Appendix, No. 31. "When this release of the loan," says Hall, "was known to the commons of the realm, Lord! so they grudged and spake ill of the whole parliament; for almost every man counted it his debt, and reckoned surely of the payment of the same, and therefore some made their wills of the same, and some other did set it over to other for debt; and so many men had loss by it, which caused them sore to murmur, but there was no remedy."—P. 767.

[28] Stat. 35 H. 8, c. 12. I find in a manuscript, which seems to have been copied from an original in the exchequer, that the monies thus received by way of loan in 1543 amounted to £110,147 15s. 8d. There was also a sum called devotion money, amounting only to £1,093 8s. 3d., levied in 1544, "of the devotion of his highnesse's subjects for Defence of Christendom against the Turk.

[29] Lodge's Illustrations of British History, 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 gave £6807; Kent £6471; Suffolk £4512; Norfolk £4046; Devon £4527; Essex £5051; but Lancaster only £660; and Cumberland, £574. The whole produced £119,581 7s. 6d. besides arrears. In Haynes's State Papers, p. 54, we find a curious minute of Secretary Paget, 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.

[30] Lodge, p. 80. Lord Herbert mentions this story, and observes, that Reed having been taken by the Scots, was compelled to pay much more for his ransom than the benevolence required of him.

[31] Rhymer, xv. 84. These commissions bearing date 5th January 1546.

[32] Hall, 622. Hume, who is favourable to Wolsey, says, "There is no reason to think the sentence against Buckingham unjust." But no one who reads the trial will find any evidence to satisfy a reasonable mind; and Hume himself soon after adds, that his crime proceeded more from indiscretion than deliberate malice. In fact, the condemnation of this great noble was owing to Wolsey's resentment, acting on the savage temper of Henry.

[33] Several letters that passed between the council and Duke of Norfolk (Hardwicke State Papers, i. 28, etc.) tend to confirm what some historians have hinted, that he was suspected of leaning too favourably towards the rebels. The king was most unwilling to grant a free pardon. Norfolk is told, "If you could, by any good means or possible dexterity, reserve a very few persons for punishments, you should assuredly administer the greatest pleasure to his highness that could be imagined, and much in the same advance your own honour."—P. 32. He must have thought himself in danger from some of these letters, which indicate the king's distrust of him. He had recommended the employment of men of high rank as lords of the marches, instead of the rather inferior persons whom the king had lately chosen. This called down on him rather a warm reprimand (p. 39); for it was the natural policy of a despotic court to restrain the ascendency of great families; nor were there wanting very 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 and MSS., H. 8, 1830, p. 518 et alibi. They contain a good deal of interesting matter as to the northern rebellion, which gave Henry a pretext for great severities towards the monasteries in that part of England.

[34] Pole, at his own solicitation, was appointed legate to the Low Countries in 1537, 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 difficult not to suspect that he was influenced by ambitious views in a proceeding so treasonable, and so little in conformity with his polished manners and temperate life. Philips, his able and artful biographer, both proves and glories in the treason. Life of Pole, sect. 3.

[35] Coke's 4th Institute, 37. It is, however, said by Lord Herbert and others, that the Countess of Salisbury and the Marchioness of Exeter were not heard in their defence. The acts of attainder against them were certainly hurried through parliament; but whether without hearing the parties, does not appear.

[36] Burnet observes, that Cranmer was absent the first day the bill was read, 17th June 1540; and by his silence leaves the reader to infer that he was so likewise on 19th June, when it was read a second and third time. But this, I fear, cannot be asserted. He is marked in the journal as present on the latter day; and there is the following entry; "Hodie lecta est pro secundo et tertio, billa attincturæ Thomæ Comitis Essex, et communi omnium procerum tunc præsentium concessu nemine discrepante, expedita est." And at the close of the session, we find a still more remarkable testimony to the unanimity of parliament, in the following words: "Hoc animadvertendum est, quod in h^aac sessione cum proceres darent suffragia, et dicerent sententias super actibus prædictis, ea erat concordia et sententiarum conformitas, ut singuli iis et eorum singulis assenserint, nemine discrepante. Thomas de Soulemont, Cleric. Parliamentorum." As far therefore as entries on the journals are evidence, Cranmer was placed in the painful 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.

[37] Burnet has taken much pains with the subject, and set her innocence in a very clear light (i. 197 and iii. 114). See also Strype, i. 280, and Ellis's Letters, ii. 52. But Anne had all the failings of a vain, weak woman, raised suddenly to greatness. She behaved with unamiable vindictiveness towards 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 inveterate partiality of his profession, has used every oblique artifice to lead his readers into a belief of Anne Boleyn's guilt, while he affects to hold the balance, and state both sides of the question without determining it. Thus he repeats what he must have known to be the strange and extravagant lies of Sanders about her birth; without vouching for them indeed, but without any reprobation of their absurd malignity. Lingard's Hist. of England, vi. 153 (8vo. edit). Thus he intimates that "the records of her trial and conviction have perished, perhaps by the hands of those who respected her memory" (p. 316); though, had he read Burnet with any care, he would have found that they were seen by that historian, and surely have not perished since by any unfair means; not to mention that the record of a trial contains nothing from which a party's guilt or innocence can be inferred. Thus he says that those who were executed on the same charge with the queen, neither admitted nor denied the offence, for which they suffered; though the best informed writers assert that Norris constantly declared the queen's innocence and his own.

Dr. Lingard can hardly be thought serious, when he takes credit to himself, in the commencement of a note at the end of the same volume, for not "rendering his book more interesting, by representing her as an innocent and injured woman, falling a victim to the intrigues of a religious faction." He well knows that he could not have done so, without contradicting the tenor of his entire work, without ceasing, as it were, to be himself. All the rest of this note is a pretended balancing of evidence, in the style of a judge who can hardly bear to put for a moment the possibility of a prisoner's innocence.

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

[38] The lords pronounced a singular sentence, that she should be burned or beheaded at the king's pleasure. Burnet says the judges complained of this as unprecedented. Perhaps in strictness the king's right to alter a sentence is 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 1791, were condemned to be burned. But the two queens of Henry, the Countess of Salisbury, 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 Somerset and Lord Audley. I know not why the latter obtained this favour; for it had been refused to Lord Stourton, hanged for murder under Mary, as it was afterwards to Earl Ferrers.

[39] It is often difficult to understand the grounds of a parliamentary attainder, for which any kind of evidence was thought sufficient; and the strongest proofs against Catherine Howard undoubtedly related to her behaviour before marriage, which could be no legal crime. But some of the depositions extend further.

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

[40] Stat. 26 H. 8, c. 13.

It may be here observed, that the act attainting Catherine Howard of treason proceeds to declare 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 notwithstanding. 33 H. 8, c. 21. This may be presumed therefore to be the earliest instance of the king's passing bills in this manner.

[41] 22 H. 8, c. 18.

[42] 28 H. 8, c. 7.

[43] 35 H. 8, c. 1.

[44] 28 H. 8, c. 17.

[45] 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 proclamations, which altered laws, and laid taxes on spiritual persons. He justly observes that the restrictions 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 disobedience of the king's proclamations by some "who did not consider what a king by his royal power might do, which if it continued would tend to the disobedience of the laws of God, and the dishonour of the king's majesty, who might full ill bear it," etc. 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 property, proceeds, "nor shall by virtue of the said act suffer any pains of death." But an exception is afterwards made for "such persons which shall offend against any proclamation to be made by the king's highness, 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.

[46] Gray has finely glanced at this bright point of Henry'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,

Who broke the bonds of Rome."

In a poet, this was a fair employment of his art; but the partiality of Burnet towards Henry VIII. is less warrantable; and he should have blushed to excuse, by absurd and unworthy sophistry, 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 sanguinary, and of better faith towards his neighbours.

[47] 1 Edw. 6, c. 12. By this act it is provided that a lord of parliament shall have the benefit of clergy though he cannot read. Sect. 14. Yet one can hardly believe, that this provision was necessary at so late an æra.

[48] 2 Strype, 147, 341, 491.

[49] Id. 149. Dr. Lingard has remarked an important change in the coronation ceremony of Edward VI. Formerly, the king had taken an oath to preserve the liberties of the realm, and especially those granted by Edward the Confessor, etc., 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 Rymer, vii. 158. But 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 imperial of this realm, etc., and asked if they would serve him and assent to his coronation, as by their duty of allegiance they were bound to do. All this was before the oath. 2 Burnet, Appendix, p. 93.

Few will pretend that the coronation, or the coronation oath, were 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 recollection that could make their sovereignty appear to be of popular origin.

[50] Haynes's state papers contain many curious proofs of the incipient amour between Lord Seymour and Elizabeth, and show much indecent familiarity on one side, with a little childish coquetry on the other. These documents also rather tend to confirm the 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 Seymour, that, had the former proved immediately 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.

[51] Journals, Feb. 27, March 4, 1548-9. From these I am led to doubt whether the commons actually heard witnesses against Seymour, which Burnet and Strype have taken for granted.

[52] Stat. 5 and 6 Edw. VI., c. 11, s. 12.

[53] Burnet, ii. 243. An act was made to confirm deeds of private persons, dated during Jane's ten days, concerning which some doubt 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 traiterous rebellion and usurpation."

It appears that the young king's original intention was to establish a modified Salic law, excluding 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 Katharine; and in every instance, except Jane, excluding the female herself. Strype's Cranmer, Append. 164. A late author, on consulting the original MS., in the king's handwriting, 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. 451. 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.

[54] Burnet, Strype, iii. 50, 53; Carte, 290. I doubt whether we have anything in our history more like conquest than the administration of 1553. The queen, in the month only of October, presented to 256 livings, restoring all those turned out under the acts of uniformity. Yet the deprivation of the bishops might be justified probably by the terms of the commission they had taken out in Edward's reign, to hold their sees during the king's pleasure, for which was afterwards substituted "during good behaviour." Burnet, App. 257; Collier, 218.

[55] Burnet, 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.

[56] Carte, 330.

[57] Haynes, 195; Burnet, ii. Appendix, 256, iii. 243.

[58] Burnet, ii. 347. Collier, ii. 404, and Lingard, vii. 266 (who, by the way, confounds this commission with something different two years earlier) will not hear of this allusion to the inquisition. But Burnet has said nothing that is not perfectly just.

[59] Strype, iii. 459.

[60] See Stafford's proclamation from Scarborough Castle, Strype, iii. Appendix, No. 71. It contains no allusion to religion, both parties being weary of Mary's Spanish counsels. The important letters of Noailles, the French ambassador, to which Carte had access, and which have since been printed, have afforded information to Dr. Lingard, and with those of the imperial ambassador, Renard, which I have not had an opportunity of seeing, throw much light on this reign. They certainly appear to justify the restraint put on Elizabeth, who, if not herself privy to the conspiracies planned in her behalf (which is, however, very probable), was at least too dangerous to be left at liberty. Noailles intrigued with the malcontents, and instigated the rebellion of Wyatt, of which Dr. Lingard gives a very interesting account. Carte, indeed, differs from him in many of these circumstances, though writing from the same source, and particularly denies that Noailles gave any encouragement to Wyatt. It is, however, evident from the tenor of his despatches that he had gone great lengths in fomenting the discontent, and was evidently desirous of the success of the insurrection (iii. 36, 43, etc.). This critical state of the government may furnish the usual excuse for its rigour. But its unpopularity was brought on by Mary's breach of her word as to religion, and still more by her obstinacy in forming her union with Philip against the general voice of the nation, and the opposition of Gardiner; who, however, after her resolution was taken, became its strenuous supporter in public. For the detestation in which the queen was held, see the letters of Noailles, passim; but with some degree of allowance for his own antipathy to her.

[61] Burnet, i. 117. The king refused his assent to a bill which had passed both houses, but apparently not of a political nature. Lords' Journals, p. 162.

[62] Burnet, 190.

[63] Id. 195, 215. This was the parliament, in order to secure favourable elections for which the council had written letters to the sheriffs. These do not appear to have availed so much as they might hope.

[64] Carte, 311, 322; Noailles, v. 252. He says that she committed some knights to the Tower for their language in the house. Id. 247. Burnet, p. 324, mentions the same.

[65] Burnet, 322; Carte, 296. Noailles says, that a third part of the Commons in Mary's first parliament was hostile to the repeal of Edward's laws about religion, 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 member, 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 contentione, disputatione acri, et summo labore fidelium factum est." Lingard, Carte, Philips's Life of Pole. Noailles speaks repeatedly of the strength of the protestant party, and of the enmity which the English nation, as he expresses it, bore to the pope. But the aversion to the marriage with Philip, and dread of falling under the yoke of Spain, was common to both religions, with the exception of a few mere bigots to the church of Rome.

[66] Noailles, vol. 5, passim.

[67] Strype, ii. 394.

[68] Strype, iii. 155; Burnet, ii. 228.

[69] Burnet, ii. 262, 277.

[70] Noailles, v. 190. Of the truth of this plot there can be no rational ground to doubt; even Dr. Lingard has nothing to advance against it but the assertion of Mary's counsellors, the Pagets and Arundels, 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.

[71] Henry VII. first established a band of fifty archers to wait on him. Henry VIII. had fifty horse-guards, each with an archer, demilance 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.

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

[73] Commonwealth of England, book 3, c. 1. The statute 26 H. 8, c. 4 enacts, that if a jury in Wales acquit a felon, contrary to good and pregnant evidence, or otherwise misbehave themselves, the judge may bind them to appear before the president and council of the Welsh marches. The partiality of Welsh jurors was notorious in that age; and the reproach has not quite ceased.

[74] State Trials, i. 901; Strype, ii. 120. In 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 towards the insurgents than a constitutional principle.

[75] 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-chamber, as the concilium was then called] being holden coram rege et concilio, it is, or may be, compounded of three 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, etc., and the two chief justices, or in their absence other two justices, are standing judges of this court. 3. The 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 cannot comprehend; for surely the calling of them in that case was not made legitimate by any act of parliament; neither without their right were they more apt to be judges than any other inferior persons 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 any of his council 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 appear before the king and his privy council. Ibid.

[76] The privy council sometimes met in the star-chamber, and made orders. See one in 18 H. 6, Harl. MSS. Catalogue, N. 1878, 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 immediate purpose, that this decree was supposed to require an act of parliament for its confirmation; so far was the government of Henry VIII. from arrogating a legislative power in matters of private right.

[77] Lord Hale thinks that the jurisdiction of the council was gradually "brought into great disuse, though there remain some straggling 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 the council, as contrary to Magna Charta and the known laws."—P. 39. He seems to admit afterwards, 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 Edward 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 degree, though not absolutely disused, their exercise of jurisdiction for some time before the accession of the house of Tudor.

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

I will here observe that this part of our ancient constitutional history is likely to be elucidated by a friend of my own, who has already given evidence to the world of his singular competence for such an undertaking, and who unites, with all the learning and diligence of Spelman, Prynne, and Madox, an acuteness and vivacity of intellect which none of those writers possessed.

[78] 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 maintenance.

[79] Plowden's Commentaries, 393. In the year-book itself, 8 H. 7, pl. ult. the word star-chamber is not used. It is held in this case, that the chancellor, treasurer, and privy-seal were the only judges, 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.

[80] Hist. of Henry VII. in Bacon's works, ii. p. 290.

[81] The result of what has been said in the last pages 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 full force till beyond the middle of Henry VIII.'s reign, but not long afterwards 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. No part of the jurisdiction exercised by the star-chamber could be maintained on the authority of the statute of Henry VII.

[82] Burnet, ii. 324.

[83] 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 historian is hardly less so. An entry on the journals, 7 H. 8, drawn of course by some ecclesiastic, particularly complains of Standish as the author of periculosissimæ seditiones inter clericam et secularem potestatem.

[84] Burnet is confident that the answer to Luther was not written by Henry (vol. iii. 171), and others have been of the same opinion. The king, however, in his answer to Luther's apologetical letter, where this was insinuated, declares it to be his own. From Henry's general character and proneness to theological disputation, it may be inferred that he had at least a considerable share in the work, though probably with the assistance of some who had more command of the Latin language. Burnet mentions in another place, that he had seen a copy of the Necessary Erudition of a Christian Man, full of interlineations by the king.

[85] Epist. Lutheri ad Henricum regem missa, etc. Lond. 1526. The letter bears date at Wittenberg, September 1, 1525. It had no relation, therefore, to Henry's quarrel with the Pope, though probably Luther imagined that the king was becoming more favourably disposed. After saying that he had written against the king "stultus ac præceps," which was true, he adds, "invitantibus iis qui majestati tuæ parum favebant," which was surely a pretence; since who, at Wittenberg, in 1521, could have any motive to wish that Henry should be so scurrilously treated? He then bursts out into the most absurd attack on Wolsey; "illud monstrum et publicum odium Dei et hominum, Cardinalis Eboracensis, pestis illa regni tui." This was a singular style to adopt in writing to a king, whom he affected to propitiate; Wolsey being nearer than any man to Henry's heart. Thence, relapsing into his tone of abasement, he says, "ita ut vehementer nunc pudefactus, metuam oculos coram majestate tuâ levare, qui passus sim levitate istâ me moveri in talem tantumque regem per malignos istos operarios; præsertim cum sim fœx et vermis, quem solo contemptu oportuit victum aut neglectum esse," etc. Among the many strange things which Luther said and wrote, I know not one more extravagant than this letter, which almost justifies the supposition that there was a vein of insanity in his very remarkable character.

[86] Collier, vol. ii. Appendix, No. 2. In the Hardwicke Papers, i. 13, we have an account of the ceremonial of the first marriage of Henry with Catherine in 1503. It is remarkable that a person was appointed to object publicly in Latin to the marriage, as unlawful, for reasons he should there exhibit; "whereunto Mr. Doctor Barnes shall reply, and declare solemnly, also in Latin, the said marriage to be good and effectual in the law of 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 offence to scrupulous minds.

[87] See Burnet, Lingard, Turner, and the letters lately printed in State Papers, temp. Henry VIII. pp. 194, 196.

[88] Burnet wishes to disprove the bribery 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 Sorbonne. Burnet himself proves that some of the cardinals were bribed by the king's ambassador, both in 1528 and 1532. Vol. i. Append. pp. 30, 110. See, too, Strype, i. Append. No. 40.

The same writer will not allow that Henry menaced the university of Oxford in case of non-compliance; 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.

[89] The king's marriage is related by the earlier historians to have taken place November 14, 1532. Burnet however is convinced by a letter of Cranmer, who, he says, could not be mistaken, though he was not apprised of the fact till some time afterwards, that it was not solemnised till about the 25th of January (vol. iii. p. 70). This letter has since been published in the Archæologia, vol. xviii., and in Ellis's Letters, ii. 34. Elizabeth was born September 7, 1533; for though Burnet, on the authority, he says, of Cranmer, places her birth on September 14, the former date is decisively confirmed by letters in Harl. MSS. 283, 22, and 787, 1 (both set down incorrectly in the catalogue). If a late historian therefore had contented himself with commenting on these dates and the clandestine nature of the marriage, he would not have gone beyond the limits of that character of an advocate for one party which he has chosen to assume. It may not be unlikely, though by no means evident, that Anne's prudence, though, as Fuller says of her, "she was cunning in her chastity," was surprised at the end of this long courtship. I think a prurient curiosity about such obsolete scandal very unworthy of history. But when this author asserts Henry 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 infecundity of Anne," and all this on no other authority than a letter of the French ambassador, which amounts hardly to evidence of a transient rumour, we cannot but complain of a great deficiency in historical candour.

[90] The principal authority on the story of Henry's divorce from Catherine is Burnet, in the first and third volumes of his History of the Reformation; the latter correcting the former from additional documents. Strype, in his Ecclesiastical Memorials, adds some particulars not contained in Burnet, especially as to the negotiations with the pope in 1528; and a very little may be gleaned from Collier, Carte, and other writers. There are few parts of history, on the whole, that have been better elucidated. One exception perhaps may yet be made. The beautiful and affecting story of Catherine's behaviour before the legates at Dunstable is told by Cavendish and Hall, from whom later historians have copied it. Burnet, however, in his third volume, p. 46, disputes its truth, and on what should seem conclusive authority, that of the original register, whence it appears that the queen 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 accordingly treated the story as a fabrication. Hume of course did not choose to omit so interesting a circumstance; but Dr. Lingard has pointed out a letter of the king, which Burnet himself had printed, vol. i. Append. 78, mentioning the queen's presence as well as his own, on June 21, and greatly corroborating the popular account. To say the truth, there is no small difficulty in choosing between two authorities so considerable, if they cannot be reconciled, which seems impossible: but, upon the whole, 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 Catherine's appeal to Henry, de integritate corporis usque ad secundas nuptias servatâ, without reply on his part, is an important circumstance as to that part of the question. It is however 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 opposed to the assertion of so virtuous a woman. Dr. Lingard says that all the favourable answers which the king obtained from foreign universities went upon the supposition that the former marriage had been consummated, and were of no avail unless that could be proved. See a letter of Wolsey to the king, July 1, 1527, printed in State Papers, temp. Henry VIII. p. 194; whence it appears that the queen had been consistent in her denial.

[91] Stat. 21, Hen. 8, cc. 5, 6; Strype, i. 73; Burnet, 83. It cost a thousand marks to prove Sir William Compton's will in 1528. These exactions had been much augmented by Wolsey, who interfered, as legate, with the prerogative court.

[92] It is hard to say what were More's original sentiments about the divorce. In a letter to Cromwell (Strype, i. 183, and App. No. 48; Burnet, App. p. 280) he speaks of himself as always doubtful. But, if his disposition had not been rather favourable to the king, would he have been offered, or have accepted, the great seal? We do not indeed find his name in the letter of remonstrance to the pope, signed by the nobility and chief commoners in 1530, which Wolsey, though then in disgrace, very willingly subscribed. But in March, 1531, he went down to the House of Commons, attended by several lords, to declare the king's scruples 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 Roman see. The king did not look upon him as hostile; for even so late as 1532, 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.

[93] 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 23rd; 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 favour 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.

[94] Burnet, iii. 44; and App. 24.

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

[96] Strype, i. 151 et alibi.

[97] Strype, passim. Tunstal, Gardiner, and Bonner wrote in favour of the royal supremacy; all of them, no doubt, insincerely. The first of these has escaped severe censure by the mildness of his general character, but was full as much a temporiser as Cranmer. But the history of this period has been written with such undisguised partiality by Burnet and Strype on the one hand, and lately by Dr. Lingard on the other, that it is almost amusing to find the most opposite conclusions and general results from nearly the same premises. Collier, though with many prejudices of his own, is, all things considered, the fairest of our ecclesiastical writers as to this reign.

[98] Burnet, 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.

[99] Harmer's Specimens of Errors in Burnet.

[100] Strype, i. Append. 19.

[101] Burnet; Strype. Wolsey alleged as the ground for this suppression, the great wickedness that prevailed therein. Strype says the number is twenty; but Collier, ii. 19, reckons them at forty.

[102] Collier, though not implicitly to be trusted, tells some hard truths, and charges Cromwell with receiving bribes from several abbeys, in order to spare them. P. 159. This is repeated by Lingard, on the authority of some Cottonian manuscripts. Even Burnet speaks of the violent proceedings of a Doctor Loudon towards the monasteries. This man was of infamous character, and became afterwards a conspirator against Cranmer, and a persecutor of protestants.

[103] Burnet, 190; Strype, i. ch. 35, see especially p. 257; Ellis's Letters, ii. 71. We should be on our guard against the Romanising high-church men, such as Collier, and the whole class of antiquaries, Wood, Hearne, Drake, Browne, Willis, etc., etc., 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 current opinion, and that general testimony which carries conviction, than the relaxed and vicious state of those foundations for many ages before their fall. Ecclesiastical 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 we find in Wilkins, iii. 630, a bull of Innocent VIII. for the reform 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 his monks. Those who reject at once the reports of Henry's visitors will do well to consider this. See also Fosbrooke's British Monachism, passim.

[104] 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 religious houses of monks, canons, and nuns, where the congregation of such religious persons is under the number of twelve persons," bestows praise on many of the greater 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 abolishes them; which is rather more remarkable, as in some instances the religious had been induced to confess their evil lives and ill deserts. Burnet, 236.

[105] Id. ibid. and Append. p. 151; Collier, 167. The pensions to the superiors of the dissolved greater monasteries, says a writer not likely to spare Henry's government, appear to have varied from £266 to £6 per annum. The priors of cells received generally £13. A few, whose services had merited the distinction, obtained £20. To the other monks were allotted pensions of six, four, or two pounds, with a small sum to each at his departure, to provide for his immediate wants. The pensions to nuns averaged about £4. Lingard, vi. 341. He admits that these were ten times their present value in money; and surely they were not unreasonably small. Compare them with those, generally and justly thought munificent, which this country 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 cannot of course be denied that the compulsory change of life was to many a severe and an unmerited hardship; but no great revolution, and the Reformation as little as any, could be achieved without much private suffering.

[106] The abbots sat till the end of the first session of Henry's sixth parliament, the act extinguishing them not having passed till the last day. In the next session they do not appear, the writ of summons not being supposed to give them personal seats. There are indeed so many parallel instances among spiritual lords, and the principle is so obvious, that it would not be worth noticing, but for a strange 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 Rochester, whether, after resigning his see, he would not retain his seat as a lord of parliament; in consequence of which his resignation was not accepted.

[107] Burnet, i. Append. 96.

[108] P. 268. Dr. Lingard, on the authority of Nasmith's edition of Tanner's Notitia Monastica, puts the annual revenue of all the monastic houses at £142,914. This would only be one-twentieth part of the rental of the kingdom, if Hume were right in estimating that at three millions. But this is certainly by much too high. The author of Harmer's Observations on Burnet, as I have mentioned above, says the monks will be found not to have possessed above one-fifth of the kingdom, and in value, by reason of their long leases, not one-tenth. But on this supposition, the crown's gain was enormous.

According to a valuation in Speed's Catalogue of Religious Houses, apud Collier, Append. p. 34, sixteen mitred abbots had revenues above £1000 per annum. St. Peter's, Westminster, was the richest, and valued at £3977, Glastonbury at £3508, St. Alban's at £2510, etc.

[109] An act entitling the queen to take into her hands, on the avoidance of any bishopric, so much of the lands belonging to it as should be equal in value to the impropriate rectories, etc., within the same, belonging to the crown, and to give the latter in exchange, was made (1 Eliz. c. 19). This bill passed on a division in the Commons by 104 to 90, and was ill taken by some of the bishops, who saw themselves reduced to live on the lawful subsistence of the parochial clergy. Strype's Annals, i. 68, 97.

[110] Burnet, 268, 339. In Strype, i. 211, we have a paper drawn up by Cromwell for the king's inspection, setting forth what might be done with the revenues of the lesser monasteries. Among a few other particulars are the following: "His grace may furnish 200 gentlemen to attend on his person; every one of them to have 100 marks yearly—20,000 marks. His highness may assign to the yearly reparation of highways in sundry parts, or the doing of other good deeds for the commonwealth, 5000 marks." In such scant proportion did the claims of public utility come after those of selfish pomp, or rather perhaps, looking more attentively, of cunning corruption.

[111] Burnet, i. 223.

[112] It is a favourite theory with many who regret the absolute secularisation of conventual estates, that they might have been rendered useful to learning and religion by being bestowed on chapters and colleges. Thomas Whitaker has sketched a pretty scheme for the abbey of Whalley, wherein, besides certain opulent prebendaries, he would provide for schoolmasters and physicians. I suppose this is considered an adherence to the donor's intention, and no sort of violation of property; somewhat on the principle called cy près, adopted by the court of chancery in cases of charitable bequests; according to which, that tribunal, if it holds the testator's intention unfit to be executed, carries the bequest into effect by doing what it presumes to come next in his wishes, though sometimes very far from them. It might be difficult indeed to prove that a Norman baron, who, not quite easy about his future prospects, took comfort in his last hours from the anticipation of daily masses for his soul, would have been better satisfied that his lands should maintain a grammar-school, than that they should escheat to the crown. But to waive this, and to revert to the principle of public utility, it may possibly be true that, in one instance, such as Whalley, a more beneficial disposition could have been made in favour of a college than by granting away the lands. But the question is, whether all, or even a great part, of the monastic estates could have been kept in mortmain with advantage. We may easily argue that the Derwentwater property, applied as it has been, has done the state more service, than if it had gone to maintain a race of Ratcliffes, and been squandered at White's or Newmarket. But does it follow that the kingdom would be the more prosperous, if all the estates of the peerage were diverted to similar endowments? And can we seriously believe that, if such a plan had been adopted at the suppression of monasteries, either religion or learning would have been the better for such an inundation of prebendaries and schoolmasters.

[113] The first act for the relief of the impotent poor passed in 1535 (27 H. 8, c. 25). By this statute no alms were allowed to be given to beggars, on pain of forfeiting ten times the value; but a collection was to be made in every parish. The compulsory contributions, properly speaking, began in 1572 (14 Eliz. c. 5). But by an earlier statute (1 Edward 6, c. 3), the bishop was empowered to proceed in his court against such as should refuse to contribute, or dissuade others from doing so.

[114] The Institution was printed in 1537; the Erudition, according to Burnet, in 1540; but in Collier and Strype's opinion, not till 1543. They are both artfully drawn, probably in the main by Cranmer, but not without the interference of some less favourable to the new doctrine, and under the eye of the king himself. Collier, 137, 189. The doctrinal variations in these two summaries of royal faith are by no means inconsiderable.

[115] Strype, i. 165. A statute enacted in 1534 (25 H. 8, c. 15), after reciting that "at this day there be within this realm a great number cunning and expert in printing, and as able to execute the said craft as any stranger," proceeds to forbid the sale of bound books imported from the Continent. A terrible blow was thus levelled both against general literature and the reformed religion; but, like many other bad laws, produced very little effect.

[116] The accounts of early editions of the English Bible in Burnet, Collier, Strype, and an essay by Johnson in Watson's Theological Tracts, vol. iii., are erroneous or defective. A letter of Strype in Harleian MSS. 3782, which has been printed, is better; but the most complete enumeration is in Cotton's list of editions, 1821. The dispersion of the Scriptures, with full liberty to read them, was greatly due to Cromwell, as is shown by Burnet. Even after his fall, a proclamation, dated May 6, 1542, referring to the king's former injunctions for the same purpose, directs a large Bible to be set up in every parish church. But, next year, the Duke of Norfolk and Gardiner prevailing over Cranmer, Henry retraced a part of his steps; and the act 34 H. 8, c. 1. forbids the sale of Tindal's "false translation," and the reading of the Bible in churches, or by yeomen, women, and other incapable persons. The popish bishops, well aware how much turned on this general liberty of reading the Scriptures, did all in their power to discredit the new version. Gardiner made a list of about one hundred words which he thought unfit to be translated, and which, in case of an authorised version (whereof the clergy in convocation had reluctantly admitted the expediency), ought, in his opinion, to be left in Latin. Tindal's translation may, I apprehend, be reckoned the basis of that now in use, but has undergone several corrections before the last. It has been a matter of dispute whether it were made from the original languages or from the Vulgate. Hebrew and even Greek were very little known in England at that time.

The edition of 1537, called Matthews's Bible, printed by Grafton, contains marginal notes reflecting on the corruptions of popery. These it was thought expedient to suppress in that of 1539, commonly called Cranmer's Bible, as having been revised by him, and in later editions. In all these editions of Henry's reign, though the version is properly Tindal's, there are, as I am informed, considerable variations and amendments. Thus, in Cranmer's Bible, the word ecclesia is always rendered congregation, instead of church; either as the primary meaning, or, more probably, to point out that the laity had a share in the government of a Christian society.

[117] Burnet, 318; Strype's Life of Parker, 18; Collier (187) is of course much scandalised. In his view of things, it had been better to give up the Reformation entirely, than to suffer one reflection on the clergy. These dramatic satires on that order had also an effect in promoting the Reformation in Holland. Brandt's History of Reformation in Low Countries, vol. i. p. 128.

[118] I can hardly avoid doubting, whether Edward VI.'s journal, published in the second volume of Burnet, be altogether his own; because it is strange for a boy of ten years old to write with the precise brevity of a man of business. Yet it is hard to say how far an intercourse with able men on serious subjects may force a royal plant of such natural vigour; and his letters to his young friend Barnaby Fitzpatrick, published by H. Walpole in 1774, are quite unlike the style of a boy. One could wish this journal not to be genuine; for the manner in which he speaks of both his uncles' executions does not show a good heart. Unfortunately, however, there is a letter extant, of the king to Fitzpatrick, which must be genuine, and is in the same strain. He treated his sister Mary harshly about her religion, and had, I suspect, too much Tudor blood in his veins. It is certain that he was a very extraordinary boy, or, as Cardan calls him, monstrificus puellus; and the reluctance with which he yielded, on the solicitations of Cranmer, to sign the warrant for burning John Boucher, is as much to his honour, as it is against the archbishop's.

[119] The litany had been translated into English in 1542. Burnet, i. 331; Collier, III, where it may be read, not much differing from that now in use. It was always held out by our church, when the object was conciliation, that the liturgy was essentially the same with the mass-book. Strype's Annals, ii. 39; Hollingshed, iii, 921 (4to edition).

[120] It was observed, says Strype, ii. 79, that where images were left there was most contest, and most peace where they were all sheer pulled down, as they were in some places.

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

[122] Collier, p. 248, descants, in the true spirit of a high churchman, on the importance of confession. This also, as is well known, is one of the points on which his party disagreed with the generality of protestants.

[123] Nostra sententia est, says Luther, apud Burnet, 111, Appendix, 194, corpus ita cum pane, seu in pane esse, ut revera cum pane manducetur, et quemcunque motum vel actionem panis habet, eundem et corpus Christi.

[124] "Bucer thought, that for avoiding contention, and for maintaining peace and quietness in the church, somewhat more ambiguous words should be used, that might have a respect to both persuasions concerning the presence. But Martyr was of another judgment, and affected to speak of the sacrament with all plainness and perspicuity." Strype, ii. 121. The truth is, that there were but two opinions at bottom as to this main point of the controversy; nor in the nature of things was it possible that there should be more; for what can be predicated concerning a body, in its relation to a given space, but presence and absence.

[125] Burnet, ii. 105, App. 216; Strype, ii. 121, 208; Collier, etc. The Calvinists certainly did not own a local presence in the elements. It is the artifice of modern Romish writers, Dr. Milner, Mr. C. Butler, etc., to disguise the incompatibility of their tenets with those of the church of England on this, as they do on all other topics of controversy, by representing her as maintaining an actual, incomprehensible presence of Christ's body in the consecrated elements; which was never meant to be asserted in any authorised exposition of faith; though in the seventeenth century it was held by many distinguished churchmen. See the 27th, 28th, and 29th articles of religion. An eminent living writer, who would be as useful as he is agreeable, if he could bring himself to write with less heat and haste, says, that at Elizabeth's accession, among other changes, "the language of the article which affirmed a real presence was so framed as to allow latitude of belief for those who were persuaded of an exclusive one." Southey's Book of the Church, vol. ii. p. 247. The real presence was not affirmed, but denied, in the original draft; and as to what Mr. S. calls "an exclusive one" (that is, transubstantiation, if the words have any meaning), it is positively rejected in the amended article.

[126] It appears to have been common for the clergy, by licence from their bishops, to retain concubines, who were, Collier says, for the most part their wives. P. 262. But I do not clearly understand in what the distinction could have consisted; for it seems unlikely that marriages of priests were ever solemnised at so late a period; or if they were, they were invalid.

[127] Stat. 2 and 3 Edw. VI. c. 21; 5 and 6 Edw. VI. c. 12; Burnet, 89.

[128] 2 Strype, 53. Latimer pressed the necessity of expelling these temporising conformists.—"Out with them all! I require it in God's behalf: make them quondams, all the pack of them." Id. 204; 2 Burnet, 143.

[129] Burnet, iii. 190, 196. "The use of the old religion," says Paget, in remonstrating with Somerset on his rough treatment of some of the gentry, and partiality to the commons, "is forbidden by a law, and the use of the new is not yet printed in the stomachs of eleven out of twelve parts of the realm, whatever countenance men make outwardly to please them in whom they see the power resteth." Strype, ii. Appendix, H .H. This seems rather to refer to the upper classes, than to the whole people. But at any rate it was an exaggeration of the fact, the protestants being certainly in a much greater proportion. Paget was the adviser of the scheme of sending for German troops in 1549, which, however, was in order to quell a seditious spirit in the nation, not by any means wholly founded upon religious grounds. Strype, xi. 169.

[130] 2 Edward 6, c. 1; Strype, xi. 81.

[131] 37 H. 8, c. 2; 1 Edw. 6, c. 14; Strype, ii. 63; Burnet, etc. Cranmer, as well as the catholic bishops, protested against this act, well knowing how little regard would be paid to its intention. In the latter part of the young king's reign, as he became more capable of exerting his own power, he endowed, as is well known, several excellent foundations.

[132] Strype, Burnet, Collier, passim; Harmer's Specimens, 100. Sir Philip Hobby, our minister in Germany, writes to the Protector in 1548, that the foreign protestants thought our bishops too rich, and advises him to reduce them to a competent living; he particularly recommends his taking away all the prebends in England. Strype, 88. These counsels, and the acts which they prompted, disgust us, from the spirit of rapacity they breathe. Yet it might be urged with some force that the enormous wealth of the superior ecclesiastics had been the main cause of those corruptions which it was sought to cast away, and that most of the dignitaries were very averse to the new religion. Even Cranmer had written some years before to Cromwell, deprecating the establishment of any prebends out of the conventual estates, and speaking of the collegiate clergy as an idle, ignorant, and gormandising race, who might, without any harm, be extinguished along with the regulars. Burnet, iii. 141. But the gross selfishness of the great men in Edward's reign justly made him anxious to save what he could for a church that seemed on the brink of absolute ruin. Collier mentions a characteristic circumstance. So great a quantity of church plate had been stolen, that a commission was appointed to enquire into the facts, and compel its restitution. Instead of this, the commissioners found more left than they thought sufficient, and seized the greater part to the king's use.

[133] They declared, in the famous protestation of Spire, which gave them the name of Protestants, that their preachers having confuted the mass by passages of Scripture, they could not permit their subjects to go thither; since it would afford a bad example, to suffer two sorts of service, directly opposite to each other, in their churches. Schmidt, Hist. des Allemands, vi. 394, vii. 24.

[134] Stat. 2 and 3 Edw. 6, c. 1; Strype's Cranmer, p. 233.

[135] Burnet, 192. Somerset had always allowed her to exercise her religion, though censured for this by Warwick, who died himself a papist, but had pretended to fall in with the young king's prejudices. Her ill treatment was subsequent to the protector's overthrow. It is to be observed that, in her father's life, she had acknowledged his supremacy, and the justice of her mother's divorce. 1 Strype, 285; 2 Burnet, 241; Lingard, vi. 326. It was of course by intimidation; but that excuse might be made for others. Cranmer is said to have persuaded Henry not to put her to death, which we must in charity hope she did not know.

[136] When Joan Boucher was condemned, she said to her judges, "It was not long ago since you burned Anne Askew for a piece of bread, and yet came yourselves soon after to believe and profess the same doctrine for which you burned her; and now you will needs burn me for a piece of flesh, and in the end you will come to believe this also when you have read the Scriptures and understand them." Strype, ii. 214.

[137] Gardiner had some virtues, and entertained sounder notions of the civil constitution of England than his adversaries. In a letter to Sir John Godsalve, giving his reasons for refusing compliance with the injunctions issued by the council to the ecclesiastical visitors (which, Burnet says, does him more honour than anything else in his life), he dwells on the king's wanting power to command anything contrary to common law, or to a statute, and brings authorities for this. Burnet, ii. Append. 112. See also Lingard, vi. 387, for another instance. Nor was this regard to the constitution displayed only when out of the sunshine. For in the next reign he was against despotic counsels, of which an instance has been given in the last chapter. His conduct, indeed, with respect to the Spanish connection, is equivocal. He was much against the marriage at first, and took credit to himself for the securities exacted in the treaty with Philip, and established by statute. Burnet, ii. 267. But afterwards, if we may trust Noailles, he fell in with the Spanish party in the council, and even suggested to parliament that the queen should have the same power as her father to dispose of the succession by will. Ambassades de Noailles, iii. 153, etc., etc. Yet according to Dr. Lingard, on the imperial ambassador's authority, he saved Elizabeth's life against all the council. The article Gardiner, in the Biographia Britannica, contains an elaborate and partial apology, at great length; and the historian just quoted has of course said all he could in favour of one who laboured so strenuously for the extirpation of the northern heresy. But he was certainly not an honest man, and had been active in Henry's reign against his real opinions.

Even if the ill treatment of Gardiner and Bonner by Edward's council could be excused (and the latter by his rudeness might deserve some punishment), what can be said for the imprisonment of the bishops Heath and Day, worthy and moderate men, who had gone a great way with the reformation, but objected to the removal of altars, an innovation by no means necessary, and which should have been deferred till the people had grown ripe for further change? Mr. Southey says, "Gardiner and Bonner were deprived of their sees and imprisoned: but no rigour was used towards them." Book of the Church, ii. 111. Liberty and property being trifles.

[138] The doctrines of the English church were set forth in 42 articles, drawn up, as is generally believed, by Cranmer and Ridley, with the advice of Bucer and Martyr, and perhaps of Cox. The three last of these, condemning some novel opinions, were not renewed under Elizabeth, and a few other variations were made; but upon the whole there is little difference, and none perhaps in those tenets which have been most the object of discussion. See the original Articles in Burnet, ii. App. N. 55. They were never confirmed by a convocation or a parliament, but imposed by the king's supremacy on all the clergy, and on the universities. His death however, ensued before they could be actually subscribed.

[139] Strype's Cranmer, Appendix, p. 9. I am sorry to find a respectable writer inclining to vindicate Cranmer in this protestation, which Burnet admits to agree better with the maxims of the casuists than with the prelate's sincerity: Todd's Introduction to Cranmer's Defence of the True Doctrine of the Sacrament (1825), p. 40. It is of no importance to enquire, whether the protest were made publicly or privately. Nothing can possibly turn upon this. It was, on either supposition, unknown to the promisee, the pope at Rome. The question is, whether, having obtained the bulls from Rome on an express stipulation that he should take a certain oath, he had a right to offer a limitation, not explanatory, but utterly inconsistent with it? We are sure that Cranmer's views and intentions, which he very soon carried into effect, were irreconcilable with any sort of obedience to the pope; and if, under all the circumstances, his conduct was justifiable, there would be an end of all promissory obligations whatever.

[140] The character of Cranmer is summed up in no unfair manner by Mr. C. Butler, Memoirs of English Catholics, vol. i. p. 139; except that his obtaining from Anne Boleyn an acknowledgment of her supposed pre-contract of marriage, having proceeded from motives of humanity, ought not to incur much censure, though the sentence of nullity was a mere mockery of law.—Poor Cranmer was compelled to subscribe not less than six recantations. Strype (iii. 232) had the integrity to publish all these, which were not fully known before.

[141] Burnet, ii. 6.

[142] There are two curious entries in the Lords' Jour., 14th and 18th of November 1549, which point out the origin of the new code of ecclesiastical law mentioned in the next note: "Hodie questi sunt episcopi, contemni se a plebe, audere autem nihil pro potestate suâ administrare, eo quod per publicas quasdam denuntiationes quas proclamationes vocant, sublata esset penitus sua jurisdictio, adeo ut neminem judicio sistere, nullum scelus punire, neminem ad ædem sacram cogere, neque cætera id genus munia ad eos pertinentia exequi auderent. Hæc querela ab omnibus proceribus non sine mœrore audita est; et ut quam citissimè huic malo subveniretur, injunctum est episcopis ut formulam aliquam statuti hâc de re scriptam traderent: quæ si consilio postea prælecta omnibus ordinibus probaretur, pro lege omnibus sententiis sanciri posset.

"18 November. Hodie lecta est billa pro jurisdictione episcoporum et aliorum ecclesiasticorum, quæ cum proceribus, eo quod episcopi nimis sibi arrogare viderentur, non placeret, visum est deligere prudentes aliquot viros utriusque ordinis, qui habitâ maturâ tantæ rei inter se deliberatione, referrent toti consilio quid pro ratione temporis et rei necessitate in hac causa agi expediret." Accordingly, the Lords appoint the Archbishop of Canterbury, the Bishops of Ely, Durham, and Lichfield, Lords Dorset, Wharton, and Stafford, with Chief Justice Montague.

[143] It had been enacted, 3 Edw. 6, c. 11, that thirty-two commissioners, half clergy, half lay, should be appointed to draw up a collection of new canons. But these, according to Strype, ii. 303 (though I do not find it in the act), might be reduced to eight, without preserving the equality of orders; and of those nominated in November 1551, five were ecclesiastics, three laymen. The influence of the former shows itself in the collection, published with the title of Reformatio Legum Ecclesiasticûm, and intended as a complete code of protestant canon law. This was referred for revisal to a new commission; but the king's death ensued, and the business was never again taken up. Burnet, ii. 197; Collier, 326. The Latin style is highly praised; Cheke and Haddon, the most elegant scholars of that age, having been concerned in it. This however is of small importance. The canons are founded on a principle current among the clergy, that a rigorous discipline, enforced by church censures and the aid of the civil power, is the best safeguard of a christian commonwealth against vice. But it is easy to perceive that its severity would never have been endured in this country, and that this was the true reason why it was laid aside; not, according to the improbable refinement with which Warburton has furnished Hurd, because the old canon law was thought more favourable to the prerogative of the Crown. Compare Warburton's Letters to Hurd, p. 192, with the latter's Moral and Political Dialogues, p. 308, 4th edit.

The canons trench in several places on the known province of the common law, by assigning specific penalties and forfeitures to offences, as in the case of adultery; and though it is true that this was all subject to the confirmation of parliament, yet the lawyers would look with their usual jealousy on such provisions in ecclesiastical canons. But the great sin of this protestant legislation is its extension of the name and penalties of heresy to the wilful denial of any part of the authorised articles of faith. This is clear from the first and second titles. But it has been doubted whether capital punishments for this offence were intended to be preserved. Burnet, always favourable to the reformers, asserts that they were laid aside. Collier and Lingard, whose bias is the other way, maintain the contrary. There is, it appears to me, some difficulty in determining this. That all persons denying any one of the articles might be turned over to the secular power is evident. Yet it rather seems by one passage in the title, de judiciis contra hæreses, c. 10, that infamy and civil disability were the only punishments intended to be kept up, except in case of the denial of the christian religion. For if a heretic were, as a matter of course, to be burned, it seems needless to provide, as in this chapter, that he should be incapable of being a witness, or of making a will. Dr. Lingard, on the other hand, says, "It regulates the delivery of the obstinate heretic to the civil magistrate, that he may suffer death according to law." The words to which he refers are these: Cum sic penitus insederit error, et tam alte radices egerit, ut nec sententiâ quidem excommunicationis ad veritatem reus inflecti possit, tum consumptis omnibus aliis remediis, ad extremum ad civiles magistratus ablegetur puniendus. Id. tit. c. 4.

It is generally best, where the words are at all ambiguous, to give the reader the power of judging for himself. But I by no means pretend that Dr. Lingard is mistaken. On the contrary, the language of this passage leads to a strong suspicion that the rigour of popish persecution was intended to remain, especially as the writ de hæretico comburendo was in force by law, and there is no hint of taking it away. Yet it seems monstrous to conceive that the denial of predestination (which by the way is asserted in this collection, tit. de hæresibus, c. 22, with a shade more of Calvinism than in the articles) was to subject any one to be burned alive. And on the other hand, there is this difficulty, that Arianism, Pelagianism, popery, anabaptism, are all put on the same footing; so that, if we deny that the papist or free-willer was to be burned, we must deny the same of the anti-trinitarian, which contradicts the principle and practice of that age. Upon the whole, I cannot form a decided opinion as to this matter. Dr. Lingard does not hesitate to say, "Cranmer and his associates perished in the flames which they had prepared to kindle for the destruction of their opponents."

Upon further consideration, I incline to suspect that the temporal punishment of heresy was intended to be fixed by act of parliament; and probably with various degrees, which will account for the indefinite word "puniendus."

Before I quit these canons, one mistake of Dr. Lingard's may be corrected. He says that divorces were allowed by them not only for adultery, but cruelty, desertion, and incompatibility of temper. But the contrary may be clearly shown, from tit. de matrimonio, c. 11, and tit. de divortiis, c. 12. Divorce was allowed for something more than incompatibility of temper; namely, capitales inimicitiæ, meaning, as I conceive, attempts by one party on the other's life. In this respect, their scheme of a very important branch of social law seems far better than our own. Nothing can be more absurd than our modern privilegia, our acts of parliament to break the bond between an adulteress and her husband. Nor do I see how we can justify the denial of redress to women in every case of adultery and desertion. It does not follow that the marriage tie ought to be dissolved as easily as it is, at least by the rich, in the Lutheran states of Germany.

[144] Strype, passim. Burnet, ii. 154; iii. Append. 200; Collier, 294, 303.

[145] Strype, Burnet. The former is more accurate.

[146] Burnet, 237, 246; 3 Strype, 10, 341. No part of England suffered so much in the persecution.

[147] Ambassades de Noailles, v. ii. passim. 3 Strype, 100.

[148] Strype, iii. 107. He reckons the emigrants at 800. Life of Cranmer, 314. Of these the most illustrious was the Duchess of Suffolk, first cousin of the queen. In the parliament of 1555, a bill sequestering the property of "the Duchess of Suffolk and others, contemptuously gone over the seas," was rejected by the Commons on the third reading. Journals, 6th December.

It must not be understood that all the aristocracy were supple hypocrites, though they did not expose themselves voluntarily to prosecution. Noailles tells us that the Earls of Oxford and Westmoreland, and Lord Willoughby, were censured by the council for religion; and it was thought that the former would lose his title (more probably his hereditary office of chamberlain), which would be conferred on the Earl of Pembroke, v. 319. Michele, the Venetian ambassador, in his Relazione del Stato d'Inghilterra, Lansdowne MSS. 840, does not speak favourably of the general affection towards popery. "The English in general," he says, "would turn Jews or Turks if their sovereign pleased; but the restoration of the abbey lands by the crown keeps alive a constant fear among those who possess them."—Fol. 176. This restitution of church lands in the hands of the Crown cost the queen £60,000 a year of revenue.

[149] Parker had extravagantly reckoned the number of these at 12,000, which Burnet reduces to 3000, vol. iii. 226. But upon this computation they formed a very considerable body on the protestant side. Burnet's calculation, however, is made by assuming the ejected ministers of the diocese of Norwich to have been in the ratio of the whole; which, from the eminent protestantism of that district, is not probable; and Dr. Lingard, on Wharton's authority, who has taken his ratio from the diocese of Canterbury, thinks they did not amount to more than about 1500.

[150] Burnet, ii. 298; iii. 245. But see Philips's Life of Pole, sect. ix. contra; and Ridley's answer to this, p. 272. In fact, no scheme of religion would on the whole have been so acceptable to the nation, as that which Henry left established, consisting chiefly of what was called catholic in doctrine, but free from the grosser abuses and from all connection with the see of Rome. Arbitrary and capricious as that king was, he carried the people along with him, as I believe, in all great points, both as to what he renounced, and what he retained. Michele (Relazione, etc.) is of this opinion.

[151] No one of our historians has been so severe on Mary's reign, except on a religious account, as Carte, on the authority of the letters of Noailles. Dr. Lingard, though with these before him, has softened and suppressed, till this queen appears honest and even amiable. A man of sense should be ashamed of such partiality to his sect. Admitting that the French ambassador had a temptation to exaggerate the faults of a government wholly devoted to Spain, it is manifest that Mary's reign was inglorious, her capacity narrow, and her temper sanguinary; that, although conscientious in some respects, she was as capable of dissimulation as her sister, and of breach of faith as her husband; that she obstinately and wilfully sacrificed her subjects' affections and interests to a misplaced and discreditable attachment; and that the words with which Carte has concluded the character of this unlamented sovereign, though little pleasing to men of Dr. Lingard's profession, are perfectly just: "Having reduced the nation to the brink of ruin, she left it, by her seasonable decease, to be restored by her admirable successor to its ancient prosperity and glory." I fully admit, at the same time, that Dr. Lingard has proved Elizabeth to have been as dangerous a prisoner, as she afterwards found the Queen of Scots.

[152] Strype, ii. 17; Burnet, iii. 263, and Append. 285, where there is a letter from the king and queen to Bonner, as if even he wanted excitement to prosecute heretics. The number who suffered death by fire in this reign is reckoned by Fox at 284, by Speed at 277, and by Lord Burghley at 290. Strype, iii. 473. These numbers come so near to each other, that they may be presumed also to approach the truth. But Carte, on the authority of one of Noailles's letters, thinks many more were put to death than our martyrologists have discovered. And the prefacer to Ridley's Treatise de Cœnâ Domini, supposed to be Bishop Grindal, says that 800 suffered in this manner for religion. Burnet, ii. 364. I incline, however, to the lower statements.

[153] Burnet makes a very just observation on the cruelties of this period, that "they raised that horror in the whole nation, that there seems ever since that time such an abhorrence to that religion to be derived down from father to son, that it is no wonder an aversion so deeply rooted and raised upon such grounds, does upon every new provocation or jealousy or returning to it break out in most violent and convulsive symptoms."—P. 338. "Delicta majorum immeritus luis, Romane." But those who would diminish this aversion, and prevent these convulsive symptoms, will do better by avoiding for the future either such panegyrics on Mary and her advisers, or such insidious extenuations of her persecution as we have lately read, and which do not raise a favourable impression of their sincerity in the principles of toleration to which they profess to have been converted.

Noailles, who, though an enemy to Mary's government, must, as a catholic, be reckoned an unsuspicious witness, remarkably confirms the account given by Fox, and since by all our writers, of the death of Rogers, the proto-martyr, and its effect on the people. "Ce jour d'huy a esté faite la confirmation de 'alliance entre le pape et ce royaume par un sacrifice publique et solemnel d'un docteur predicant nommé Rogerus, le quel a eté brulé tout vif pour estre Lutherien; mais il est mort persistant en son opinion. A quoy le plus grand partie de ce peuple a pris tel plaisir, qu'ils n'ont eu crainte de luy faire plusieurs acclamations pour comforter son courage; et meme ses enfans y on assisté, le consolant de telle façon qu'il semblait qu'on le menait aux noces."—V. 173.

[154] Strype, iii. 285.

[155] Elizabeth was much suspected of a concern in the conspiracy of 1554, which was more extensive than appeared from Wyatt's insurrection, and had in view the placing her on the throne, with the Earl of Devonshire for her husband. Wyatt indeed at his execution acquitted her; but as he said as much for Devonshire, who is proved by the letters of Noailles to have been engaged, his testimony is of less value. Nothing, however, appears in these letters, I believe, to criminate Elizabeth. Her life was saved, against the advice of the imperial court, and of their party in the cabinet, especially Lord Paget, by Gardiner, according to Dr. Lingard, writing on the authority of Renard's despatches. Burnet, who had no access to that source of information, imagines Gardiner to have been her most inveterate enemy. She was even released from prison for the time, though soon afterwards detained again, and kept in custody, as is well known, for the rest of this reign. Her inimitable dissimulation was all required to save her from the penalties of heresy and treason. It appears by the memoir of the Venetian ambassador, in 1557 (Lansdowne MSS. 840), as well as from the letters of Noailles, that Mary was desirous to change the succession, and would have done so, had it not been for Philip's reluctance, and the impracticability of obtaining the consent of parliament. Though of a dissembling character, she could not conceal the hatred she bore to one who brought back the memory of her mother's and her own wrongs; especially when she saw all eyes turned towards the successor, and felt that the curse of her own barrenness was to fall on her beloved religion. Elizabeth had been not only forced to have a chapel in her house, and to give all exterior signs of conformity, but to protest on oath her attachment to the catholic faith; though Hume, who always loves a popular story, gives credence to the well known verses ascribed to her, in order to elude a declaration of her opinion on the sacrament. The inquisitors of that age were not so easily turned round by an equivocal answer. Yet Elizabeth's faith was constantly suspected. "Accresce oltro questo l'odio," says the Venetian, "il sapere che sia aliena dalla religione presente, per essere non pur nata, ma dotta ed allevata nell' altra, che se bene con la esteriore ha mostrato, e mostra di essersi ridotta, vivendo cattolicamente, pure è opinione che dissimuli e nell' interiore la ritenga più che mai.

[156] Elizabeth ascended the throne November 17, 1558. On the 5th of December Mary was buried; and on this occasion White, bishop of Winchester, in preaching her funeral sermon, spoke with virulence against the protestant exiles, and expressed apprehension of their return. Burnet, iii. 272. Directions to read part of the service in English, and forbidding the elevation of the host, were issued prior to the proclamation of December 27, against innovations without authority. The great seal was taken from Archbishop Heath early in January, and given to Sir Nicholas Bacon. Parker was pitched upon to succeed Pole at Canterbury in the preceding month. From the dates of these and other facts, it may be fairly inferred that Elizabeth's resolution was formed independently of the pope's behaviour towards Sir Edward Karn; though that might probably exasperate her against the adherents of the Roman see, and make their religion appear more inconsistent with their civil allegiance. If, indeed, the refusal of the bishops to officiate at her coronation (January 14, 1558-9) were founded in any degree on Paul IV.'s denial of her title, it must have seemed in that age within a hair's-breadth of high treason. But it more probably arose from her order that the host should not be elevated, which in truth was not legally to be justified. Mass was said, however, at her coronation; so that she seems to have dispensed with this prohibition.

[157] See a paper by Cecil on the best means of reforming religion, written at this time with all his cautious wisdom, in Burnet, or in Strype's Annals of the Reformation, or in the Somers Tracts.

[158] Parl. Hist. vol. i. p. 394. In the reign of Edward, a prayer had been inserted in the liturgy to deliver us "from the Bishop of Rome and all his detestable enormities." This was now struck out; and, what was more acceptable to the nation, the words used in distributing the elements were so contrived by blending the two forms successively adopted under Edward, as neither to offend the popish or Lutheran, nor the Zuinglian communicant. A rubric directed against the doctrine of the real or corporal presence was omitted. This was replaced after the restoration. Burnet owns that the greater part of the nation still adhered to this tenet though it was not the opinion of the rulers of the church. ii. 390, 406.

[159] Burnet; Strype's Annals, 169. Pensions were reserved for those who quitted their benefices on account of religion. Burnet, ii. 398. This was a very liberal measure, and at the same time a politic check on their conduct. Lingard thinks the number must have been much greater; but the visitors' reports seem the best authority. It is however highly probable that others resigned their preferments afterwards, when the casuistry of their church grew more scrupulous. It may be added, that the visitors restored the married clergy who had been dispossessed in the preceding reign; which would of course considerably augment the number of sufferers for popery.

[160] 1 Eliz. c. i. The oath of supremacy was expressed as follows: "I, A. B., do utterly testify and declare, that the queen's highness is the only supreme governor of this realm, and all other her highness's dominions and countries, as well in all spiritual and ecclesiastical things or causes, as temporal; and that no foreign prince, person, prelate, state, or potentate, hath or ought to have any jurisdiction, power, superiority, pre-eminence, or authority, ecclesiastical or spiritual, within this realm; and therefore I do utterly renounce and forsake all foreign jurisdictions, powers, superiorities, and authorities, and do promise that from henceforth I shall bear faith and true allegiance to the queen's highness, her heirs and lawful successors, and to my power shall assist and defend all jurisdictions, pre-eminences, privileges, and authorities, granted or belonging to the queen's highness, her heirs and successors, or united and annexed to the imperial crown of this realm."

A remarkable passage in the injunctions to the ecclesiastical visitors of 1559, which may be reckoned in the nature of a contemporaneous exposition of the law, restrains the royal supremacy established by this act, and asserted in the above oath, in the following words: "Her majesty forbiddeth all manner her subjects to give ear or credit to such perverse and malicious persons, which most sinisterly and maliciously labour to notify to her loving subjects, how by words of the said oath it may be collected, that the kings or queens of this realm, possessors of the crown, may challenge authority and power of ministry of divine service in the church; wherein her said subjects be much abused by such evil-disposed persons. For certainly her majesty neither doth, nor ever will, challenge any other authority than that was challenged and lately used by the said noble kings of famous memory, King Henry VIII. and King Edward VI., which is, and was of ancient time, due to the imperial crown of this realm; that is, under God to have the sovereignty and rule over all manner of persons born within these her realms, dominions, and countries, of what estate, either ecclesiastical or temporal, soever they be, so as no other foreign power shall or ought to have any superiority over them. And if any person that hath conceived any other sense of the form of the said oath shall accept the same with this interpretation, sense, or meaning, her majesty is well pleased to accept every such in that behalf, as her good and obedient subjects, and shall acquit them of all manner of penalties contained in the said act, against such as shall peremptorily or obstinately take the same oath." 1 Somers Tracts, edit. Scott, 73.

This interpretation was afterwards given in one of the thirty-nine articles, which having been confirmed by parliament, it is undoubtedly to be reckoned the true sense of the oath. Mr. Butler, in his Memoirs of English Catholics, vol. i. p. 157, enters into a discussion of the question, whether Roman catholics might conscientiously take the oath of supremacy in this sense. It appears that in the seventeenth century some contended for the affirmative; and this seems to explain the fact, that several persons of that persuasion, besides peers from whom the oath was not exacted, did actually hold offices under the Stuarts, and even enter into parliament, and that the test act and declaration against transubstantiation were thus rendered necessary to make their exclusion certain. Mr. B. decides against taking the oath, but on grounds by no means sufficient; and oddly overlooks the decisive objection, that it denies in toto the jurisdiction and ecclesiastical authority of the pope. No writer, as far as my slender knowledge extends, of the Gallican or German school of discipline, has gone to this length; certainly not Mr. Butler himself, who in a modern publication (Book of the Roman Catholic Church, p. 120), seems to consider even the appellant jurisdiction in ecclesiastical causes as vested in the holy see by divine right.

As to the exposition before given of the oath of supremacy, I conceive that it was intended not only to relieve the scruples of catholics, but of those who had imbibed from the school of Calvin an apprehension of what is sometimes, though rather improperly, called Erastianism—the merging of all spiritual powers, even those of ordination and of preaching, in the paramount authority of the state, towards which the despotism of Henry, and obsequiousness of Cranmer, had seemed to bring the church of England.

[161] 1 Eliz. c. 2.

[162] Strype's Annals, i. 233, 241.

[163] Haynes, 395. The penalty for causing mass to be said, by the Act of Uniformity, was only 100 marks for the first offence. These imprisonments were probably in many cases illegal, and only sustained by the arbitrary power of the high commission court.

[164] Strype, 220.

[165] Questions of conscience were circulated, with answers, all tending to show the unlawfulness of conformity. Strype, 228. There was nothing more in this than the catholic clergy were bound in consistency with their principles to do, though it seemed very atrocious to bigots. Mr. Butler says, that some theologians at Trent were consulted as to the lawfulness of occasional conformity to the Anglican rites, who pronounced against it. Mem. of Catholics, i. 171.

[166] The trick of conjuration about the queen's death began very early in her reign (Strype, i. 7), and led to a penal statute against "fond and fantastical prophecies." 5 Eliz. c. 15.

[167] I know not how to charge the catholics with the conspiracy of the two Poles, nephews of the cardinal, and some others, to obtain five thousand troops from the Duke of Guise, and proclaim Mary 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 discontent in that party upon which the conspirators 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 intentions 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 1563; 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.

[168] 5 Eliz. c. 1.

[169] Strype, Collier, Parliamentary History. The original source is the manuscript collections of Fox the martyrologist, a very unsuspicious authority; so 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 arguments: "They say it touches conscience, and it is a thing wherein a man ought to have a scruple; but if any hath a conscience in it, these four years' space might have settled it. Also, after his first refusal, he hath three months' respite for conference and settling of his conscience." Strype, 270.

[170] Strype's Life of Parker, 125.

[171] Strype's Annals, 149. Tunstall was treated in a very handsome manner 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 gaol for refusing the oath of supremacy. Strype, i. 457, ii. 526; Fuller's Church History, 178.

[172] 8 Eliz. c. 1. Eleven peers dissented, all noted catholics, except the Earl of Sussex. Strype, i. 492.

[173] Even Dr. Lingard admits that Parker was consecrated at Lambeth, on December 19, 1559; but conjectures that there may have been some previous meeting at the Nag's Head, which gave rise to the story. This means that any absurdity may be presumed, rather than acknowledge good catholics to have propagated a lie.

[174] Nobis vero factura est rem adeo gratam, ut omnem simus daturi operam, quo possimus eam rem serenitati vestræ mutuis benevolentiæ et fraterni animi studiis cumulatissimè compensare. See the letter in the additions to the first volume of Strype's Annals, prefixed to the second, p. 67. It has been erroneously referred by Camden, whom many have followed, to the year 1559, but bears date 24th September 1563.

[175] For the dispositions of Ferdinand and Maximilian towards religious toleration in Austria, which indeed for a time existed, see F. Paul, Concile de Trente (par Courayer), ii. 72, 197, 220, etc.; Schmidt, Hist. des Allemands, viii. 120, 179, etc.; Flechier, Vie de Commendom, 388; or Coxe's House of Austria.

[176] Strype, 513, et alibi.

[177] Strype, 522. He says the lawyers in most eminent places were generally favourers of popery. P. 269. But, if he means the judges, they did not long continue so.

[178] Cum regina Maria moreretur, et religio in Angliâ mutaret, post episcopos et prælatos catholicos captos et fugatos, populus velut ovium grex sine pastore in magnis tenebris et caligine animarum suarum oberravit. Unde etiam factum est multi ut catholicorum superstitionibus impiis dissimulationibus et gravibus juramentis contra sanctæ sedis apostolicæ auctoritatem, cum admodum parvo aut plane nullo conscientiarum suarum scrupulo assuescerent. Frequentabant ergo hæreticorum synagogas, intererant eorum concionibus, atque ad easdem etiam audiendas filios et familiam suam compellabant. Videbatur illis ut catholici essent, sufficere una cum hæreticis eorum templa non adire, ferri autem posse si ante vel post illos eadem intrassent. Communicabatur de sacrilegâ Calvini cœnâ, vel secreto et clanculum intra privatos parietes. Missam qui audiverant, ac postea Calvinianos se haberi volebant, sic se de præcepto satisfecisse existimabant. Deferebantur filii catholicorum ad baptisteria hæreticorum, ac inter illorum manus matrimonia contrahebant. Atque hæc omnia sine omni scrupulo fiebant, facta propter catholicorum sacerdotum ignorantiam, qui talia vel licere credebant, vel timore quodam præpediti dissimulabant. Nunc autem per Dei misericordiam omnes catholici intelligunt, ut salventur non satis esse corde fidem catholicam credere, sed eandem etiam ore oportere confiteri. Ribadeneira de Schismate, p. 53. See also Butler's English Catholics, vol. iii. p. 156.

[179] Dodd's Church His. vol. ii. p. 8.

[180] Thomas Heath, brother to the late Archbishop of York, was seized at Rochester about 1570, well provided with anabaptist and Arian tracts for circulation. Strype, i. 521. For other instances, see p. 281, 484; Life of Parker, 244; Nalson's Collections, vol. i.; Introduction, p. 39, etc., from a pamphlet written also by Nalson, entitled, Foxes and Firebrands. It was surmised that one Henry Nicolas, chief 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 by the popish party. Strype, ii. 37, 589, 595. But these conjectures 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 Countries, vol. i. p. 105) does not suspect Nicolas of being other than a fanatic. His sect appeared in the Netherlands about 1555.

[181] "That church [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 the 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. Nor to mention Sir Thomas More's Utopia, the principle of toleration had been avowed by the Chancellor l'Hospital, and many others in France. I mention him as on the stronger side; for in fact the weaker had always professed the general 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. Sleidan intimates (vol. iii. p. 263) that Calvin incurred odium by the death of Servetus. And Melancthon says expressly the same thing, in the letter which he unfortunately wrote to the reformer of Geneva, declaring his own approbation of the crime; and which I am willing to ascribe rather to his constitutional fear of giving offence than to sincere conviction.

[182] The address of the House of Commons, begging the queen to marry, was on February 6, 1559.

[183] Haynes, 233.

[184] See particularly two letters in the Hardwicke State Papers, i. 122 and 163, dated in October and November 1560, which show the alarm excited by the queen's ill-placed partiality.

[185] Cecil's earnestness for the Austrian marriage appears plainly (Haynes, 430), and still more in a remarkable minute, where he has drawn up, in parallel columns, according to a rather formal, but perspicuous, method he much used, his reasons in favour of the archduke, and against the Earl of Leicester. The former chiefly relate to foreign politics, and may be conjectured by those acquainted with history. 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 infamed 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 plainness and freedom which this great statesman ventured to use towards her. The allusion to the death of Leicester's wife, which had occurred in a very suspicious manner, at Cumnor, near Oxford, and is well known as the foundation of the novel of Kenilworth, though related there with great anachronism and confusion of persons, may be frequently met with in contemporary documents. By the above quoted letters in the Hardwicke Papers, it appears that those who disliked Leicester had spoken freely of this report to the queen.

[186] Elizabeth carried her dissimulation so far as to propose marriage articles, which were formally laid before the imperial ambassador. These, though copied from what had been agreed on Mary's marriage with Philip, now seemed highly ridiculous, when exacted from a younger brother without territories or revenues. Jura et leges regni conserventur, neque quicquam mutetur in religione aut in statu publico. Officia et magistratus exerceantur per naturales. Neque regina, neque liberi sui educantur ex regno sine consensu regni, etc. Haynes, 438.

Cecil was not too wise a man to give some credit to astrology. The stars were consulted about the queen's marriage; and those veracious oracles gave response, that she should be married in the thirty-first year of her age to a foreigner, and have one son, who would be a great prince, and a daughter, etc., etc. Strype, ii. 16, 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.

[187] The council appear in general to have been as resolute against tolerating the exercise of the catholic religion in any husband the queen might choose, as herself. We find, however, that several divines were consulted on two questions: 1. Whether it were lawful to marry a papist. 2. Whether the queen might permit mass to be said. To which answers were given, not agreeing with each other. Strype, ii. 150, and Appendix 31, 33. When the Earl of Worcester was sent over to Paris in 1571, as proxy for the queen, who had 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.

[188] "The people," Camden says, "cursed Huic, the queen's physician, as having dissuaded the queen from marrying on account of some impediment and defect in her." Many will recollect the allusion to this in Mary's scandalous letter to Elizabeth, wherein, under pretence of repeating what the Countess of Shrewsbury had said, she utters everything that female spite and mistrust could dictate. But in the long and confidential correspondence of Cecil, Walsingham, and Sir Thomas Smith, about the queen's marriage with the Duke of Anjou, in 1571, for which they were evidently most anxious, I do not perceive the slightest intimation that the prospect of her bearing children was at all less favourable than in any other case. The council seem, indeed, in the subsequent treaty with the other Duke of Anjou, in 1579, when she was forty-six, to have reckoned on something rather 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 favourable side. "By marriage with Monsieur she is likely to have children, because of his youth;" as if her age were no objection.

[189] Camden, after telling us that the queen's disinclination to marry raised great clamours, and that 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 traitors appeared very solicitous in the business of a successor."—P. 401 (in Kennet's Complete Hist. of England, vol. ii.). This, however, from Camden's known proneness 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 summary of events in Elizabeth's reign. I extract as a specimen such passages as bear on the present subject.

October 6, 1566. 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 secretary, with the occasion thereof.

27. Certain lords, viz., the Earls of Pembroke and Leicester, were excluded the presence-chamber for furthering the proposition of the succession to be declared by parliament without the queen's allowance.

November 12. Messrs. Bell and Monson moved trouble in the parliament about the succession.

14. The queen had before her thirty lords and thirty commoners, to receive her answer concerning their petition for the succession and for marriage. Dalton 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 majesty did remit a part of the offer of a subsidy to the Commons, who offered largely, to the end to have had the succession established. P. 762.

[190] Catherine, after her release from the Tower, was placed in the custody of her uncle, Lord John Grey, but still suffering the queen's displeasure, and separated from her husband. Several interesting letters from her and her uncle to Cecil are among the Lansdowne MSS. vol. vi. They cannot be read without indignation at Elizabeth's unfeeling severity. Sorrow killed this poor young woman the next year, who was never permitted to see her husband again. Strype, i. 391. The Earl of Hertford underwent a long imprisonment, and continued in obscurity during Elizabeth's reign; but had some public employments under her successor. He was twice afterwards married, and lived to a very advanced age, not dying till 1621, near sixty years after his ill-starred and ambitious love. It is worth while to read the epitaph on his monument in the S.E. 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 revocavit amores! I shall revert to the question of this marriage in a subsequent chapter.

[191] Haynes, 396.

[192] Id. 413; Strype, 410. Hales's treatise in favour of the authenticity of Henry's will is among the Harleian MSS. n. 537 and 555, and has also been printed in the Appendix to Hereditary Right Asserted, fol. 1713.

[193] Camden, p. 416, ascribes the powerful coalition 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 design of bringing about Norfolk's marriage with Mary, as well as to their jealousy of his influence. Carte reports, on the authority of the despatches of Fenelon, the French ambassador, that they intended to bring him to account for breaking off the ancient league with the house of Burgundy, or, in other words, for maintaining the protestant interest. Vol. iii. p. 483.

A papist writer, under the name of Andreas Philopater, gives an account of this confederacy against Cecil at some length. Norfolk and Leicester belonged to it; and the object was to defeat the Suffolk succession, which Cecil and Bacon favoured. Leicester betrayed his associates to the queen. It had been intended that Norfolk should accuse the two counsellors before the Lords, eâ ratione ut è senatu regiâque abreptos ad curiæ januas in crucem agi præciperet, eoque perfecto rectè deinceps ad forum progressus explicaret populo tum hujus facti rationem, tum successionis etiam regnandi legitimam seriem, si quid forte reginæ humanitus accideret. P. 43.

[194] D'Ewes, 81.

[195] Strype, 11, Append. This speech seems to have been made while Catherine Grey was living; perhaps therefore it was in a former parliament, for no account that I have seen represents her as having been alive so late as 1571.

[196] There was something peculiar in Mary's mode of blazonry. She bore Scotland and England quarterly, the former being first; but over all was a half scutcheon of pretence with the arms of England, 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 despatches of Throckmorton, the English ambassador in France, bear continual testimony to the insulting and hostile manner in which Francis II. and his queen displayed their pretensions to our crown. Forbes's State Papers, vol. i. passim. The following is an instance. At the entrance of the king and queen into Chatelherault, 23rd November 1559, these lines formed the inscription over one of the gates:

"Gallia perpetuis pugnaxque Britannia bellis

Olim odio inter se dimicuere pari.

Nunc Gallos totoque remotos orbe Britannos

Unum dos Mariæ cogit in imperium.

Ergo pace potes, Francisce, quod omnibus armis

Mille patres annis non potuere tui."

This offensive behaviour of the French court is the apology of Elizabeth's intrigues during the same period with the malcontents, which to a certain extent cannot 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 very likely to exceed his instructions; and there is much reason to believe that he did so. It is remarkable that no modern French writer that I have seen, Anquetil, Garnier, Lacretelle, or the editors of the General Collection of Memoirs, seem to have been aware of Elizabeth's secret intrigues with the king of Navarre and other protestant chiefs in 1559, which these letters, published by Forbes in 1740, demonstrate.

[197] Burnet, i. Append. 266. Many letters, both of Mary herself and of her secretary, 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 alleged by the English court, that a collateral successor had never been declared in any prince's life-time, that whatever 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 offended party could not but seek the redress thereof."—P. 373.

[198] A very remarkable letter of the Earl of Sussex, October 22, 1568, contains these words: "I think surely no end can be made good for England, except 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 justice, but a great deal to his ability. Yet he afterwards became an advocate for the Duke of Norfolk's marriage with Mary. Lodge's Illustrations, vol. ii. p. 4.

[199] 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.

[200] Haynes, 580.

[201] In a conversation which Mary 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, such as the Duke of Norfolk, the Earls of Derby, Northumberland, Westmoreland, Cumberland, Shrewsbury. "She had the better hope of this, for that she thought them to be all of the old religion, which she meant to restore again with all expedition, and thereby win the hearts of the common people." The whole passage is worth notice. Haynes, 447. See also Melvil's Memoirs, for the dispositions of an English party towards Mary in 1566.

[202] Murden's State Papers, 134, 180. Norfolk was a very weak man, the dupe of some very 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 intrepidity. But such was the tone of those times; an exaggerated hypocrisy prevailed in everything.

[203] State Trials, i. 957. He was interrogated by the queen's counsel with the most insidious questions. 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 Haynes and Murden, contain a mass of documents relative to this conspiracy, which leave no doubt as to the most heinous charge, that of inviting 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.

[204] The northern counties were at this time chiefly catholic. "There are not," says Sadler, writing from thence, "ten gentlemen in this country who do favour and allow of their majesty's proceedings 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 sufficient ministers to stand up in its defence. Strype, i. 509, et post; ii. 183. Many of the gentry indeed were still disaffected in other parts towards 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.

[205] Camden has quoted a long passage from Hieronymo Catena's Life of Pius V., published at Rome in 1588, which illustrates the evidence to the same effect contained in the Burghley Papers, and partly adduced on the Duke of Norfolk's trial.

[206] Strype, i. 546, 553, 556.

[207] Id. 578; Camden, 428; Lodge, ii. 45.

[208] Strype, ii. 88; Life of Smith, 152.

[209] Strype, i. 502. I do not give any credit whatever to this league, as printed in Strype, which seems to have been fabricated by some of the queen's emissaries. There had been, not perhaps a treaty, but a verbal agreement 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 seems very unlikely that Maximilian was concerned in such a league.

[210] Strype, vol. ii.

[211] The college of Douay for English refugee priests was established in 1568 or 1569. Lingard, 374. Strype seems, but I believe through inadvertence, to put this event several years later. Annals, ii. 630. It was dissolved by Requesens, while governor of Flanders, but revived at Rheims in 1575, under the protection of the cardinal of Lorrain, and returned to Douay in 1593. Similar colleges were founded at Rome in 1579, at Valladolid in 1589, at St. Omer in 1596, and at Louvain in 1606.

[212] 13 Eliz. c. 1. This act was made at first retrospective, so as to affect every one who had at any time denied the queen's title. A member objected to this in debate as "a precedent most perilous." But Sir Francis Knollys, Mr. Norton, and others defended it. D'Ewes, 162. It seems to have been amended by the Lords. So little notion had men of observing the first principles of equity towards their enemies! There is much reason from the debate to suspect that the ex post facto words were levelled at Mary.

[213] Strype, ii. 133; D'Ewes, 207.

[214] Strype, ii. 135.

[215] Life of Parker, 354.

[216] Strype's Annals, ii. 48.

[217] Murden's Papers, p. 43, contain proofs of the increased discontent among the catholics in consequence of the penal laws.

[218] Strype, ii. 330. See too in vol. iii. Appendix 68, a series of petitions intended to be offered to the queen and parliament, about 1583. 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. Nor 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 armed enemies were landed in any part of the realm, on purpose to suppress the whole religion." M'Crie's Life of Knox, vol. ii. p. 24. In a conversation with Maitland he asserted most explicitly the duty of putting idolaters to death. Id. p. 120. Nothing can be more sanguinary than the reformer's spirit in this remarkable interview. St. Dominic could not have surpassed him. It is strange to see men, professing all the while our modern creed of charity and toleration, extol these sanguinary spirits of the sixteenth century. The English puritans, though I cannot cite any passages so strong as the foregoing, were much the bitterest enemies of the catholics. 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 favour of silenced ministers.

[219] D'Ewes, 161, 177.

[220] Strype's Life of Parker, 354.

[221] Strype's Annals, i. 582. Honest old Strype, who thinks church and state never in the wrong, calls this "a notable piece of favour."

[222] Id. ii. 110, 408.

[223] Strype's Annals, iii. 127.

[224] Life of Whitgift, 83. See too p. 99, and Annals of Reformation, ii. 631, etc.; also Holingshed, ann. 1574, ad init.

[225] An almost incredible specimen of ungracious behaviour towards a Roman catholic gentleman is mentioned in a letter of Topcliffe, a man whose daily occupation was to hunt out and molest men for popery. "The next good news, but in account the highest, her majesty hath served God with great zeal and comfortable examples; for by her council two notorious papists, young Rockwood, the master of Euston Hall, where her majesty did lie upon Sunday now a fortnight, and one Downes, a gentleman, were both committed, the one to the town prison at Norwich, the other to the country prison there, for obstinate papistry; and seven more gentlemen of worship were committed to several houses in Norwich as prisoners; two of the Lovels, another Downes, one Beningfield, one Parry, and two others not worth memory for badness of belief.

"This Rockwood is a papist of kind [family] newly crept out of his late wardship. Her majesty, by some means I know not, was lodged at his house, Euston, far unmeet for her highness; nevertheless, the gentleman brought into her presence by like device, her majesty gave him ordinary thanks for his bad house, and her fair hand to kiss: but my lord chamberlain nobly and gravely understanding that Rockwood was excommunicated for papistry, called him before him, demanded of him how he durst presume to attempt her royal presence, he, unfit to accompany any Christian person; forthwith said he was fitter for a pair of stocks, commanded him out of the court, and yet to attend her council's pleasure at Norwich he was committed. And to dissyffer [sic] the gentleman to the full, a piece of plate being missed in the court, and searched for in his hay-house, in the hay-rick, such an image of our lady was there found, as for greatness, for gayness, and workmanship, I did never see a match; and after a sort of country dances ended, in her majesty's sight the idol was set behind the people who avoided; she rather seemed a beast raised upon a sudden from hell by conjuring, than the picture for whom it had been so often and so long abused. Her majesty commanded it to the fire, which in her sight by the country folks was quickly done to her content, and unspeakable joy of everyone but some one or two who had sucked of the idol's poisoned milk.

"Shortly after, a great sort of good preachers, who had been long commanded to silence for a little niceness, were licensed, and again commanded to preach; 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, almost before by policy discredited and disgraced, were greatly countenanced.

"I was so happy lately, amongst other good graces, that her majesty did tell me of sundry lewd papist beasts that have resorted to Buxton," etc. Lodge, ii. 188, 30 August 1578.

This Topcliffe was the most implacable persecutor of his age. In a letter to Lord Burleigh (Strype, 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 specimen of the prevalent spirit, especially among the puritans, whom Topcliffe favoured. Instances of the ill-treatment experienced by respectable families (the Fitzherberts and Foljambes), and even aged ladies, without any other provocation than their recusancy, may be found in Lodge, ii. 372, 462; iii. 22. But those farthest removed from puritanism partook sometimes of the same tyrannous spirit. Aylmer, bishop of London, renowned for his persecution of nonconformists, is said by Rishton de Schismate, p. 319, to have sent a young catholic lady to be whipped in Bridewell for refusing to conform. If the authority 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.

[226] Strype's Life of Smith, 171; Annals, ii. 631, 636; iii. 479; and Append. 170. The last reference 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.

[227] Allen's Admonition to the Nobility and People of England, written in 1588, to promote the success 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 indeed the whole tenor of historical documents for this reign confirms, that Allen and Persons were actively engaged in endeavouring to dethrone Elizabeth, by means of a Spanish force. But it must, I think, be candidly confessed by protestants, that they had very little influence over the superior catholic laity. And an argument may be drawn from hence against those who conceive the political conduct of catholics to be entirely swayed by their priests, when even in the sixteenth century the efforts of these able men, united with the head of their church, could produce so little effect. Strype owns that Allen's book gave offence to many catholics, iii. 560; Life of Whitgift, 505. One Wright of Douay answered a case of conscience, whether catholics might take up arms to assist the king of Spain against the queen, in the negative. Id. 251; Annals, 565. This man, though a known loyalist, and actually in the employment of the ministry, was afterwards kept in a disagreeable sort of confinement, in the Dean of Westminster's house, of which he complains with much reason. Birch's Memoirs, vol. ii. p. 71 et alibi. Though it does not fall within the province of a writer on the constitution to enlarge on Elizabeth's foreign policy, I must observe, in consequence of the laboured attempts of Dr. Lingard to represent it as perfectly Machiavelian, and without 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 scrupulously to good faith than her enemies.

[228] 23 Eliz. c. 1 and 29 Eliz. c. 6.

[229] Strype's Whitgift, p. 117, and other authorities passim.

[230] Camden, Lingard. Two others suffered at Tyburn not long afterwards for the same offence. Holingshed, 344. See in Butler's Mem. of Catholics, vol. iii. p. 382, an affecting narrative, from Dodd's Church History, of the sufferings of Mr. Tregian and his family, the gentleman whose chaplain Mayne had been. I see no cause to doubt its truth.

[231] Ribadeneira, Continuatio Sanderi et Rishtoni de Schismate Anglicano, p. 111; Philopater, p. 247. This circumstance of Sherwood's age is not mentioned by Stowe; nor does Dr. Lingard advert to it. No woman was put to death under the penal code, so far as I remember; which of itself distinguishes the persecution from that of Mary, and of the house of Austria in Spain and the Netherlands.

[232] Strype's Parker, 375.

[233] Strype's Annals, ii. 644.

[234] State Trials, i. 1050; from the Phœnix Britannicus.

[235] Id. 1078; Butler's English Catholics, i. 184, 244; Lingard, vii. 182, whose remarks 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 Inghilterra per la confessione e difensione della fede cattolica," by no means asserts that he acknowledged Elizabeth 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. "Io ho pregato, e prego per lei. All' ora il Signor Howardo li domandò per qual regina egli pregasse, se per Elisabetta? Al quale rispose, Si, per Elisabetta." Mr. Butler quotes this tract in English.

The trials and deaths of Campian and his associates are told in the continuation of Holingshed, with a savageness and bigotry which, I am very sure, no scribe for the Inquisition could have surpassed. P. 456. But it is plain, even from this account, that Campian owned Elizabeth as queen. See particularly p. 488, for the insulting manner in which this writer describes the pious fortitude of these butchered ecclesiastics.

[236] Strype, ii. 637; Butler's Eng. Catholics, i. 196. The Earl of Southampton asked Mary's ambassador, Bishop Lesley, whether, after the bull, he could 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 paragraph: "Hinc etiam infert universa theologorum et jurisconsultorum schola, et est certum et de fide, quemcunque principem christianum, si a religione catholicâ manifestè deflexerit, et alios avocare voluerit, excidere statim omni potestate et dignitate, ex ipsâ vi juris tum divini tum humani, hocque ante omnem sententiam supremi pastoris ac judicis contra ipsum prolatam; et subditos quoscunque liberos esse ab omni juramenti obligatione, quod ei de obedientiâ tanquam principi legitimo præstitissent, posseque et debere (si vires habeant) istiusmodi hominem, tanquam apostatam, hæreticum, ac Christi domini desertorem, et inimicum reipublicæ suæ, hostemque ex hominum christianorum dominatu ejicere, ne alios inficiat, vel suo exemplo 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 truth, 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 strong enough to throw it off. See the same tract, p. 229. But after all, when we come fairly to consider it, is not this the case with every disaffected party in every state? a good reason for watchfulness, but none for extermination.

[237] 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 professors of the old religion, had more regard to civil liberty than to approve such a violation of it. Beal, clerk of the council, wrote, about 1585, a vehement book against the ecclesiastical system, from which Whitgift picks out various enormous propositions, as he thinks them; one of which is, "that he condemns, without exception of any cause, racking of grievous offenders, as being cruel, barbarous, contrary to law, and unto the liberty of English subjects." Strype's Whitgift, p. 212.

[238] The persecution of catholics in England was made use of as an argument against permitting Henry IV. to reign in France, as appears by the title of a tract published in 1586: "Advertissement des catholiques, Anglois aux François catholiques, du danger où ils sont de perdre leur religion et d'expérimenter, comme en Angleterre, la cruauté des ministres, s'ils reçoivent à la couronne un roy qui soit hérétique." It is in the British Museum.

One of the attacks on Elizabeth deserves some notice, as it has lately been revived. In the statute 13 Eliz. 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 prudery, as if the usual term implied the possibility of her having unlawful issue. But the papistical libellers put the most absurd interpretation on the word "natural," as if it was meant to secure the succession for some imaginary 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 malignity of Persons, and the blind frenzy of Whitaker, does not become the good sense, I cannot say the candour, of this writer.

It is true that some, not prejudiced against Elizabeth, have doubted whether "Cupid's fiery dart" was as effectually "quenched in the chaste beams of the watery moon," as her poet intimates. This I must leave to the reader's judgment. She certainly went strange lengths of indelicacy. But, if she might sacrifice herself to the queen of Cnidus and Paphos, she was unmercifully severe to those about her, of both sexes, who showed any inclination to that worship, though under the escort of Hymen. Miss Aikin, in her well written and interesting Memoirs of the Court of Elizabeth, has collected several instances from Harrington and Birch. It is by no means true, as Dr. Lingard asserts, on the authority of one Faunt, an austere puritan, that her court was dissolute, comparatively at least with the general character of courts; though neither was it so virtuous as the enthusiasts of the Elizabethan period suppose.

[239] Somers Tracts, i 189; Strype, iii. 205, 265, 480. Strype says that he had seen the manuscript of this tract in Lord Burleigh's handwriting. 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 London in 1584. This shows how anxious the queen was to repel the charges of cruelty, which she must have felt to be not wholly unfounded.

[240] Somers Tracts, p. 209.

[241] State Trials, i. 1160.

[242] Somers Tracts, 164.

[243] Strype, iii. 298. Shelley, though notoriously loyal and frequently employed by Burleigh, was taken up and examined before the council for preparing this petition.

[244] P. 591. Proofs of the text are too numerous for quotation, and occur continually to a reader of Strype's 2nd and 3rd volumes. In vol. iii. Append. 158, we have a letter to the queen from one Antony Tyrrel, a priest, who seems to have acted as an informer, wherein he declares all his accusations of catholics to be false. This man had formerly professed himself a protestant, and returned afterwards to the same religion; so that his veracity may be dubious. So, a little further on, we find in the same collection (p. 250) a letter from one Bennet, a priest, to Lord Arundel, lamenting the false accusations he had given against him, 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 sure to become their dupes, and end by the most violent injustice and tyranny.

[245] The rich catholics compounded for their recusancy by annual payments, which were of some consideration in the queen's rather scanty revenue. A list of such recusants, and of the annual fines paid by them in 1594, is published in Strype, iv. 197, but is plainly very imperfect. The total was £3323 1s. 10d. 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 oppressive, were not quite so serious as the catholics pretended.

[246] Parry seems to have been privately reconciled to the church of Rome about 1580; after which he continued to correspond with Cecil, but generally recommending some catholics to mercy. He says, in one letter, that a book printed at Rome, De Persecutione Anglicanâ, had raised a barbarous opinion of our cruelty; and that he could wish that in those cases it might please her majesty to pardon the dismembering and drawing. Strype, iii. 260. He sat afterwards in the parliament of 1584, taking, of course, the oath of supremacy, where he alone opposed the act against catholic priests. Parl. Hist. 822. Whether he were actually guilty of plotting against the queen's life (for this part of his treason he denied at the scaffold) I cannot say; but his speech there made contained some very good advice to her. The ministry garbled this before its publication in Holingshed and other books; but Strype has preserved a genuine copy. Vol. iii. Append. 102. It is plain that Parry died a catholic; though some late writers of that communion have tried to disclaim him. Dr. Lingard, it may be added, admits that there were many schemes to assassinate Elizabeth, though he will not confess any particular instance. "There exist," he says, "in the archives at Simancas several notices of such offers."—P. 384.

[247] It might be inferred from some authorities that the catholics had become in a great degree disaffected to the queen about 1584, in consequence of the extreme rigour practised against them. In a memoir of one Crichton, a Scots jesuit, intended to show the easiness of invading England, he says, that "all the catholics without exception favour the enterprise, first, for the sake of the restitution of the catholic faith; secondly, for the right and interest which the Queen of Scots has to the kingdom, and to deliver her out of prison; thirdly, for the great trouble and misery they endure more and more, being kept out of all employments, and dishonoured in their own countries, and treated with great injustice and partiality when they have need to recur to law; and also for the execution of the laws touching the confiscation of their goods in such sort as in so short time would reduce the catholics to extreme poverty." Strype, iii. 415. And in the report of the Earl of Northumberland's treasons, laid before the star-chamber, we read that "Throckmorton said, that the bottom of this enterprise, which was not to be known to many, was, that if a toleration of religion might not be obtained without alteration of the government, that then the government should be altered, and the queen removed." Somers Tracts, vol. i. p. 206. Further proofs that the rigour used towards the catholics was the great means of promoting Philip's designs occur in Birch's Memoirs of Elizabeth, i. 82 et alibi.

We have also a letter from Persons in England to Allen in 1586, giving a good account of the zeal of the catholics, though a very bad one of their condition through severe imprisonment and other ill-treatment. Strype, iii. 412, and Append. 151. Rishton and Ribadeneira bear testimony that the persecution had rendered the laity more zealous and sincere. De Schismate, l. iii. 320, and l. iv. 53.

Yet to all this we may oppose their good conduct 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 leaders wished, or their enemies believed. However, if any of my readers should incline to suspect that there was more disposition among this part of the community 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 disaffection to her unjust aggressions on the liberty of conscience.

[248] State Trials, i. 1162.

[249] 27 Eliz. c. i.

[250] In Murden's State Papers we have abundant evidence of Mary's acquaintance with the plots going forward in 1585 and 1586 against Elizabeth's government, if not with those for her assassination. But Thomas Morgan, one of the most active conspirators, writes to her, 9th July, 1586: "There be some good members that attend opportunity to do the Queen of England a piece of service, which I trust will quiet many things, if it shall please God to lay his assistance to the cause, for the which I pray daily."—P. 530. In her answer to this letter, she does not advert to this hint, but mentions Babington as in correspondence with her. At her trial she denied all communication with him.

[251] It may probably be answered to this, that if the letter signed by Walsingham as well as Davison to Sir Amias Paulet, urging him "to find out some way to shorten the life of the Scots queen," be genuine, which cannot perhaps be justly questioned (though it is so in the 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 choose to overlook, that it was written after the sentence, during the queen's odious scenes of grimace, when some might argue, though erroneously, that, a legal trial having passed, the formal method of putting the prisoner to death might in so peculiar a case, be dispensed with. This was Elizabeth's own wish, in order to save her reputation, and enable her to throw the obloquy on her servants; which by Paulet's prudence and honour in refusing to obey her by privately murdering his prisoner, she was reduced to do in a very bungling and scandalous manner.

[252] Questions were put to civilians by the queen's order in 1570, concerning the extent of Lesley, Bishop of Ross's privilege, as Mary's ambassador. Murden Papers, p. 18; Somers Tracts, i. 186. They answered, first, that an ambassador that raises rebellion against the prince to whom he is sent, by the law of nations, and the civil law of the Romans, has forfeited the privileges of an ambassador, and is liable to punishment: secondly, that if a prince be lawfully deposed from his public authority, and another substituted in his stead, the agent of such a prince cannot challenge the privileges 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 in matter of science, in which a particular class of lawyers was conversant.

[253] Strype, 360, 362. Civilians were consulted about the legality of trying Mary. Idem, Append. 138.

[254] Butler's English Catholics, i. 259; Hume. This is strongly confirmed by a letter printed not long after, and republished in the Harleian Miscellany, vol. i. p. 142, with the name of one Leigh, a seminary priest, but probably the work of some protestant. He says, "for contributions of money, and for all other warlike actions, there was no difference 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, concourse, and consent of all sorts of persons, 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, I am far from thinking that it would have been safe to place the catholics, generally speaking, in command. Sir William Stanley's recent treachery 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 former, I believe it far better to leave the matter in the hands of the executive 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 trusted, there arises a new condition of the problem.

[255] Strype, vols. iii. and iv. passim; Life of Whitgift, 401, 505; Murden, 667; Birch's Memoirs of Elizabeth, Lingard, etc. One hundred and ten catholics suffered death between 1588 and 1603. Lingard, 513.

[256] 33 Eliz. c. 2.

[257] Camden, 566; Strype, iv. 56. This was the declaration of October 1591, which Andreas Philopater 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.

[258] Butler, 178. In Coke's famous speech in opening the case of the Powder-plot, he says that not more than thirty priests and five receivers had been executed in the whole of the queen's reign, and for religion not any one. State Trials, ii. 179.

Dr. Lingard says of those who were executed between 1588, and the queen's death, "The butchery, 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 sheriff, which one might hope to be stronger in an English gentleman than his zeal against popery. But I cannot help acknowledging that there is reason to believe the disgusting cruelties of the legal sentence to have been frequently inflicted. In an anonymous memorial among Lord Burleigh's papers, written about 1586, it is recommended that priests persisting in their treasonable opinion should be hanged, "and the manner of drawing and quartering forborne." Strype, iii. 620. This seems to imply that it had been usually practised on the living. And Lord Bacon, in his observations on a libel written against Lord Burleigh in 1592, does not deny the "bowellings" 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.

[259] Burnet, ii. 418.

[260] "Though no papists were in this reign put to death purely on account of their religion, as numberless protestants had been in the woeful days of Queen Mary, yet many were executed for treason." Churton's Life of Nowell, p. 147. Mr. Southey, whose abandonment of the oppressed side I sincerely regret, holds the same language; and a later writer, Mr. Townsend, in his Accusations of History against the Church of Rome, has laboured to defend the capital, as well as other, punishments of catholics under Elizabeth, on the same pretence of their treason.

Treason, by the law of England, and according to the common use of language, is the crime of rebellion or conspiracy against the government. If a statute is made, by which the celebration of certain religious rites is subjected to the same penalties 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 liable on any other account.

This is applicable to the great majority of capital 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 anything properly denominated treason. It certainly appears that Campian and some other priests 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 suspect, that could be brought against them, was their own admission, at least by refusing to abjure 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 this principle, it could not fall within the statute.

[261] Watson's Quodlibets. True relation of the faction begun at Wisbech, 1601. These tracts contain rather an uninteresting account of the squabbles in Wisbech castle among the prisoners, but cast heavy reproaches on the jesuits, as the "firebrands 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.

[262] Rymer, xv. 473, 488.

[263] Butler's Engl. Catholics, p. 261.

[264] Ribadeneira says, that Hatton, "animo Catholicus, nihil perinde quam innocentem illorum sanguinem adeo crudeliter perfundi dolebat." He prevented Cecil from promulgating a more atrocious edict than any other, which was published after his death in 1591. De Schismate Anglic. c. 9. This must have been the proclamation of 29th Nov. 1591, forbidding all persons to harbour any one, of whose conformity they should not be well assured.

[265] Birch, i. 84.

[266] Sleidan, Hist. de la Réformation (par Courayer), ii. 74.

[267] Strype's Cranmer, 354.

[268] These transactions have been perpetuated by a tract, entitled "Discourse of the Troubles at Frankfort," first published in 1575, and reprinted in the well-known collection entitled The Phœnix. It is fairly and temperately written, though with an avowed bias towards the puritan party. Whatever we read in any historian on the subject, is derived from this authority; but the refraction is of course very different through the pages of Collier and of Neal.

[269] Strype, ii. 1. There was a Lutheran party at the beginning of her reign, to which 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 connect herself with sincere allies, she had thoughts of joining the Smalcaldic league of the German princes, whose bigotry would admit none but members of the Augsburg confession. Jewel's letters to Peter Martyr, in the appendix to Burnet's third volume, throw considerable light on the first two years of Elizabeth's reign; and show that famous prelate to have been what afterwards would have been called a precisian or puritan. He even approved a scruple Elizabeth entertained about her title of head of the church, as appertaining only to Christ. But the unreasonableness of the discontented party, and the natural tendency of a man who has joined the side of power to deal severely with those he has left, made him afterwards their enemy.

[270] Roods and relics accordingly were broken to pieces and burned throughout the kingdom, of which Collier makes loud complaint. This, Strype says, gave much offence to the catholics; and it was not the most obvious method of inducing them to conform.

[271] Burnet, iii. Appendix, 290; Strype's Parker, 46.

[272] Quantum auguror, non scribam ad te posthac episcopus. Eo enim jam res pervenit, ut aut cruces argenteæ et stanneæ, quas nos ubique confregimus, restituendæ sint, aut episcopatus relinquendi. Burnet, 294. Sandys writes, that he had nearly been deprived for expressing himself warmly against images. Id. 296. Other proofs of the text may be found in the same collection, as well as in Strype's Annals, and his Life of Parker. 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.

[273] Strype's Parker, 310. The archbishop seems to disapprove this as inexpedient, but rather coldly; he was far from sharing the usual opinions on this subject. A puritan pamphleteer took the liberty to name the queen's chapel as "the pattern and precedent of all superstition." Strype's Annals, i. 471.

[274] Burnet, ii. 395.

[275] One of the injunctions to the visitors of 1559, reciting the offence and slander to the church that had arisen by lack of discreet and sober behaviour in many ministers, both in choosing of their wives, and in living with them, directs that no priest or deacon shall marry without 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 permitted to exercise the ministry, or hold any benefice; and that the marriages of bishops should be approved by the metropolitan, and also by commissioners appointed by the queen. Somers Tracts, i. 65; Burnet, ii. 398. It is reasonable to suppose, that when a host of low-bred and illiterate priests were at once released from the obligation to celibacy, many of them would abuse their liberty improvidently, or even scandalously; and this probably had increased Elizabeth's prejudice against clerical matrimony. But I do not suppose that this injunction was ever much regarded. Some time afterwards (Aug. 1561) she put forth another extraordinary injunction, that no member of a college or cathedral should have his wife living 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 difficulty 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 horror to hear such words to come from her mild nature and Christianly learned conscience, as she spake concerning God's holy ordinance and institution of matrimony.

[276] Sandys writes to Parker, April 1559, "The queen's majesty will wink at it, but not stablish 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 sumptuously entertained by the archbishop at Lambeth, took leave of Mrs. Parker with the following courtesy: "Madam (the style of a married lady) I may not call you; mistress (the appellation at that time of an unmarried woman) I am loth to call you; but, however, I thank you for your good cheer." The lady is styled, in deeds made while her husband was archbishop, Parker, alias Harleston; which was her maiden name. And she dying before her husband, her brother is called her heir-at-law, though she left children. But the archbishop procured letters of legitimation, in order to render them capable of inheritance. Life of Parker, 511. Others did the same. Annals, i. 8. Yet such letters were, I conceive, beyond the queen's power to grant, and could not have obtained any regard in a court of law.

In the diocese of Bangor, it was usual for the clergy, some years after Elizabeth's accession, to pay the bishop for a licence to keep a concubine. Strype's Parker, 203.

[277] Burnet, iii. 305.

[278] Jewel's letters to Bullinger, in Burnet, are full of proofs of his dissatisfaction; and those who feel any doubts may easily satisfy themselves from the same collection, and from Strype as to the others. The current opinion, that these scruples were imbibed during the banishment of our reformers, must be received with great allowance. The dislike to some parts of the Anglican ritual had begun 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 correspondents. Grindal, when first named to the see of London, had his scruples about wearing the episcopal habits removed by Peter Martyr. Strype's Grindal, 29.

[279] 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 ordinary's discretion, to take away organs, and one or two more of the ceremonies then chiefly in dispute. Burnet, iii. 303 and Append. 319; Strype, 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.

[280] Jewel, one of these visitors, writes afterwards to Martyr: "Invenimus ubique animos multitudinis satis propensos ad religionem; ibi etiam, ubi omnia putabantur fore difficillima.... Si quid erat obstinatæ malitiæ, id totum erat in presbyteris, illis præsertim, qui aliquando stetissent à nostrâ sententiâ." Burnet, iii. Append. 289. The common people in London and elsewhere, Strype says, took an active part in demolishing images; the pleasure of destruction, I suppose, mingling with their abhorrence of idolatry. And during the conferences held in Westminster Abbey, Jan. 1559, 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 for breaking off the argument. There was indeed such a tendency to anticipate the government in reformation, as necessitated 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 inclined 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 towards their pastors may well be doubted; it could not be founded on the natural grounds of esteem; and if Rishton, the continuator of Sanders de Schismate, whom he quotes, says that one-third of the nation was protestant, we may surely double the calculation of so determined a papist. As to the influence which Mr. B. alleges the court to have employed in elections for Elizabeth's first parliament, the argument would equally prove that the majority was protestant under Mary, since she had recourse to the same means. The whole tenor of historical documents in Elizabeth's reign proves that the catholics soon became a minority, and still more among the common people than the gentry. The north of England, where their strength lay, was in every respect the least important part of the kingdom. Even according to Dr. Lingard, who thinks fit to claim half the nation as catholic in the middle of this reign, the number of recusants certified to the council under 23 Eliz. c. 1, amounted only to fifty thousand; and, if we can trust the authority 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 suspected 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 literally maintains the catholics to have been at least one half of the people at the epoch of the gunpowder plot. Vol. i. p. 295. We should be glad to know at what time he supposes the grand apostasy to have been consummated. Cardinal Bentivoglio gives a very different account; reckoning the real catholics, such as did not make profession of heresy, at only a thirtieth part of the whole; though he supposes that four-fifths might become such, from secret inclination or general indifference, if it were once established. Opere di Bentivoglio, p. 83, edit. Paris, 1645. But I presume neither Mr. Butler nor Dr. Lingard would own these adiaphorists.

The latter writer, on the other hand, reckons the Hugonots of France, soon after 1560, at only one-hundredth part of the nation, quoting for this Castelnau, a useful memoir writer, but no authority on a matter of calculation. The stern spirit of Coligni, atrox animus Catonis, rising above all misfortune, and unconquerable, except by the darkest treachery, is sufficiently admirable without 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, lukewarmness and self-interest, had thinned their ranks, they are estimated by Bentivoglio (ubi supra) at one-fifteenth.

[281] Strype's Parker, 152, 153; Collier, 508. In the Lansdowne Collection, vol. viii. 47, is a letter from Parker, Apr. 1565, complaining of Turner, dean of Wells, for having made a man do penance for adultery in a square cap.

[282] Strype's Parker, 157, 173.

[283] This apprehension of Elizabeth's taking a disgust to protestantism is intimated in a letter of Bishop Cox. Strype's Parker, 229.

[284] Parker sometimes declares himself willing to see some indulgence as to the habits and other matters; but, the queen's commands being peremptory, 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 appears to importune the queen to proceed. Her 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 in writing to Cecil, who was against driving the puritans to extremities. But, on the review of his whole behaviour, he must be reckoned, and always has been reckoned, the most severe disciplinarian of Elizabeth's first hierarchy; though more violent men came afterwards.

[285] Strype's Annals, 416; Parker, 159. Some years after, these advertisements obtained the queen's sanction, and got the name of Articles and Ordinances. Id. 160.

[286] Strype's Annals, 416, 430; Life of Parker, 184. Sampson had refused a bishopric on account of these ceremonies. Burnet, iii. 292.

[287] Life of Parker, 214. Strype says (p. 223) that the suspended ministers preached again after a little time by connivance.

[288] Jewel is said to have become strict in enforcing the use of the surplice. Annals, 421.

[289] Strype's Annals, i. 423, ii. 316; Life of Parker, 243, 348; Burnet, iii. 310, 325, 337. Bishops Grindal and Horn wrote to Zurich, saying plainly, it was not their fault that the habits were not laid aside, with the cross in baptism, the use of organs, baptism by women, etc. P. 314. This last usage was much inveighed against by the Calvinists, because it involved a theological tenet differing from their own, as to the necessity of baptism. In Strype's Annals, 501, we have the form of an oath taken by all mid-wives, to exercise their calling 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 (Annals, i. 452; Collier, 503); but dissuaded the puritans from separation, and advised them rather to comply with the ceremonies. Id. 511.

[290] Strype's Life of Parker, 242; Life of Grindal, 114.

[291] Burnet, iii. 316; Strype's Parker, 155 et alibi.

[292] Id. 226. The church had but two or three friends, Strype says, in the council about 1572, of whom Cecil was the chief. Id. 388.

[293] Burnet says, on the authority of the visitors' reports, that out of 9400 beneficed clergymen, not more than about 200 refused to conform. This caused for some years just apprehensions of the danger into which religion was brought by their retaining their affections to the old superstition; "so that," he proceeds, "if Queen Elizabeth had not lived so long as she did, till all that generation was dead, and a new set of men better educated and principled were grown up and put in their rooms; and if a prince of another religion had succeeded before that time, they had probably turned about again to the old superstition as nimbly as they had done before in Queen Mary's days." Vol. ii. p. 401. It would be easy to multiply testimonies out of Strype, to the papist inclinations of a great part of the clergy in the first part of this reign. They are said to have been sunk in superstition and looseness of living. Annals, i. 166.

[294] Strype's Annals, 138, 177; Collier, 436, 465. This seems to show that more churches were empty by the desertion of popish incumbents than the foregoing note would lead us to suppose. I believe that many went off to foreign parts from time to time, who had complied in 1559; and others were put out of their livings. The Roman catholic writers make out a longer list than Burnet's calculation allows.

It appears from an account sent in to the privy council by Parkhurst, Bishop of Norwich, in 1562, that in his diocese more than one-third of the benefices were vacant. Annals, i. 323. But in Ely, out of 152 cures only 52 were served in 1560. L. of Parker, 72.

[295] Parker wrote in 1561 to the bishops of his 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," Strype says, "was commonly set down; Latinè aliqua verba intelligit, Latinè utcunque intelligit; Latinè pauca intelligit," etc. Sometimes, however, we find doctus. L. of Parker, 95. But if the clergy could not read the language in which their very prayers were composed, what other learning or knowledge could they have? Certainly none; and even those who had gone far enough to study the school logic and divinity, do not deserve a much higher place than the wholly uninstructed. The Greek tongue was never generally taught in the universities or public schools till the Reformation, and perhaps not so soon.

Since this note was written, a letter of Gibson has been published in Pepys's Memoirs, vol. ii. p. 154, mentioning a catalogue he had found of the clergy in the archdeaconry of Middlesex, a.d. 1563, with their qualifications annexed. Three only are described as docti Latinè et Græcè; twelve are called docti simply; nine, Latinè docti; thirty-one, Latinè mediocriter intelligentes; forty-two, Latinè perperam, utcunque aliquid, pauca verba, etc., intelligentes; seventeen are non docti or indocti. If this was the case in London, what can we think of more remote parts

[296] In the struggle made for popery at the queen's accession, the lower house of convocation sent up to the bishops five articles of faith, all strongly catholic. These had previously been transmitted to the two universities, and returned with the hands of the greater part of the doctors to the first four. The fifth they scrupled, as trenching too much on the queen's temporal power. Burnet, ii. 388, iii. 269.

Strype says, the universities were so addicted to popery that for some years few educated in them were ordained. Life of Grindal, p. 50. And Wood's Antiquities of the University of Oxford 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 affectionaries." These chiefly came from the west, "where popery greatly prevailed, and the gentry were bred up in that religion." Strype's Annals, ii. 539. But afterwards, Wood complains, "through the influence of Humphrey and Reynolds (the latter of whom became divinity lecturer on Secretary Walsingham's foundation in 1586), the disposition of the times, and the long continuance of the Earl of Leicester, the principal patron of the puritanical 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 Oxford, vol. ii. p. 228. Previously, however, to this change towards puritanism, the university had not been Anglican, but popish; which Wood liked much better than the first, and nearly as well as the second.

A letter from the University of Oxford to Elizabeth on her accession (Hearne's edition of Roper's Life of More, p. 173) shows the accommodating character of these academies. They extol Mary as an excellent queen, but are consoled by the thought of her excellent successor. One sentence is curious: "Cum patri, fratri, sorori, nihil fuerit republicâ carius, religione optatius, verâ gloriâ dulcius; cum in hâc familiâ hæ laudes floruerint, vehementer confidimus, etc., quæ ejusdem stirpis sis, easdem cupidissime prosecuturam." It was a singular strain of complaisance to praise Henry's, Edward's, and Mary's religious sentiments in the same breath; but the queen might at least learn this from it, that whether she fixed on one of their creeds, or devised a new one for herself, she was sure of the acquiescence of this ancient and learned body. A preceding letter to Cardinal Pole, in which the times of Henry and Edward are treated more cavalierly, seems by the style, which is very elegant, to have been the production of the same pen.

[297] The fellows and scholars of St. John's College, to the number of three hundred, threw off their hoods and surplices, in 1565, without any opposition from the 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; not only the more intemperate party, but many heads of colleges and grave men, among whom we are rather surprised to find the name of Whitgift, interceding with their chancellor for some mitigation as to these unpalatable observances. Strype'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 college that bears his name, was among the most remarkable. Id. 200. The Chancellors of Oxford and Cambridge, Leicester and Cecil, kept a very strict hand over them, especially the latter, who seems to have acted as paramount visitor over every college, making them reverse any act which he disapproved. Strype, passim.

[298] Strype's Annals, i. 583; Life of Parker, 312, 347; Life of Whitgift, 27.

[299] Cartwright's Admonition, quoted in Neal's Hist. of Puritans, i. 88.

[300] Madox's Vindication of Church of England against Neal, p. 122. This writer quotes several very extravagant passages from Cartwright, which go to prove irresistibly that he would have made no compromise short of the overthrow of the established church. P. 111, etc. "As to you, dear brethren," is said in a puritan tract of 1570, "whom God hath called into the brunt of the battle, the Lord keep you constant, that ye yield neither to toleration, neither to any other subtle persuasions of dispensations and licences, which were to fortify their Romish practices; but, as you fight the Lord's fight, be valiant." Madox, p. 287.

[301] These principles had already been broached by those who called Calvin master; he had himself become a sort of prophet-king at Geneva. And Collier quotes passages from Knox's Second Blast, inconsistent with any government, except one slavishly subservient to the church. P. 444. The nonjuring historian holds out the hand of fellowship to the puritans he abhors, when they preach up ecclesiastical independence. Collier liked the royal supremacy as little as Cartwright; and in giving an account of Bancroft's attack on the nonconformists for denying it, enters upon a long discussion in favour of an absolute emancipation from the control of laymen. P. 610. He does not even approve the determination of the judges in Cawdrey's case (5 Coke's Reports), though against the nonconformists, as proceeding on a wrong principle of setting up the state above the church. P. 634.

[302] The school of Cartwright were as little disposed as the episcopalians to see the 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 factious, and the lay factious. The former, he says, contend and lay it down in their supplication to parliament in 1585, that things once dedicated to a sacred use ought so to remain for ever, and not to be converted to any private use. The lay, on the contrary, think it enough for the clergy to fare as the apostles did. Cartwright did not spare those who longed to pull down bishoprics 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.

[303] The old friends and protectors of our reformers at Zurich, Bullinger and Gualter, however they had favoured the principles of the first nonconformists, write in strong disapprobation of the innovators of 1574. Strype's Annals, ii. 316. And Fox, the martyrologist, a refuser to conform, speaks, in a remarkable letter quoted by Fuller in his Church History, p. 107, of factiosa illa Puritanorum capita, saying that he is totus ab iis alienus, and unwilling perbacchari in episcopos. The same is true of Bernard Gilpin, who disliked some of the ceremonies, and had 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. Carleton's Life of Gilpin, and Wordsworth's Ecclesiastical Biography, vol. iv. Neal has not reported the matter faithfully.

[304] "The puritan," says Persons the jesuit, in 1594, "is more generally favoured throughout the realm with all those which are not of the Roman religion than is the protestant, upon a certain general persuasion, that his profession is the more perfect, especially in great towns, where preachers have made more impression in the artificers and burghers than in the country people. And among the protestants themselves, all those that were less interested in ecclesiastical livings, or other preferments depending of the state, are more affected commonly to the puritans, or easily are to be induced 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 rigorous of any other, that is to say, 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 parliamentary proceedings of this reign. The following observation will confirm what may startle some readers; that the puritans, or at least those who rather favoured them, had a majority among the protestant gentry 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 proprietors, and as much represented the general wish of the community when it demanded a further reform 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, formed a majority of all parliaments under Elizabeth and her two successors.

[305] 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 difficult to prove that, with a view to the interests of religion among the people, or of the clergy themselves, taken as a body, any pluralities of benefices with cure of souls ought to remain, except of small contiguous parishes. But with a view to the interests of some hundred well connected ecclesiastics, the difficulty is none at all.

[306] D'Ewes, p. 156; Parliament. Hist. i. 733, etc.

[307] D'Ewes, p. 239; Parl. Hist. 790; Strype's Life of Parker, 394.

In a debate between Cardinal Carvajal and Rockisane, the famous Calixtin archbishop of Prague, at the council of Basle, the former said he would reduce the whole argument to two syllables; Crede. The latter replied he would do the same, and confine himself to two others; Proba. Lenfant makes a very just observation on this: "Si la gravité de l'histoire le permettoit, on diroit avec le comique: C'est tout comme ici. Il y a long tems que le premier de ces mots est le langage de ce qu'on appelle l'Eglise, et que le second est le langage de ce qu'on appelle l'heresie." Concile de Basle, p. 193.

[308] Several ministers were deprived, in 1572, for refusing to subscribe the articles. Strype, ii. 186. Unless these were papists, which indeed is possible, their objection must have been to the articles touching discipline; for the puritans liked the rest very well.

[309] Neal, 187; Strype's Parker, 325. 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 privy council gave over, they would hinder her majesty's government more than they were aware, and much abate the estimation of their own authorities," etc. Id. p. 421; Cartwright's Admonition was now prohibited to be sold. Ibid.

[310] Neal, 210.

[311] Strype's Annals, i. 433.

[312] Strype's Annals, ii. 219, 232; Life of Parker, 461.

[313] Strype's Life of Grindal, 219, 230, 272. The archbishop's letter to the queen, declaring his unwillingness 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 severity she showed towards him. Grindal was a very honest, conscientious man, but too little of a courtier 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.

[314] Strype's Whitgift, 27 et alibi. He did not disdain to reflect on Cartwright for his poverty, the consequence of a scrupulous adherence to his principles. But the controversial writers of every side in the sixteenth century display a want of decency and humanity which even our anonymous libellers have hardly matched. Whitgift was not of much learning, if it be true, as the editors of the Biographia Britannica intimate, that he had no acquaintance with the Greek language. This must seem strange to those who have an exaggerated notion of the scholarship of that age.

[315] Strype's Whitgift, 115.

[316] Neal, 266; Birch's Memoirs of Elizabeth, vol. i. p. 42, 47, etc.

[317] According to a paper in the appendix to Strype's Life of Whitgift, p. 60, the number of conformable ministers in eleven dioceses, not including those of London and Norwich, the strongholds of puritanism, was 786, that of non-compliers 49. But Neal says that 233 ministers were suspended in only six counties, 64 of whom in Norfolk, 60 in Suffolk, 38 in Essex. P. 268. The puritans formed so much the more learned and diligent part of the clergy, that a great scarcity of preachers was experienced throughout this reign, in consequence of silencing so many of the former. Thus in Cornwall, about the year 1578, out of 140 clergymen, not one was capable of preaching. Neal, p. 245. And, in general, the number of those who could not preach, but only read the service, 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 highly probable. Let it be remembered that there existed few books of divinity in English; that all books were, comparatively to the value of money, far dearer than at present; that the majority of the clergy were nearly illiterate, and many of them addicted to drunkenness and low vices; above all, that they had no means of supplying their deficiences by preaching the discourses of others; and we shall see little cause for doubting Neal's statement, though founded on a puritan document.

[318] Life of Whitgift, 137 et alibi pluries; Annals, iii. 183.

[319] Neal, 274; Strype's Annals, iii. 180.

The germ of the high commission court seems to have been a commission granted by Mary (Feb. 1557) 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 deprivation for not reading the common prayer, granted to the high commissioners, were legal; the Act of Uniformity having annexed a much smaller penalty. But it was held by the judges in the case of Cawdrey (5 Coke Reports), that the act did not take away the ecclesiastical jurisdiction and supremacy 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.

[320] Strype's Whitgift, 135; and Appendix, 49.

[321] Id. 157, 160.

[322] Id. 163, 166 et alibi; Birch's Memoirs, i. 62. There was said to be a scheme on foot, about 1590, to make all persons in office subscribe a declaration that episcopacy was lawful by the word of God, which Burleigh prevented.

[323] Neal, 325, 385.

[324] Id. 290; Strype's Life of Aylmer, p. 59, etc. His biographer is here, as in all his writings, too partial to condemn, but too honest to conceal.

[325] Neal, 294.

[326] Strype's Aylmer, 71. When he grew old, and reflected that a large sum of money would be due from his family, for dilapidations of the palace at Fulham, etc., he literally proposed to sell his bishopric to Bancroft. Id. 169. The other, however, waited for his death, and had above £4000 awarded to him; but the crafty old man having laid out his money in land, this sum was never paid. Bancroft tried to get an act of parliament in order to render the real estate liable, but without success. P. 194.

[327] Somers' Tracts, i. 166.

[328] Bacon's Works, i. 532.

[329] Birch's Memoirs, ii. 146.

[330] Id. ibid. Burleigh does not shine much in these memoirs; but most of the letters they contain are from the two Bacons, then engaged in the Essex faction, though nephews of the treasurer.

[331] The first of Martin Mar-prelate's libels were published 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. Strype's Whitgift, 288. These pamphlets are scarce; but a few extracts from them may be found in Strype, and other authors. The abusive language of the puritan pamphleteers had begun several years before. Strype's Annals, ii. 193. See the trial of Sir Richard Knightley of Northamptonshire for dispersing puritanical libels. State Trials, i. 1263.

[332] 23 Eliz. c. 2.

[333] Penry's protestation at his death is in a style of the most affecting and simple eloquence. Life of Whitgift, 409, and Appendix 176. It is a striking contrast to the coarse abuse for which he suffered. The authors of Martin Mar-prelate were never fully discovered; but Penry seems not to deny his concern in it.

[334] State Trials, 1271. It may be remarked on this as on other occasions, that Udal's trial is evidently published by himself; and a defendant, especially in a political proceeding, is apt to give a partial colour to his own case. Life of Whitgift, 314; Annals of Reformation, iv. 21; Fuller's Church History, 122; Neal, 340. This writer says: "Among the 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 wilful and audacious attempt to impose on the reader; as if the ensuing pages did not let him into all the circumstances. I will here observe that Warburton, in his self-conceit, has paid a much higher compliment to Neal than he intended, speaking of his own comments as "a full confutation (I quote from memory) of that historian's false facts and misrepresentations." But when we look at these, we find a good deal of wit and some pointed remarks, but hardly anything 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 puritan about the time. It was answered by Madox, afterwards bishop of Worcester, in a Vindication of the Church of England, published anonymously in 1733. Neal replied with tolerable success; but Madox's book is still an useful corrective. Both, however, were, like most controversialists, prejudiced men, loving the interests of their respective factions better than truth, and not very scrupulous about misrepresenting an adversary. But Neal had got rid of the intolerant spirit of the puritans, while Madox labours to justify every act of Whitgift and Parker.

[335] Life of Whitgift, 328.

[336] Id. 336, 360, 366, Append. 142, 159.

[337] Id. Append. 135; Annals, iv. 52.

[338] This predilection for the Mosaic polity was not uncommon among the reformers; Collier quotes passages from Martin Bucer as strong as could well be found in the puritan writings. P. 303.

[339] Life of Whitgift, p. 61, 333, and Append. 138; Annals, iv. 140. As I have not seen the original works in which these tenets are said to be promulgated, I cannot vouch for the fairness of the representation made by hostile pens, though I conceive it to be not very far from the truth.

[340] Ibid. Madox's Vindication of the Ch. of Eng. against Neal, p. 212; Strype's Annals, iv. 142.

[341] 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, 258; Annals, iv. 142.

[342] See a declaration to this effect, at which no one could cavil, in Strype's Annals, iv. 85. The puritans, or at least some of their friends, retaliated this charge of denying the queen's supremacy on their adversaries. Sir Francis Knollys strongly opposed the claims of episcopacy, as a divine institution, 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 danger into which she was brought by the machinations of the pope and King of Spain. Life of Whitgift, p. 350, 361, 389. He wrote afterwards to Lord Burleigh in 1591, that if he might not speak his mind freely against the power of the bishops, and prove it unlawful, by the laws of this realm, and not by the canon law, he hoped to be allowed to become a private man. This bold letter he desires to have shown to the queen. Lansdowne Catalogue, vol. lxviii. 84.

[343] D'Ewes, 302; Strype's Whitgift, 92, Append. 32.

[344] D'Ewes, 339 et post; Strype's Whitgift, 176, etc., Append. 70.

[345] Strype's Annals, iii. 228.

[346] Strype's Annals, iii. 186, 192. Compare Append. 35.

[347] Strype's Whitgift, 279; Annals, iii. 543.

[348] Parl. Hist. 921.

[349] Strype's Whitgift, 521, 537, App. 136. The archbishop could not disguise his dislike to the lawyers. "The temporal lawyer," he says in a letter to Cecil, "whose learning is no learning anywhere but here at home, being born to nothing, doth by his labour and travel in that barbarous knowledge purchase to himself and his heirs for ever a thousand pounds per annum, and oftentimes much more, whereof there are at this day many examples."—P. 215.

[350] Strype's Whitgift, and D'Ewes, passim. In a convocation held during Grindal's sequestration (1580), proposals for reforming certain abuses in the spiritual courts were considered; but nothing was done in it. Strype's Grindal, p. 259, and Appendix, p. 97. And in 1594, a commission to enquire into abuses in the spiritual courts was issued; but whether this were intended bonâ fide or not, it produced no reformation. Strype's Whitgift, 419.

[351] 35 Eliz. c. 1; Parl. Hist. 863.

[352] Neal asserts in his summary of the controversy, as it stood in this reign, that the puritans did not object to the office of bishop, provided he was only the head of the presbyters, and acted in conjunction with them. P. 398. But this was in effect to demand everything. For if the 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 church and nonconforming parties under Elizabeth. P. 147. He concludes with the following remark, which is very true. "Both parties agreed too well in asserting the necessity of an uniformity of public worship, and of calling in the sword of the magistrates for the support and defence of the several principles, which they made an ill use of in their turns, as they could grasp the power into their hands. The standard of uniformity, according to the bishops, was the queen's supremacy and the laws of the land; according to the puritans, the decrees of provincial and national synods, allowed and enforced by the civil magistrate; but neither party were for admitting that liberty of conscience and freedom of profession which is every man's right, as far as is consistent with the peace of the government he lives under.

[353] Neal, 253, 386.

[354] Strype'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; the proof of which was their dispersion of Brown's tracts, wherein that was only owned in civil cases. Strype's Annals, iii. 186. This was according to the invariable practice of Tudor times: an oppressive and sanguinary statute was first made; and next, as occasion might serve, a construction was put on it contrary to all common sense, in order to take away men's lives.

[355] "The discipline of Christ's church," said Cartwright, "that is necessary for all times, is delivered by Christ, and set down in the Holy Scriptures. Therefore the true and lawful discipline is to be fetched from thence, and from thence alone. And that which resteth upon any other foundation ought to be esteemed unlawful and counterfeit." Whitgift, in his answer to Cartwright's Admonition, rested the controversy in the main, as Hooker did, on the indifferency of church discipline and ceremony. It was not till afterwards that the defenders of the established order found out that one claim of divine right was best met by another.

[356] "If the natural strength of men's wit may by experience and study attain unto such ripeness in the knowledge of things human, that 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, furnished with necessary helps, exercised in scripture with like diligence, and assisted with the grace of Almighty God, may grow unto so much perfection of knowledge, that men shall have just cause, when anything pertinent unto faith and religion is doubted of, the more willingly to incline their minds towards 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," etc. But Hooker's mistake was to exaggerate the weight of such men's judgment; and not to allow enough for their passions and infirmities, the imperfection of their knowledge, their connivance with power, their attachment to names and persons, and all the other drawbacks to ecclesiastical authority.

It is well known that the preface to the Ecclesiastical 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 was effected.

[357] In the life of Hooker prefixed to the edition I use, fol. 1671, I find an assertion of Dr. Barnard, chaplain to Usher, that he 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 style. But the question is rather with respect to interpolations than omissions. And of the former I see no evidence or likelihood. If it be true, as is alleged, that different manuscripts of the three last books 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 digested note on this subject, the result of which has been to convince me that there is no reason to believe 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 probability, however, of their authenticity is from internal evidence.

A late writer has produced a somewhat ridiculous proof of the carelessness with which all editions of the Ecclesiastical Polity have been printed; a sentence having slipped into the text of the seventh book, which makes nonsense, and which he very probably conjectures to have been a marginal memorandum of the author for his own use on revising the manuscript. M'Crie's Life of Melvil, vol. i. p. 471.

[358] The puritans objected to the title of lord bishops. Sampson wrote a peevish letter to Grindal on this, and received a very good answer. Strype's Parker, Append. 178. Parker, in a letter to Cecil, defends it on the best ground; that the bishops hold their lands by barony, and therefore the giving them the title of lords was no irregularity, and nothing more than a consequence of the tenure. Collier, 544. This will not cover our modern colonial bishops, on whom the same title has, without any good reason, been conferred.

[359] Strype's Annals, i. 159.

[360] 1 Eliz. c. 19; 13 Eliz. c. 10; Blackstone's Commentaries, vol. ii. c. 28. The exception in favour of the Crown was repealed in the first year of James.

[361] 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 Strype's Annals, vol. ii. Append. 84. The names of Hatton Garden and Ely Place (Mantua væ miseræ nimium vicina Cremonæ) still bear witness to the encroaching lord keeper, and the elbowed bishop.

[362] Strype, 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 honour.

[363] Harrington's "State of the Church," in Nugæ Antiquæ, vol. ii. passim; Wilkins's Concilia, iv. 256; Strype's Annals, iii. 620 et alibi; Life of Parker, 454; of Whitgift, 220; of Aylmer, passim. Observe the preamble of 13 Eliz. c. 10. It must be admitted, on the other hand, that the gentry, when popishly or puritanically affected, were apt to behave exceedingly ill towards the bishops. At Lambeth and Fulham they were pretty safe; but at a distance they found it hard to struggle with the rudeness and iniquity of the territorial aristocracy; as Sandys twice experienced.

[364] Birch's Memoirs, i. 48. Elizabeth seems to have 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 Fletcher, Bishop of London, of her own authority, only for marrying "a fine lady and a widow." Strype's Whitgift, 458. 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 Nugæ Antiquæ, i. 170; see too p. 217. It will of course not appear surprising that Hutton, Archbishop of York, an exceedingly honest prelate, having preached a bold sermon before the queen, urging her to settle the succession, and pointing strongly towards Scotland, received a sharp message. P. 250.

[365] D'Ewes, 328.

[366] 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 in baptism, and the surplice; 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 general conduct.

[367] Bacon, ii. 375. See also another paper concerning the pacification of the church, written under James, p. 387. "The wrongs," he says, "of those which are possessed of the government of the church towards the other, may hardly be dissembled 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 friends among their counsellors.

[368] Burnet, ii. 418; Cabala, part ii. 38 (4to edition). Walsingham grounds the queen's proceedings upon two principles: the one, that "consciences are not to be forced, but to be won and reduced by force of truth, with the aid of time, and use of all good means of instruction and persuasion;" the other, that "cases of conscience, when they exceed their bounds, and grow to be matter of faction, lose their nature; and that sovereign princes ought distinctly to punish their practices and contempt, though coloured with the pretence of conscience and religion." Bacon has repeated the same words, as well as some more of Walsingham's letter, in his observations on the libel on Lord Burleigh, i. 522. And Mr. Southey (Book of the Church, ii. 291) seems to adopt them as his own.

Upon this it may be observed; first, that they take for granted the fundamental sophism of religious intolerance, namely, that the civil magistrate, or the church he supports, is not only in the right, but so clearly in the right, that no honest man, if he takes time and pains to consider the subject, can help acknowledging it: secondly, that, according to the principles of Christianity as admitted on each side, it does not rest in an esoteric persuasion, but requires an exterior profession, evidenced both by social worship, and by certain positive rites; and that the marks of this profession, according to the form best adapted to their respective ways of thinking, were as incumbent upon the catholic and puritan, as they had been upon the primitive church: nor were they more chargeable with faction, or with exceeding the bounds of conscience, when they persisted in the use of them, notwithstanding any prohibitory statute, than the early Christians.

The generality of statesmen, and churchmen themselves not unfrequently, have argued upon the principles of what, in the seventeenth century, was called Hobbism, towards which the Erastian system, which is that of the church of England, though excellent in some points of view, had a tendency to gravitate; namely, that civil and religious allegiance are so necessarily connected, that it is the subject's duty to follow the dictates of the magistrate in both alike. And this received some countenance from the false and mischievous position of Hooker, that the church and commonwealth are but different denominations of the same society. Warburton has sufficiently exposed the sophistry of this theory; though I do not think him equally successful in what he substitutes for it.

[369] State Trials, i. 1148.

[370] Id. 1256.

[371] Id. 1403.

[372] Murden, 337. Dr. Lingard has fully established, what indeed no one could reasonably have disputed, Elizabeth's passion for Anjou; and says very truly, "the writers who set all this down to policy cannot have consulted the original documents."—P. 149. It was altogether repugnant to sound policy. Persons, the jesuit, indeed says, in his famous libel, Leicester's Commonwealth, written not long after this time, that it would have been "honourable, convenient, profitable, and needful:" which every honest Englishman would interpret by the rule of contraries. Sussex wrote indeed to the queen in favour of the marriage (Lodge, ii. 177); and Cecil undoubtedly professed to favour it; but this must have been out of obsequiousness to the queen. It was a habit of this minister to set down briefly the arguments on both sides of a question, sometimes in parallel columns, sometimes successively; a method which would seem too formal in our age, but tending to give himself and others a clearer view of the case. He has done this twice in the present instance (Murden, 322, 331); and it is evident that he does not, and cannot, answer his own objections to the match. When the council waited on her with this resolution in favour of the marriage, she spoke sharply to those whom she believed to be against it. Yet the treaty went on for two years; her coquetry in this strange delay breeding her, as Walsingham wrote from Paris, "greater dishonour than I dare commit to paper." Strype's Annals, iii. 2. That she ultimately broke it off, must be ascribed to the suspiciousness and irresolution of her character, which, acting for once conjointly with her good understanding, overcame a disgraceful inclination.

[373] Strype, iii. 480. Stubbe always signed himself Scæva, in these left-handed productions.

[374] Lodge, ii. 412; iii. 49.

[375] Several volumes of the Harleian MSS. illustrate the course of government under Elizabeth. The copious analysis in the catalogue, by Humphrey Wanley and others, which I have in general found accurate, will, for most purposes, be sufficient. See particularly vol. 703. A letter, inter alia, in this (folio 1) from Lord Hunsdon and Walsingham to the sheriff of Sussex, directs him not to assist the creditors of John Ashburnham in molesting him, "till such time as our determination touching the premises shall be known," Ashburnham being to attend the council to prefer his complaint. See also vols. 6995, 6996, 6997, and many others. The Lansdowne catalogue will furnish other evidences.

[376] Anderson's Reports, i. 297. It may be found also in the Biographia Britannica, and the Biographical Dictionary, art. Anderson.

[377] Lansdowne MSS. lviii. 87. The Harleian MS. 6846 is a mere transcript from Anderson's Reports, and consequently of no value. There is another in the same collection, at which I have not looked.

[378] Hume says, "that the queen had taken a dislike to the smell of this useful plant." But this reason, if it existed, would hardly have induced her to prohibit its cultivation throughout the kingdom. The real motive appears in several letters of the Lansdowne collection. By the domestic culture of woad, the customs on its importation were reduced; and this led to a project of levying a sort of excise upon it at home. Catalogue of Lansdowne MSS. xlix. 32-60. The same principle has since caused the prohibition of sowing tobacco.

[379] Camden, 476.

[380] Rymer, xvi. 448.

[381] Many of these proclamations are scattered through Rymer; and the whole have been collected in a volume.

[382] By a proclamation in 1560, butchers killing flesh in Lent are made subject to a specific penalty of £20; which was levied upon one man. Strype's Annals, i. 235. This seems to have been illegal.

[383] Lord Camden in 1766. Hargrave, in preface to "Hale de Jure Coronæ," in Law Tracts, vol. i.

[384] We find an exclusive privilege granted in 1563 to Thomas Cooper, afterwards Bishop of Winchester, to print his Thesaurus, or Latin dictionary for twelve years (Rymer, xv. 620); and to Richard Wright to print his translation of Tacitus during his natural life; any one infringing this privilege to forfeit 40s. for every printed copy. Id. xvi. 97.

[385] Strype's Parker, 221. By the 51st of the queen's injunctions, in 1559, no one might print any book or paper whatsoever unless the same be first licensed by the council or ordinary.

[386] A proclamation, dated February 1589, against seditious and schismatical books and writings, commands all persons who shall have in their custody any such libels against the order and government of the church of England, or the rites and ceremonies used in it, to bring and deliver up the same with convenient speed to their ordinary. Life of Whitgift, Appendix 126. This has probably been one cause of the extreme scarcity of these puritanical pamphlets.

[387] Strype's Grindal, 124, and Append. 43, where a list of these books is given.

[388] Strype'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 favouring the two religions adverse to the church, he permitted nothing to appear that interfered in the least with his own notions. Thus we find him seizing an edition of some works of Hugh Broughton, an eminent Hebrew scholar. This learned divine 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 candour, is a glaring evidence of the advantages of that free enquiry he had sought to suppress. P. 384, 431.

[389] Camden, 449; Strype's Annals, ii. 288. The queen had been told, it seems, of what was done in Wyatt's business, a case not all parallel; though there was no sufficient necessity even in that instance to justify the proceeding by martial law. But bad precedents always beget "progeniem vitiosiorem."

There was a difficulty how to punish Burchell capitally, which probably suggested to the queen this strange expedient. It is said, which is full as strange, that the bishops were about to pass sentence on him for heresy, in having asserted that a papist might lawfully be killed. He put an end, however, to this dilemma, by cleaving the skull of one of the keepers in the Tower, and was hanged in a common way.

[390] Strype's Annals, iii. 570; Life of Whitgift, Append. 126.

[391] Rymer, xvi. 279.

[392] Carte, 693, from Stowe.

[393] Strype's Annals, i. 535.

[394] Strype, iii. Append. 147. This was exacted in order to raise men for service in the Low Countries. But the beneficed clergy were always bound to furnish horses and armour, or their value, for the defence of the kingdom in peril of invasion or rebellion. An instance of their being called on for such a contingent occurred in 1569. Strype's Parker, 273; and Rymer will supply many others in earlier times.

The magistrates of Cheshire and Lancashire had imposed a charge of eightpence a week on each parish of those counties for the maintenance of recusants in custody. This, though very nearly 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, directing the charge to be taken off. It is only worth noticing, as it illustrates the jealousy which the people entertained of anything approaching to taxation without consent of parliament, and the caution of the ministry in not pushing any exertion of prerogative farther than would readily be endured.

[395] Murden, 632. That some degree of intimidation was occasionally made use of, may be inferred from the following letter of Sir Henry Cholmley to the mayor and aldermen of Chester, in 1597. He informs them of letters received by him from the 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 (Tarporly) on Friday next the 23rd December, or else that you and every of you give me meeting there, the said day and place, to enter severally into bond to her highness for your appearance forthwith before their lordships, to show cause wherefore you and every of you should refuse to pay her majesty loan according to her highness several privy-seals by you received, letting you wit that I am now directed by other letters from their 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 heartily to consider of as the last direction of the service, I heartily bid you farewell." Harl. MSS. 2173, 10.

[396] Strype, ii. 102. In Haynes, p. 518, is the form of a circular letter or privy-seal, as it was called from passing that office, sent in 1569, a year of great difficulty, to those of whose aid the queen stood in need. It contains a promise of repayment at the expiration of twelve months. A similar application was made through the lord-lieutenants in their several counties, to the wealthy and well disposed, in 1588, immediately after the destruction of the Armada. The loans are asked only for the space of a year, as "heretofore has been yielded unto her majesty in times of less need and danger, and yet always fully repaid." Strype, iii. 535. Large sums of money are said to have been demanded of the citizens of London in 1599. Carte, 675. 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 Queen 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 statue of 2nd Richard III. was pressed, yet it went so far, that by commission and direction money was gathered in every inn of court; and I myself for my part paid twenty shillings. But when the queen was informed by her judges that this kind of proceeding was against law, she gave directions to pay all such sums as were collected back; and so I (as all the rest of our house, and as I think of other houses too) had my twenty shillings repaid me again; and privy counsellors were sent down to all parts, to tell them that it was for the defence of the realm, and it should be repaid them again." State Trials, iii. 1199.

[397] Haynes, 518. Hume has exaggerated this, like other facts, in his very able, but partial, sketch of the constitution in Elizabeth's reign.

[398] The following are a few specimens, copied from the Lansdowne catalogue. "Sir Antony Cooke to Sir William Cecil, that he would move Mr. Peters to recommend Mr. Edward Stanhope to a certain young lady of Mr. P.'s acquaintance, whom Mr. Stanhope was desirous to marry."—Jan. 25, 1563, lxxi. 73. "Sir John Mason to Sir William Cecil, that he fears his young landlord, Spelman, has intentions of turning him out of his house, which 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 words make him so reasonable an offer as I trust he will not disallow.'"—lxviii. 20. "Lady Zouch to Lord Burleigh, for his friendly interposition to reconcile Lord Zouch her husband, who had forsaken her through jealousy."—1593, lxxiv. 72.

[399] Biographia Britannica, art. Cecil.

[400] Townsend's manuscript has been separately published; but I do not find that D'Ewes has omitted anything of consequence.

[401] D'Ewes, p. 82; Strype, i. 258, from which latter passage it seems that Cecil was rather adverse to the proposal.

[402] D'Ewes, p. 85. The speech which Hume, on D'Ewes's authority, has put into the queen's mouth at the end of this session, is but an imperfect copy or abridgment of one which she made in 1566; as D'Ewes himself afterwards confesses. Her real answer to the speaker in 1563 is in Harrington's Nugæ Antiquæ, vol. i. p. 80.

[403] Camden, p. 400.

[404] The courtiers told the house, that the queen intended to marry in order to divert them from their request that they would name her successor. Strype, vol. i. p. 494.

[405] D'Ewes, p. 128.

[406] Id. p. 116; Journals, 8th Oct., 25th Nov., 2nd Jan.

[407] D'Ewes, p. 141.

[408] D'Ewes, 156, etc. There is no mention of Strickland's business in the journal.

[409] Something of this sort seems to have occurred in the session of 1566, as may be inferred from the lord keeper's reproof to the speaker for calling her majesty's letters patent in question. Id. 115.

[410] Id. 158; Journals, 7 Apr.

[411] Journals, 9 and 10 Apr.

[412] D'Ewes, 159.

[413] D'Ewes, 151.

[414] Bell, I suppose, had reconciled himself to the court, which would have approved no speaker chosen without its recommendation. There was always an understanding between this servant of the house and the government. Proofs and presumptions of this are not unfrequent. In Strype's Annals, vol. iv. p. 124, we find instructions for the speaker's speech in 1592, drawn up by Lord Burleigh, as might very likely be the case on other occasions.

[415] D'Ewes, 219.

[416] Id., 213, 214.

[417] D'Ewes, 236.

[418] D'Ewes, 260.

[419] Id. 282.

[420] D'Ewes, 410.

[421] P. 438. Townsend calls this gentleman Davenport, which no doubt was his true name.

[422] D'Ewes, 433.

[423] Id. 440 et post.

[424] Id. 470.

[425] D'Ewes, 474; Townsend, 60.

[426] Id. 62.

[427] See the letter in Lodge's Illustrations, vol. iii. 34. Townsend says he was committed to Sir John Fortescue's keeping, a gentler sort of imprisonment.

[428] D'Ewes, 470.

[429] Birch's Memoirs of Elisabeth, i. 96.

[430] Strype has published, from Lord Burleigh's manuscripts, a speech made in the parliament of 1589 against the subsidy then proposed. Annals, vol. iii. Append. 238. Not a word about this occurs in D'Ewes's Journal; and I mention it as an additional proof how little we can rely on negative inferences as to proceedings in parliament at this period.

[431] D'Ewes, 547.

[432] Their joy and gratitude were rather premature, for her majesty did not revoke all of them; as appears by Rymer, xvi. 540, and Carte, iii. 712. A list of them, dated May 1603 (Lodge, iii. 159), seems to imply that they were still existing.

[433] D'Ewes, 619, 644, etc.

The speeches made in this parliament are reported more fully than usual by Heywood Townsend, from whose journal those of most importance have been transcribed by D'Ewes. Hume has given considerable extracts, for the sole purpose of inferring from this very debate on monopolies, that the royal prerogative was, according to the opinion of the House of Commons itself, hardly subject to any kind of restraint. But the passages he selects are so unfairly taken (some of them being the mere language of courtiers, others separated from the context, in order to distort their meaning), that no one who compares them with the original can acquit him of extreme prejudice. The adulatory strain in which it was usual to speak of the sovereign often covered a strong disposition to keep down his authority. Thus when a Mr. Davies says in this debate: "God hath given that power to absolute princes, which he attributes to himself—Dixi quod dii estis;" it would have been seen, if Hume had quoted the following sentence, that he infers from hence, that justice being a divine attribute, the king can do nothing that is unjust, and consequently cannot grant licences to the injury of his subjects. Strong language was no doubt used in respect of the prerogative. But it is erroneous to assert, with Hume, that it came equally from the courtiers and country gentlemen, and was admitted by both. It will chiefly be found in the speeches of Secretary Cecil, the official defender of prerogative, and of some lawyers. Hume, after quoting an extravagant speech ascribed to Sergeant Heyle, that "all we have is her majesty's, and she may lawfully at any time take it from us; yea, she hath as much right to all our lands and goods as to any revenue of her crown," observes that Heyle was an eminent lawyer, a man of character. That Heyle was high in his profession is beyond doubt; but in that age, as has since, though from the change of times less grossly, continued to be the case, the most distinguished lawyers notoriously considered the court and country as plaintiff and defendant in a great suit, and themselves as their retained advocates. It is not likely, however, that Heyle should have used the exact words imputed to him. He made, no doubt, a strong speech for prerogative, but so grossly to transcend all limits of truth and decency seems even beyond a lawyer seeking office. Townsend and D'Ewes write with a sort of sarcastic humour, which is not always to be taken according to the letter. D'Ewes, 433; Townsend, 205.

Hume proceeds to tell us, that it was asserted this session, that the speaker might either admit or reject bills in the house; and remarks, that the very proposal of it is a proof at what a low ebb liberty was at that time in England. There cannot be a more complete mistake. No such assertion was made; but a member suggested that the speaker might, as the consuls in the Roman senate used, appoint the order in which bills should be read; at which speech, it is added, some hissed. D'Ewes, 677. The present regularity of parliamentary forms, so justly valued by the house, was yet unknown; and the members called confusedly for the business they wished to have brought forward.

[434] Parl. Hist. 958. In the session of 1571, a committee was appointed to confer with the attorney and solicitor-general about the return of burgesses from nine places which had not been presented in the last parliament. But in the end it was "ordered, by Mr. Attorney's assent, that the burgesses shall remain according to their returns; for that the validity of the charters of their towns is elsewhere to be examined, if cause be." D'Ewes p. 156, 159.

D'Ewes observes that it was very common in former times, in order to avoid the charge of paying wages to their burgesses, that a borough which had fallen into poverty or decay, either got licence of the sovereign for the time being to be discharged from electing members, or discontinued it of themselves; but that of late the members for the most part bearing their own charges, many of those towns which had thus discontinued their privilege, renewed it both in Elizabeth's reign and that of James. P. 80. This could only have been, it is hardly necessary to say, by obtaining writs out of chancery for that purpose. As to the payment of wages, the words of D'Ewes intimate that it was not entirely disused. In the session of 1586, the borough of Grantham complained that Arthur Hall (whose name now appears for the last time) had sued them for wages due to him as their representative in the preceding parliament; alleging that, as well by reason of his negligent attendance and some other offences by him committed in some of its sessions, as of his promise not to require any such wages, they ought not to be charged; and a committee having been appointed to enquire into this, reported that they had requested Mr. Hall to remit his claim for wages, which he had freely done. D'Ewes, p. 417.

[435] Strype mentions letters from the council to Mildmay, Sheriff of Essex, in 1559, about the choice of knights. Annals, v. i. p. 32. And other instances of interference may be found in the Lansdowne and Harleian collections. Thus we read that a Mr. Copley used to nominate burgesses for Gatton, "for that there were no burgesses in the borough." The present proprietor being a minor in custody of the court of wards, Lord Burleigh directs the Sheriff of Surrey to make no return without instructions from himself; and afterwards orders him to cancel the name of Francis Bacon in his indenture, he being returned for another place, and to substitute Edward Brown. Harl. MSS. DCCIII. 16.

I will introduce in this place, though not belonging to the present reign, a proof that Henry VIII. did not trust altogether to the intimidating effects of his despotism for the obedience of parliament, and that his ministers looked to the management of elections, as their successors have always done. Sir Robert Sadler writes to some one, whose name does not appear, to inform him that the Duke of Norfolk had spoken to the king, who was well content he should be a burgess of Oxford; and that he should "order himself in the said room according to such instructions as the said Duke of Norfolk should give him from the king:" if he is not elected at Oxford, the writer will recommend him to some of "my lord's towns of his bishopric of Winchester." Cotton MSS. Cleopatra E. iv. 178. Thus we see that the practice of our government has always been alike; and we may add the same of the nobility, who interfered with elections full as continually, and far more openly, than in modern times. The difference is, that a secretary of the treasury, or peer's agent, does that with some precaution of secrecy, which the council board, or the peer himself, under the Tudors, did by express letters to the returning officer; and that the operating motive is the prospect of a good place in the excise or customs for compliance, rather than that of lying some months in the Fleet for disobedience.

A very late writer has asserted, as an undoubted fact, which "historic truth requires to be mentioned," that for the first parliament of Elizabeth, "five candidates were nominated by the court for each borough, and three for each county; and by the authority of the sheriffs, the members were chosen from among the candidates." Butler's Book of the Roman Catholic Church, p. 225. I never met with any tolerable authority for this, and believe it to be a mere fabrication; not certainly of Mr. Butler, who is utterly incapable of a wilful deviation from truth, but of some of those whom he too implicitly follows.

[436] D'Ewes, 168.

[437] Journals, p. 88.

[438] Holingshed, vol. iii. p. 824 (4to edit.); Hatsell's Precedents, vol. i. p. 53. Mr. Hatsell inclines too much, in my opinion, to depreciate the authority of this case, imagining that it was rather as the king's servant, than as a member of the house, that Ferrers was delivered. But, though Henry artfully endeavours to rest it chiefly on this ground, it appears to me that the Commons claim the privilege as belonging to themselves, without the least reference to this circumstance. If they did not always assert it afterwards, this negative presumption is very weak, when we consider how common it was to overlook or recede from precedents, before the constitution had been reduced into a system. Carte, vol. iii. p. 164, endeavours to discredit the case of Ferrers as an absolute fable, and certainly points out some inaccuracy as to dates; but it is highly improbable that the whole should be an invention. He returns to the subject afterwards (p. 541), and, with a folly almost inconceivable even in a Jacobite, supposes the puritans to have fabricated the tale, and prevailed on Holingshed to insert it in his history.

[439] Journals, Feb. 22nd and 27th.

[440] Hatsell, 73, 92, 119.

[441] Id. 90.

[442] Id. 97.

[443] Id. 96.

[444] Id. 119.

[445] Journals, 5th and 7th March 1557-8.

[446] D'Ewes, 291; Hatsell, 93. The latter says, "I cannot but suspect, that there was some private history in this affair, some particular offence against the queen, with which we are unacquainted." But I believe the explanation I have given will be thought more to the purpose; and so far from having offended the queen, Hall seems to have had a patron in Lord Burleigh, to whom he wrote many letters, complaining of the Commons, which are extant in the Lansdowne collection. He seems to have been a man of eccentric and unpopular character, and had already incurred the displeasure of the Commons in the session of 1572, when he was ordered to be warned by the serjeant to appear at the bar "to answer for sundry lewd speeches used as well in the house as elsewhere." Another entry records him to have been "charged with seven several articles, but having humbly submitted himself to the house, and confessed his folly, to have been upon the question released with a good exhortation from the speaker." D'Ewes, 207, 212.

[447] Hatsell, 80.

[448] D'Ewes, 341.

[449] D'Ewes, 366. This case, though of considerable importance, is overlooked by Hatsell, who speaks of that of Hall as the only one before the long parliament, wherein the Commons have punished the authors of libels derogatory to their privileges. P. 127. Though he speaks only of libels, certainly the punishment of words spoken is at least as strong an exercise of power.

[450] Journals, 1 Mary, p. 27.

[451] D'Ewes, 393, etc.

[452] Id. 430.

[453] Id. 539.

[454] Id. 596.

[455] D'Ewes, 486. Another trifling circumstance may be mentioned to show the rising spirit of the age. In the session of 1601, Sir Robert Cecil having proposed that the speaker should attend the lord keeper about some matter, Sir Edward Hobby took up the word in strong language, as derogatory to their dignity; and the secretary, who knew, as later ministers have done, that the Commons are never so unmanageable as on such points of honour, made a proper apology. Id. 627.

[456] Birch's Memoirs, i. 97, 120, 152, etc., ii. 129; Bacon's Works, vol. ii. p. 416, 435.

[457] Raleigh's Dedication of his Prerogative of Parliaments to James I. contains terrible things. "The bonds of subjects to their kings should always be wrought out of iron, the bonds of kings unto subjects but with cobwebs."—"All binding of a king by law upon the advantage of his necessity, makes the breach itself lawful in a king; his charters and all other instruments being no other than the surviving witnesses of his unconstrained will." The object, however, of the book, is to persuade the king to call a parliament (about 1613), and we are not to suppose that Raleigh meant what he said. He was never very scrupulous about truth. In another of his tracts, entitled The Prince; or, Thesaurus of State, he holds, though not without flattery towards James, a more reasonable language. "In every just state some part of the government is or ought to be impartial to the people; as in a kingdom, a voice or suffrage in making laws: and sometimes also in levying of arms, if the charge be great and the prince be forced to borrow help of his subjects, the matter rightly may be propounded to a parliament, that the tax may seem to have proceeded from themselves.

[458] Le Contre Un of La Boetie, the friend of Montaigne, is, as the title intimates, a vehement philippic against monarchy. It is subjoined to some editions of the latter's essays. The Franco-Gallia of Hottoman contains little more than extracts from Fredegarius, Aimoin, and other ancient writers, to prove the elective character and general freedom of the monarchy under the two first races. This made a considerable impression at the time, though the passages in question have been so often quoted since, that we are almost surprised to find the book so devoid of novelty. Hubert Languet's Vindicæ contra Tyrannos, published under the name of Junius Brutus, is a more argumentative discussion of the rights of governors and their subjects.

[459] D'Ewes, p. 115.

I have already adverted to Gardiner's resolute assertion of the law against the prince's single will, as a proof that, in spite of Hume's preposterous insinuations to the contrary, the English monarchy was known and acknowledged to be limited. Another testimony may be adduced from the words of a great protestant churchman. Archbishop Parker, writing to Cecil to justify himself for not allowing the queen's right to grant some dispensation in a case of marriage, says, "he would not dispute of the queen's absolute power, or prerogative royal, how far her highness might go in following the Roman authority; but he yet doubted, that if any dispensation should pass from her authority, to any subject, not avouchable by laws of her realm, made and established by herself and her three estates, whether that subject be in surety at all times afterwards: specially seeing there be parliament laws, precisely determining cases of dispensations." Strype's Parker, 177.

Perhaps, however, there is no more decisive testimony to the established principles of limited monarchy in the age of Elizabeth, than a circumstance mentioned in Anderson's Reports, 154. The queen had granted to Mr. Richard Cavendish an office for issuing certain writs, and directed the judges to admit him to it, which they neglected (that is, did not think fit) to do. Cavendish hereupon obtained a letter from her majesty, expressing her surprise that he was not admitted according to her grant, and commanding them to sequester the profits of the office for his use, or that of any other to whom these might appear to be due, as soon as the controversy respecting the execution of the said office should be decided. It is plain that some other persons were in possession of these profits, or claimed a right therein. The judges conceived that they could not lawfully act according to the said letter and command, because through such a sequestration of the emoluments, those who claimed a right to issue the writs would be disseised of their freehold. The queen, informed that they did not obey the letter, sent another, under the sign manual, in more positive language, ending in these words: "We look that you and every of you should dutifully fulfil our commandment herein, and these our letters shall be your warrant."—21st April 1587. This letter was delivered to the justices in the presence of the chancellor and Lord Leicester, who were commissioned to hear their answer, telling them also, that the queen had granted the patent on account of her great desire to provide for Cavendish. The judges took a little time to consult what should be said; and, returning to the Lords, answered that they desired in all respects humbly to obey her majesty; but, as this case is, could not do so without perjury, which they well knew the queen would not require, and so went away. Their answer was reported to the queen, who ordered the chancellor, chief justice of the king's bench, and master of the rolls, to hear the judges' reasons; and the queen's council were ordered to attend, when the queen's serjeant began to show the queen's prerogative to grant the issuing of writs, and showed precedents. The judges protested in answer, that they had every wish to assist her majesty to all her rights, but said that this manner of proceeding was out of course of justice; and gave their reasons, that the right of issuing these writs and fees incident to it was in the prothonotaries and others, who claimed it by freehold; who ought to be made to answer, and not the judges, being more interested therein. This was certainly a little feeble, but they soon recovered themselves. They were then charged with having neglected to obey these letters of the queen; which they confessed, but said that this was no offence or contempt towards her majesty, because the command was against the law of the land; in which case, they said, no one is bound to obey such command. When farther pressed, they said the queen herself was sworn to keep the laws as well as they; and that they could not obey this command without going against the laws directly and plainly, against their oaths, and to the offence of God, her majesty, the country and commonwealth in which they were born and live: so that if the fear of God were gone from them, yet the examples of others, and the punishment of those who had formerly transgressed the laws, would remind them and keep them from such an offence. Then they cited the Spensers, and Thorp, a judge under Edward III., and precedents of Richard II.'s time, and of Empson, and the statutes from Magna Charta, which show what a crime it is for judges to infringe the laws of the land; and thus, since the queen and the judges were sworn to observe them, they said that they would not act as was commanded in these letters.

All this was repeated to her majesty for her good allowance of the said reasons, and which her majesty, as I have heard, says the reporter, took well; but nothing farther was heard of the business.—Such was the law and the government, which Mr. Hume has compared to that of Turkey! It is almost certain, that neither James nor Charles would have made so discreet a sacrifice of their pride and arbitrary temper; and in this self-command lay the great superiority of Elizabeth's policy.

[460] Harborowe of True and Faithful Subjects, 1559. Most of this passage is quoted by Dr. M'Crie, in his Life of Knox, vol. i. note BB, to whom I am indebted for pointing it out.

[461] Commonwealth of England, b. ii. c. 3.

[462] Bodin says the English ambassador, M. Dail (Mr. Dale), had assured him, not only that the king may assent to or refuse a bill as he pleases, but that il ne laisse pas d'en ordonner à son plaisir, et centre la volonté des estats, comme on a vu Henry VIII. avoir toujours usé de sa puissance souveraine. He admitted, however, that taxes could only be imposed in parliament. De la République, l. i. c. 8.

[463] The misrepresentations of Hume as to the English constitution under Elizabeth, and the general administration of her reign, have been exposed since the present chapter was written, by Mr. Brodie, in his History of the British Empire from the Accession of Charles I. to the Restoration, vol. i. c. 3. In some respects, Mr. B. seems to have gone too far in an opposite system, and to represent the practical course of government as less arbitrary than I can admit it to have been.

[464] Father Persons, a subtle and lying Jesuit, published in 1594, under the name of Doleman, a treatise entitled Conference about the next Succession to the Crown of England. This book is dedicated to Lord Essex, whether from any hopes entertained of him, or as was then supposed, in order to injure his fame and his credit with the queen. Sidney Papers, i. 357; Birch's Memoirs, i. 313. It is written with much art, to show the extreme uncertainty of the succession, and to perplex men's minds by multiplying the number of competitors. This, however, is but the second part of his Conference, the aim of the first being to prove the right of commonwealths to depose sovereigns, much more to exclude the right heir, especially for want of true religion. "I affirm and hold," he says, "that for any man to give his help, consent, or assistance towards the making of a king whom he judgeth or believeth to be faulty in religion, and consequently would advance either no religion, or the wrong, if he were in authority, is a most grievous and damnable sin to him that doth it, of what side soever the truth be, or how good or bad soever the party be that is preferred."—P. 216. He pretends to have found very few who favour the King of Scots' title; an assertion by which we may appreciate his veracity. The protestant party, he tells us, was wont to favour the house of Hertford, but of late have gone more towards Arabella, whose claim the Lord Burleigh is supposed to countenance. P. 241. The drift of the whole is to recommend the infanta, by means of perverted history and bad law, yet ingeniously contrived to ensnare ignorant persons. In his former and more celebrated treatise, Leicester's Commonwealth, though he harps much on the embarrassments attending the succession, Persons argues with all his power in favour of the Scottish title, Mary being still alive, and James's return to the faith not desperate. Both these works are full of the mendacity generally and justly ascribed to his order; yet they are worthy to be read by any one who is curious about the secret politics of the queen's reign.

Philip II. held out assurances, that if the English would aid him in dethroning Elizabeth, a free parliament should elect any catholic sovereign at their pleasure, not doubting that their choice would fall on the infanta. He promised also to enlarge the privileges of the people, to give the merchants a free trade to the Indies, with many other flattering inducements. Birch's Memoirs, ii. 308. But most of the catholic gentry, it is just to observe, would never concur in the invasion of the kingdom by foreigners, preferring the elevation of Arabella, according to the pope's project. This difference of opinion gave rise, among other causes, to the violent dissensions of that party in the latter years of Elizabeth's reign; dissensions that began soon after the death of Mary, in favour of whom they were all united, though they could never afterwards agree on any project for the succession. Winwood's Memorials, i. 57; Lettres du Cardinal d'Ossat, ii. 501.

For the life and character of the famous Father Persons, or Parsons, above mentioned, see Dodd's Church History, the Biographia Britannica, or Miss Aikin's James I., i. 360. Mr. Butler is too favourably inclined towards a man without patriotism or veracity. Dodd plainly thinks worse of him than he dares speak.

[465] D'Ossat, ubi suprà. Clement had, some years before, indulged the idle hope that France and Spain might unite to conquer England, and either bestow the kingdom on some catholic prince or divide it between themselves, as Louis XII. and Ferdinand had done with Naples in 1501; an example not very inviting to the French. D'Ossat, Henry's minister at Rome, pointed out the difficulties of such an enterprise, England being the greatest naval power in the world, and the people warlike. The pope only replied, that the kingdom had been once conquered, and might be so again; and especially being governed by an old woman, whom he was ignorant enough to compare with Joanna II. of Naples. Vol. i. 399. Henry IV. would not even encourage the project of setting up Arabella, which he declared to be both unjust and chimerical. Mem. de Sully, l. 15. A knot of protestants were also busy about the interests of Arabella, or suspected of being so; Raleigh, Cobham, Northumberland, though perhaps the last was catholic. Their intrigues occupy a great part of the letters of other intriguers, Cecil and Lord Henry Howard, in the Secret Correspondence with King James, published by Sir David Dalrymple, vol. i. passim.

[466] The explicit declaration on her death-bed ascribed to her by Hume and most other writers, that her kingsman the King of Scots should succeed her, is not confirmed by Carey, who was there at the time. "She was speechless when the council proposed the King of Scots to succeed her, but put her hand to her head as if in token of approbation." E. of Monmouth's Memoirs, p. 176. But her uniform conduct shows her intentions. See, however, D'Israeli's Curiosities of Literature, iii. 107.

It is impossible to justify Elizabeth's conduct towards James in his own kingdom. What is best to be said for it is, that his indiscretion, his suspicious intrigues at Rome and Madrid, the dangerous influence of his favourites, and the evident purpose of the court of Spain to make him its tool, rendered it necessary to keep a very strict watch over his proceedings. If she excited the peers and presbyters of Scotland against their king, he was not behind her in some of the last years of her reign. It appears by a letter from the Earl of Mar, in Dalrymple's Secret Correspondence, p. 2, that James had hopes of a rebellion in England in 1601, which he would have had no scruple in abetting. And a letter from him to Tyrone, in the Lansdowne MSS. lxxxiv. 36, dated 22nd Dec. 1597, when the latter was at least preparing for rebellion, though rather cautious, is full of expressions of favour, and of promises to receive his assistance thankfully at the queen's death. This letter being found in the collection once belonging to Sir Michael Hicks, must have been in Lord Burleigh's, and probably in Elizabeth's hands; it would not make her less inclined to instigate conspiracies across the Tweed. The letter is not an original, and may have been communicated by some one about the King of Scots in the pay of England.

[467] See Burnet, vol. i, Appendix 267, for Secretary Lethington's letter to Cecil, where he tells a circumstantial story so positively, and so open, if false, to a contradiction it never received, that those who lay too much stress on this very equivocal species of presumption would, if the will had perished, have reckoned its forgery beyond question. The king's death approaching, he asserts, "some as well known to you as to me caused William Clarke, sometimes servant to Thomas Heneage, to sign the supposed will with a stamp, for otherwise signed it was never;" for which he appeals to an attestation of the late Lord Paget in parliament, and requests the depositions of several persons now living to be taken. He proceeds to refer him "to the original will surmised to be signed with the king's own hand, that thereby it may most clearly and evidently appear by some differences, how the same was not signed with the king's hand, but stamped as aforesaid. And albeit it is used both as an argument and calumniation against my sovereign by some, that the said original hath been embezzled in Queen Mary's time, I trust God will and hath reserved the same to be an instrument to relieve [prove] the truth, and to confound false surmises, that thereby the right may take place, notwithstanding the many exemplifications and transcripts, which being sealed with the great seal, do run abroad in England." Lesley, Bishop of Ross, repeats the same story with some additions. Bedford's Hereditary Right, p. 197. A treatise of Hales, for which he suffered imprisonment, in defence of the Suffolk title under the will, of which there is a manuscript in the British Museum, Harl. MSS. 537, and which is also printed in the appendix to the book last quoted, leads me to conjecture that the original will had been mislaid or rather concealed at that time. For he certainly argues on the supposition that it was not forthcoming, and had not himself seen it; but "he has been informed that the king's name is evidently written with a pen, though some of the strokes are unseen, as if drawn by a weak and trembling hand." Everyone who has seen the will must bear witness to the correctness of this information. The reappearance of this very remarkable instrument was, as I conceive, after the Revolution; for Collier mentions that he had heard it was in existence; and it is also described in a note to the Acta Regia.

[468] It is right to mention, that some difference of opinion exists as to the genuineness of Henry's signature. But as it is attested by many witnesses, and cannot be proved a forgery, the legal presumption turns much in its favour.

[469] Bedford's (Harbin's) Hereditary Right Asserted, p. 204.

[470] A manuscript in the Cottonian library, Faustina A. xi., written about 1562 in a very hostile spirit, endeavours to prove from the want of testimony, and from some variances in their depositions (not very material ones), that their allegations of matrimony could not be admitted, and that they had incurred an ecclesiastical censure for fornication. But another, which I have also found in the Museum, Harl. MSS. 6286, contains the whole proceedings and evidence, from which I have drawn the conclusion in the text. Their ignorance of the clergyman who performed the ceremony is not perhaps very extraordinary; he seems to have been one of those vagabond ecclesiastics, who, till the marriage act of 1752, were always ready to do that service for a fee.

[471] "Hereupon I shall add, what I have heard related from persons of great credit, which is, that the validity of this marriage was afterwards brought to a trial at the common law; when the minister who married them being present, and other circumstances agreeing, the jury (whereof John Digby of Coleshill, in com. War. esquire, was the foreman) found it a good marriage." Baronage of England, part ii. 369. Mr. Luders doubts the accuracy of Dugdale's story; and I think it not unlikely that it is a confused account of what happened in the court of wards.

[472] I derive this fact from a Cotton MS. Vitellius C. xvi. 412, etc.; but the volume is much burned, and the papers confused with others relative to Lord Essex's divorce. See as to the same suit, or rather perhaps that mentioned in the next note, Birch's Negotiations, p. 219, or Aikin's James I. i. 225.

[473] "The same day a great cause between the Lord Beauchamp and Monteagle was heard in the court of wards, the main point whereof was to prove the lawfulness of E. of Hertford's marriage. The court sat until five of the clock in the afternoon, and the jury had a week's respite for the delivery of their verdict." Letter of Sir E. Hoby to Sir T. Edmonds, Feb. 10, 1606. "For my lord of Hertford's cause, when the verdict was ready to be given up, Mr. Attorney interposed himself for the king, and said that the land that they both strove for was the king's, and until his title were decided, the jury ought not to proceed; not doubting but the king will be gracious to both lords. But thereby both land and legitimation remain undecided." The same to the same March 7. Sloane MSS. 4176.

[474] Dugdale's Baronage; Luders' Essay on the Right of Succession to the Crown in the Reign of Elizabeth. This ingenious author is, I believe, the first who has taken the strong position as to the want of legal title to the house of Stuart which I have endeavoured to support. In the entertaining letters of Joseph Mede on the news of the day (Harl. MSS. 389), it is said that the king had thoughts of declaring Hertford's issue by Lady Catherine Grey illegitimate in the parliament of 1621, and that Lord Southampton's commitment was for having searched for proofs of their marriage. June 30, 1622.

[475] Luders, ubi suprà.

[476] The representative of the title of Mary Brandon, Duchess of Suffolk, that is, the person on whom the claim has descended, according to the rules which determine the succession of the crown, on the supposition that Hertford was duly married to Catherine Grey, is the present Duchess of Buckingham; upon the contrary supposition, the Marquis of Stafford. This is, of course, if we may take for granted the accuracy of common books of genealogy. I have not adverted to one objection which some urged at the time, as we find by Persons's treatises, Leicester's Commonwealth, and the Conference, to the legitimacy of the Seymours. Catherine Grey had been betrothed, or perhaps married, to Lord Herbert, son of the Earl of Pembroke, during the brilliant days of her family, at the close of Edward's reign. But on her father's fall Pembroke caused a sentence of divorce to be pronounced, the grounds of which do not appear, but which was probably sufficient in law to warrant her subsequent union with Hertford. No advantage is taken of this in the proceedings, which seems to show that there was no legal bond remaining between the parties. Camden says she was divorced from Lord Herbert, "being so far gone with child, as to be very near her time." But from her youth at the time, and the silence of all other writers, I conclude this to be unworthy of credit.

[477] Bolingbroke is of this opinion; considering the act of recognition as "the æra of hereditary right, and of all those exalted notions concerning the power of prerogative of kings and the sacredness of their persons." Dissertation on Parties, Letter II.

[478] Stat. 1 Jac. c. 1.

[479] This is confirmed by a curious little tract in the British Museum, Sloane MSS. 827, containing a short history of the queen's death, and new king's accession. It affords a good contemporary illustration of the various feelings which influenced men at this crisis, and is written in a dispassionate manner. The author ascribes the loss of Elizabeth's popularity to the impoverishment of the realm, and to the abuses which prevailed. Carte says, "foreigners were shocked on James's arrival at the applause of the populace who had professed to adore the late queen, but in fact she had no huzzas after Essex's execution. She was in four days' time as much forgot as if she had never existed, by all the world, and even by her own servants." Vol. iii. p. 707. This is exaggerated, and what Carte could not know; but there is no doubt that the generality were glad of a change.

[480] Carte, no foe surely to the house of Stuart, says: "By the time he reached London, the admiration of the intelligent world was turned into contempt." On this journey he gave a remarkable proof of his hasty temper and disregard of law, in ordering a pickpocket taken in the fact to be hanged without trial. The historian last quoted thinks fit to say in vindication, that "all felonies committed within the verge of the court are cognizable in the court of the king's household," referring to 33 H. 8, c. i. This act, however, contains no such thing; nor does any court appear to have been held. Though the man's notorious guilt might prevent any open complaint of so illegal a proceeding, it did not fail to excite observation. "I hear our new king," says Sir John Harrington, "has hanged one man before he was tried; it is strangely done: now if the wind bloweth thus, why may not a man be tried before he has offended?" Nugæ Antiquæ, vol. i. p. 180.

Birch and Carte tell us, on the authority of the French ambassador's despatches, that on this journey he expressed a great contempt for women, suffering them to be presented on their knees, and indiscreetly censuring his own wife; that he offended the military men by telling them they might sheathe their swords, since peace was his object; that he showed impatience of the common people who flocked to see him while hunting, driving them away with curses, very unlike the affable manners of the late queen. This is confirmed by Wilson, in Kennet's Complete History, vol. ii. p. 667.

[481] Sully, being sent over to compliment James on his accession, persisted in wearing mourning for Elizabeth, though no one had done so in the king's presence, and he was warned that it would be taken ill; "dans une cour où il sembloit qu'on eût si fort affecté de mettre en oubli cette grande reine qu'on n'y faisoit jamais mention d'elle, et qu'on évitoit même de prononcer son nom." Mém. de Sully, l. 14. James afterwards spoke slightingly to Sully of his predecessor, and said that he had long ruled England through her ministers.

[482] It was subscribed by 825 ministers from twenty-five counties. It states, that neither as factious men desiring a popular party in the church, nor as schismatics aiming at the dissolution of the state ecclesiastical, they humbly desired the redress of some abuses. Their objections were chiefly to the cap and surplice, the cross in baptism, baptism by women, confirmation, the ring in marriage, the reading of the Apocrypha, bowing at the name of Jesus, etc.; to non-residence and incapable ministers, the commendams held by bishops, unnecessary excommunications, and other usual topics. Neal, p. 408; Fuller, part ii. p. 22.

[483] The puritans seem to have flattered themselves that James would favour their sect, on the credit of some strong assertions he had occasionally made of his adherence to the Scots kirk. Some of these were a good while before; but on quitting the kingdom he had declared that he left it in a state which he did not intend to alter. Neal, 406. James, however, was all his life rather a bold liar than a good dissembler. It seems strange that they should not have attended to his Basilicon Doron, printed three years before, though not for general circulation, wherein there is a passage quite decisive of his disposition towards the presbyterians and their scheme of polity. The Millenary Petition indeed did not go so far as to request anything of that kind.

[484] Strype's Whitgift, p. 571; Collier, p. 675; Neal, p. 411; Fuller, part ii. p. 7.; State Trials, vol. ii. p. 69; Phœnix Britannicus, i. 141; Winwood, ii. 13. All these, except the last, are taken from an account of the conference published by Barlow, and probably more favourable to the king and bishops than they deserved. See what Harrington, an eye-witness, says in Nugæ Antiquæ, i. 181, which I would quote as the best evidence of James's behaviour, were the passage quite decent.

[485] Reynolds, the principal disputant on the puritan side, was nearly, if not altogether, the most learned man in England. He was censured by his faction for making a weak defence; but the king's partiality and intemperance plead his apology. He is said to have complained of unfair representation in Barlow's account. Hist. and Ant. of Oxford, ii. 293. James wrote a conceited letter to one Blake, boasting of his own superior logic and learning. Strype's Whitgift, Append. 239.

[486] Rymer, xvi. 565.

[487] Strype's Whitgift, 587. How desirous men not at all connected in faction with the puritans were of amendments in the church, appears by a tract of Bacon, written, as it seems, about the end of 1603, vol. i. p. 387.—He excepts to several matters of ceremony; the cap and surplice, the ring in marriage, the use of organs, the form of absolution, lay-baptism, etc.; and inveighs against the abuse of excommunication, against non-residence and pluralities, the oath ex officio, the sole exercise of ordination and jurisdiction by the bishop, conceiving that the dean and chapter should always assent, etc. And, in his predominant spirit of improvement, asks, "Why the civil state should be purged and restored by good and wholesome laws made every three or four years in parliament assembled, devising remedies as fast as time breedeth mischief; and contrariwise the ecclesiastical state should still continue upon the dregs of time, and receive no alteration now for these forty-five years or more?

[488] Id. ibid.

[489] Neal, 432; Winwood, ii. 36.

[490] See one of the Somers Tracts, vol. ii. p. 144, entitled "Advertisements of a Loyal Subject, drawn from the Observation of the People's Speeches." This appears to have been written before the meeting of parliament. The French ambassadors, Sully and La Boderie, thought most contemptibly of the king. Lingard, vol. ix. p. 107. His own courtiers, as their private letters show, disliked and derided him.

[491] King James's Works, p. 207.

[492] Parl. Hist. i. 967.

[493] Commons' Journals, i. 166.

[494] It appears that some of the more eager patriots were dissatisfied at the concession made by vacating Goodwin's seat, and said they had drawn on themselves the reproach of inconstancy and levity. "But the acclamation of the house was, that it was a testimony of our duty, and no levity." It was thought expedient, however, to save their honour, that Goodwin should send a letter to the speaker expressing his acquiescence. P. 168.

[495] Commons' Journals, 147, etc.; Parl. Hist. 997; Carte, iii. 730, who gives, on this occasion, a review of the earlier cases where the house had entered on matters of election. See also a rather curious letter of Cecil in Winwood's Memorials, ii. 18, where he artfully endeavours to treat the matter as of little importance.

[496] Commons' Journals, page 155, etc.; Parl. Hist. 1028; Carte, 734.

[497] 1 Jac. i. c. 13.

[498] By one of these canons, all persons affirming any of the thirty-nine articles to be erroneous are excommunicated ipso facto; consequently become incapable of being witnesses, of suing for their debts, etc. Neal, 428. But the courts of law disregarded these ipso facto excommunications.

[499] Somers Tracts, ii. 14; Journals, 199, 235, 238; Parl. Hist. 1067. It is here said, that a bill restraining excommunications passed into a law, which does not appear to be true, though James himself had objected to their frequency. I cannot trace such a bill in the journals beyond the committee, nor is it in the statute-book. The fact is, that the king desired the house to confer on the subject with the convocation, which they justly deemed unprecedented, and derogatory to their privileges; but offered to confer with the bishops, as lords of parliament. Journals, 173.

[500] Bacon's Works, i. 624; Journals, 190, 215.

[501] Commons' Journals, 150, etc.

[502] Journals, 246.

[503] Journals, 230.

[504] Parl. Hist. 1030, from Petyt's Jus Parliamentarium, the earliest book, as far as I know, where this important document is preserved. The entry on the Journals, p. 243, contains only the first paragraph. Hume and Carte have been ignorant of it. It is just alluded to by Rapin.

It is remarked that the attendance of members in this session was more frequent than had ever been known, so that fresh seats were required. Journals, 141.

[505] "My faithful 3, such is now my misfortune, as I must be for this time secretary to the devil in answering your letters directed unto him. That the entering now into the matter of the subsidy should be deferred until the council's next meeting with me, I think no ways convenient, especially for three reasons. First, ye see it has bin already longest delayd of anything, and yet yee see the lower house are ever the longer the further from it; and (as in everything that concerns mee) delay of time does never turn them towards mee, but, by the contrary, every hour breedeth a new trick of contradiction amongst them, and every day produces new matter of sedition, so fertile are their brains in ever buttering forth venome. Next, the Parlt. is now so very near an end, as this matter can suffer no longer delay. And thirdly, if this be not granted unto before they receive my answer unto their petition, it needs never to be moved, for the will of man or angel cannot devise a pleasing answer to their proposition, except I should pull the crown not only from my own head, but also from the head of all those that shall succeed unto mee, and lay it down at their feet. And that freedom of uttering my thoughts, which no extremity, strait nor peril of my life could ever bereave mee of in time past, shall now remain with me, as long as the soul shall with the body. And as for the Reservations of the Bill of Tonnage and Poundage, yee of the Upper House must out of your Love and Discretion help it again or otherwise they will in this, as in all things else that concern mee, wrack both me and all my Posterity. Yee may impart this to little 10 and bigg Suffolk. And so Farewell from my Wildernesse, wch I had rather live in (as God shall judge mee) like an Hermite in this Forrest, then be a King over such a People as the pack of Puritans are that over-rules the lower house. J. R."

MS. penes autorem.

I cannot tell who is addressed in this letter by the numeral 3; perhaps the Earl of Dunbar. By 10 we must doubtless understand Salisbury.

[506] Parl. Hist. Journals, 274, 278, etc. In a conference with the Lords on this bill, Mr. Hare, a member, spoke so warmly, as to give their lordships offence, and to incur some reprehension. "You would have thought," says Sir Thomas Hoby, in a manuscript letter in the Museum, Sloane MSS. 4161, "that Hare and Hyde represented two tribunes of the people." But the Commons resented this infringement on their privileges, and after voting that Mr. Hare did not err in his employment in the committee with the Lords, sent a message to inform the other house of their vote, and to request that they "would forbear hereafter any taxations and reprehensions in their conferences." Journals, 20th and 22nd Feb.

[507] Journals, 316.

An acute historical critic doubts whether James aimed at an union of legislatures, though suggested by Bacon. Laing's Hist. of Scotland, iii. 17. It is certain that his own speeches on the subject do not mention this; nor do I know that it was ever distinctly brought forward by the government; yet it is hard to see how the incorporation could have been complete without it. Bacon not only contemplates the formation of a single parliament, but the alterations necessary to give it effect (vol. i. p. 638), suggesting that the previous commission of lords of articles might be adopted for some, though not for all purposes. This of itself was a sufficient justification for the dilatoriness of the English parliament. Nor were the common lawyers who sat in the house much better pleased with Bacon's schemes for remodelling all our laws. See his speech (vol. i. p. 654) for naturalising the ante-nati. In this he asserts the kingdom not to be fully peopled; "the territories of France, Italy, Flanders, and some parts of Germany, do in equal space of ground bear and contain a far greater quantity of people, if they were mustered by the poll;" and even goes on to assert the population to have been more considerable under the heptarchy.

[508] It was held by twelve judges out of fourteen, in Calvin's case, that the post-nati, or Scots born after the king's accession, were natural subjects of the King of England. This is laid down, and irresistibly demonstrated, by Coke, then chief justice, with his abundant legal learning. State Trials, vol. ii. 559.

It may be observed, that the high-flying creed of prerogative mingled itself intimately with this question of naturalisation; which was much argued on the monarchical principle of personal allegiance to the sovereign, as opposed to the half-republican theory that lurked in the contrary proposition. "Allegiance," says Lord Bacon, "is of a greater extent and dimension than laws or kingdoms, and cannot consist by the laws merely, because it began before laws; it continueth after laws, and it is in vigour when laws are suspended and have not had their force." Id. 596. So Lord Coke: "Whatsoever is due by the law or constitution of man may be altered; but natural legiance or obedience of the subject to the sovereign cannot be altered; ergo, natural legiance or obedience to the sovereign is not due by the law or constitution of man."—652.

There are many doubtful positions scattered through the judgment in this famous case. Its surest basis is the long series of precedents, evincing that the natives of Jersey, Guernsey, Calais, and even Normandy and Guienne, while these countries appertained to the kings of England, though not in right of its crown, were never reputed aliens.

[509] The house had lately expelled Sir Christopher Pigott for reflecting on the Scots nation in a speech. Journals, 13th Feb. 1607.

[510] Commons' Journals, 366.

The journals are full of notes of these long discussions about the union in 1604, 1606, 1607, and even 1610. It is easy to perceive a jealousy that the prerogative by some means or other would be the gainer. The very change of name to Great Britain was objected to. One said, we cannot legislate for Great Britain. P. 186. Another, with more astonishing sagacity, feared that the king might succeed, by what the lawyers call remitter, to the prerogatives of the British kings before Julius Cæsar, which would supersede Magna Charta. P. 185.

James took the title of King of Great Britain in the second year of his reign. Lord Bacon drew a well-written proclamation on that occasion. Bacon, i. 621; Rymer, xvi. 603. But it was, not long afterwards, abandoned.

[511] Commons' Journals, p. 370.

[512] P. 377.

[513] Commons' Journals, p. 384.

[514] James entertained the strange notion that the war with Spain ceased by his accession to the throne. By a proclamation dated 23rd June 1603, he permits his subjects to keep such ships as had been captured by them before the 24th April, but orders all taken since to be restored to the owners. Rymer, xvi. 516. He had been used to call the Dutch rebels, and was probably kept with difficulty by Cecil from displaying his partiality still more outrageously. Carte, iii. 714. All the council, except this minister, are said to have been favourable to peace. Id. 938.

[515] Winwood, vol. ii. 100, 152, etc.; Birch's Negotiations of Edmondes. If we may believe Sir Charles Cornwallis, our ambassador at Madrid, "England never lost such an opportunity of winning honour and wealth, as by relinquishing the war." The Spaniards were astonished how peace could have been obtained on such advantageous conditions. Winwood, p. 75.

[516] Bacon, i. 663; Journals, p. 341. Carte says, on the authority of the French ambassador's despatches, that the ministry secretly put forward this petition of the Commons in order to frighten the Spanish court into making compensation to the merchants, wherein they succeeded. iii. 766. This is rendered very improbable by Salisbury's behaviour. It was Carte's mistake to rely too much on the despatches he was permitted to read in the Dépôt des Affaires Etrangères; as if an ambassador were not liable to be deceived by rumours in a country of which he has in general too little knowledge to correct them.

[517] There was a duty on wool, woolfells, and leather, called magna, or sometimes antiqua custuma, which is said in Dyer to have been by prescription, and by the barons in Bates's case to have been imposed by the king's prerogative. As this existed before the 25th Edward I., it is not very material whether it were so imposed, or granted by parliament. During the discussion, however, which took place in 1610, a record was discovered of 3 Edw. I. proving it to have been granted par tous les grauntz del realme, par la prière des comunes des marchants de tout Engleterre. Hale, 146. The prisage of wines, or duty of two tons from every vessel, is considerably more ancient; but how the Crown came by this right does not appear.

[518] Dyer, fol. 165. An argument of the great lawyer Plowden in this case of the queen's increasing the duty on cloths is in the British Museum, Hargrave MSS. 32, and seems, as far as the difficult handwriting permitted me to judge, adverse to the prerogative.

[519] This case I have had the good fortune to discover in one of Mr. Hargrave's MSS. in the Museum, 132, fol. 66. It is in the handwriting of Chief Justice Hyde (temp. Car. I.), who has written in the margin: "This is the report of a case in my lord Dyer's written original, but is not in the printed books." The reader will judge for himself why it was omitted, and why the entry of the former case breaks off so abruptly. "Philip and Mary granted to the town of Southampton that all malmsy wines should be landed at that port under penalty of paying treble custom. Some merchants of Venice having landed wines elsewhere, an information was brought against them in the exchequer (1 Eliz.), and argued several times in the presence of all the judges. Eight were of opinion against the letters patent, among whom Dyer and Catlin, chief justices, as well for the principal matter of restraint in the landing of malmsies at the will and pleasure of the merchants, for that it was against the laws, statutes, and customs of the realm (Magna Charta, c. 30; 9 E. 3; 14 E. 3; 25 E. 3, c. 2; 27 E. 3; 28 E. 3; 2 R. 2, c. 1, and others), as also in the assessment of treble custom, which is merely against the law; also the prohibition above said was held to be private, and not public. But Baron Lake e contra, and Browne J. censuit deliberandum. And after, at an after meeting the same Easter term at Serjeants' Inn, it was resolved as above. And after by parliament (5 Eliz.) the patent was confirmed and affirmed against aliens.

[520] Bacon, i. 521.

[521] Hale's Treatise on the Customs, part 3; in Hargrave's Collection of Law Tracts. See also the preface by Hargrave to Bates's case, in the State Trials, where this most important question is learnedly argued.

[522] He had previously published letters patent, setting a duty of six shillings and eight-pence a pound, in addition to two-pence already payable, on tobacco; intended no doubt to operate as a prohibition of a drug he so much hated. Rymer, xvi. 602.

[523] State Trials, ii. 371.

[524] Hale's Treatise on the Customs. These were perpetual, "to be for ever hereafter paid to the king and his successors, on pain of his displeasure." State Trials, 481.

[525] Journals, 295, 297.

[526] Mr. Hakewill's speech, though long, will repay the diligent reader's trouble, as being a very luminous and masterly statement of this great argument. State Trials, ii. 407. The extreme inferiority of Bacon, who sustained the cause of prerogative, must be apparent to every one. Id. 345. Sir John Davis makes somewhat a better defence; his argument is, that the king may lay an embargo on trade, so as to prevent it entirely, and consequently may annex conditions to it. Id. 399. But to this it was answered, that the king can only lay a temporary embargo, for the sake of some public good, not prohibit foreign trade altogether.

As to the king's prerogative of restraining foreign trade, see extracts from Hale's MS. Treatise de Jure Coronæ, in Hargrave's Preface to Collection of Law Tracts, p. xxx. etc. It seems to have been chiefly as to exportation of corn.

[527] Aikin's Memoirs of James I. i. 350. This speech justly gave offence. "The 21st of this present (May 1610)," says a correspondent of Sir Ralph Winwood, "he made another speech to both the houses, but so little to their satisfaction that I hear it bred generally much discomfort to see our monarchical power and royal prerogative strained so high, and made so transcendent every way, that if the practice should follow the positions, we are not likely to leave to our successors that freedom we received from our forefathers; nor make account of anything we have, longer than they list that govern." Winwood, iii. 175. The traces of this discontent appear in short notes of the debate. Journals, p. 430.

[528] Journals, 431.

[529] Somers Tracts, vol. ii. 159; in the Journals much shorter.

[530] These canons were published in 1690 from a copy belonging to Bishop Overall, with Sancroft's imprimatur. The title-page runs in an odd expression: "Bishop Overall's Convocation-Book concerning the Government of God's Catholic Church and the Kingdoms of the whole World." The second canon is as follows: "If any man shall affirm that men at the first ran up and down in woods and fields, etc., until they were taught by experience the necessity of government; and that therefore they chose some among themselves to order and rule the rest, giving them power and authority so to do; and that consequently all civil power, jurisdiction, and authority, was first derived from the people and disordered multitude, or either is originally still in them, or else is deduced by their consent naturally from them, and is not God's ordinance, originally descending from him and depending upon him, he doth greatly err."—P. 3.

[531] Coke's 2nd Institute, 601; Collier, 688; State Trials, ii. 131. See too an angry letter of Bancroft, written about 1611 (Strype's Life of Whitgift, Append. 227), wherein he inveighs against the common lawyers and the parliament.

[532] Cowell's Interpreter, or Law Dictionary; edit. 1607. These passages are expunged in the later editions of this useful book. What the author says of the writ of prohibition, and the statutes of præmunire, under these words, was very invidious towards the common lawyers, treating such restraints upon the ecclesiastical jurisdiction as necessary in former ages, but now become useless since the annexation of the supremacy of the Crown.

[533] Commons' Journals, 339, and afterwards to 415. The authors of the Parliamentary History say there is no further mention of the business after the conference, overlooking the most important circumstance, the king's proclamation suppressing the book, which yet is mentioned by Rapin and Carte, though the latter makes a false and disingenuous excuse for Cowell. Vol. iii. p. 798. Several passages concerning this affair occur in Winwood's Memorials, to which I refer the curious reader. Vol. iii. p. 125, 129, 131, 136, 137, 145.

[534] Winwood, iii. 123.

[535] Somers Tracts, ii. 162; State Trials, ii. 519.

[536] The court of the council of Wales was erected by statute 34 H. 8, c. 26, for that principality and its marches, with authority to determine such causes and matters as should be assigned to them by the king, "as heretofore hath been accustomed and used;" which implies a previous existence of some such jurisdiction. It was pretended, that the four counties of Hereford, Worcester, Gloucester, and Salop were included within their authority, as marches of Wales. This was controverted in the reign of James by the inhabitants of these counties, and on reference to the twelve judges, according to Lord Coke, it was resolved that they were ancient English shires, and not within the jurisdiction of the council of Wales; "and yet," he subjoins, "the commission was not after reformed in all points as it ought to have been." Fourth Inst. 242. An elaborate argument in defence of the jurisdiction may be found in Bacon, ii. 122. And there are many papers on this subject in Cotton MSS. Vitellius, C. i. The complaints of this enactment had begun in the time of Elizabeth. It was alleged that the four counties had been reduced from a very disorderly state to tranquillity by means of the council's jurisdiction. But, if this were true, it did not furnish a reason for continuing to exclude them from the general privileges of the common law, after the necessity had ceased. The king, however, was determined not to concede this point. Carte, iii. 794.

[537] Commons' Journals for 1610, passim; Lords' Journals, 7th May, et post; Parl. Hist. 1124, et post; Bacon, i. 676; Winwood, iii. 119, et post.

[538] It appears by a letter of the king, in Murden's State Papers, p. 813, that some indecent allusions to himself in the House of Commons had irritated him. "Wherein we have misbehaved ourselves, we know not, nor we can never yet learn; but sure we are, we may say with Bellarmin in his book, that in all the lower houses these seven years past, especially these two last sessions, Ego pungor, ego carpor. Our fame and actions have been tossed like tennis-balls among them, and all that spite and malice durst do to disgrace and inflame us hath been used. To be short, this lower house by their behaviour have perilled and annoyed our health, wounded our reputation, emboldened all ill-natured people, encroached upon many of our privileges, and plagued our people with their delays. It only resteth now, that you labour all you can to do that you think best to the repairing of our estate.

[539] "Your queen," says Lord Thos. Howard, in a letter, "did talk of her subjects' love and good affection, and in good truth she aimed well; our king talketh of his subjects' fear and subjection, and herein I think he doth well too, as long as it holdeth good." Nugæ Antiquæ, i. 395.

[540] The court of James I. was incomparably the most disgraceful scene of profligacy which this country has ever witnessed; equal to that of Charles II. in the laxity of female virtue, and without any sort of parallel in some other respects. Gross drunkenness is imputed even to some of the ladies who acted in the court pageants (Nugæ Antiquæ, i. 348), which Mr. Gifford, who seems absolutely enraptured with this age and its manners, might as well have remembered. Life of Ben Jonson, p. 231, etc. The king's prodigality is notorious.

[541] "It is atheism and blasphemy," he says in a speech made in the star-chamber, 1616, "to dispute what God can do; good Christians content themselves with his will revealed in his word; so it is presumption and high contempt in a subject to dispute what a king can do, or say that a king cannot do this or that." King James's works, p. 557.

It is probable that his familiar conversation was full of this rodomontade, disgusting and contemptible from so wretched a pedant, as well as offensive to the indignant ears of those who knew and valued their liberties. The story of Bishops Neile and Andrews is far too trite for repetition.

[542] Carte, iii. 747; Birch's Life of P. Henry, 405. Rochester, three days after, directed Sir Thomas Edmondes at Paris to commence a negotiation for a marriage between Prince Charles and the second daughter of the late King of France. But the ambassador had more sense of decency, and declined to enter on such an affair at that moment.

[543] Winwood, vol. ii.; Carte, iii. 749; Watson's Hist. of Philip III. Appendix. In some passages of this negotiation Cecil may appear not wholly to have deserved the character I have given him for adhering to Elizabeth's principles of policy. But he was placed in a difficult position, not feeling himself secure of the king's favour, which, notwithstanding his great previous services, that capricious prince, for the first year after his accession, rather sparingly afforded; as appears from the Memoirs of Sully, l. 14, and Nugæ. Antiquæ, i. 345. It may be said that Cecil was as little Spanish, just as Walpole was as little Hanoverian, as the partialities of their respective sovereigns would permit for their own reputation. It is hardly necessary to observe, that James and the kingdom were chiefly indebted to Cecil for the tranquillity that attended the accession of the former to the throne. I will take this opportunity of noticing that the learned and worthy compiler of the catalogue of the Lansdowne manuscripts in the Museum has thought fit not only to charge Sir Michael Hicks with venality, but to add: "It is certain that articles among these papers contribute to justify very strong suspicions, that neither of the secretary's masters [Lord Burleigh and Lord Salisbury] was altogether innocent on the score of corruption." Lands. Cat. vol. xci. p. 45. This is much too strong an accusation to be brought forward without more proof than appears. It is absurd to mention presents of fat bucks to men in power, as bribes; and rather more so to charge a man with being corrupted because an attempt is made to corrupt him, as the catalogue-maker has done in this place. I would not offend this respectable gentleman; but by referring to many of the Lansdowne manuscripts I am enabled to say that he has travelled frequently out of his province, and substituted his conjectures for an analysis or abstract of the document before him.

[544] A great part of Winwood's third volume relates to this business, which, as is well known, attracted a prodigious degree of attention throughout Europe. The question, as Winwood wrote to Salisbury, was "not of the succession of Cleves and Juliers, but whether the house of Austria and the church of Rome, both now on the wane, shall recover their lustre and greatness in these parts of Europe."—P. 378. James wished to have the right referred to his arbitration, and would have decided in favour of the Elector of Brandenburg, the chief protestant competitor.

[545] Winwood, vols. ii. and iii. passim. Birch, that accurate master of this part of English history, has done justice to Salisbury's character. Negotiations of Edmondes, p. 347. Miss Aikin, looking to his want of constitutional principle, is more unfavourable, and perhaps on the whole justly; but what statesman of that age was ready to admit the new creed of parliamentary control over the executive government? Memoirs of James, i. 395.

[546] "On Sunday, before the king's going to Newmarket (which was Sunday last was a se'nnight), my Lord Coke and all the judges of the common law were before his majesty to answer some complaints made by the civil lawyers for the general granting of prohibitions. I heard that the Lord Coke, amongst other offensive speech, should say to his majesty that his highness was defended by his laws. At which saying, with other speech then used by the Lord Coke, his majesty was very much offended, and told him he spoke foolishly, and said that he was not defended by his laws, but by God, and so gave the Lord Coke, in other words, a very sharp reprehension, both for that and other things; and withal told him that Sir Thomas Crompton (judge of the admiralty) was as good a man as Coke; my Lord Coke having then, by way of exception, used some speech against Sir Thomas Crompton. Had not my lord treasurer, most humbly on his knee, used many good words to pacify his majesty and to excuse that which had been spoken, it was thought his highness would have been much more offended. In the conclusion, his majesty, by the means of my lord treasurer, was well pacified, and gave a gracious countenance to all the other judges, and said he would maintain the common law." Lodge, iii. 364. The letter is dated 25th November 1608, which shows how early Coke had begun to give offence by his zeal for the law.

[547] 12 Reports. In his second Institute, p. 57, written a good deal later, he speaks in a very different manner of Bates's case, and declares the judgment of the court of exchequer to be contrary to law.

[548] 12 Reports. There were, however, several proclamations afterwards to forbid building within two miles of London, except on old foundations, and in that case only with brick or stone, under penalty of being proceeded against by the attorney-general in the star-chamber. Rymer, xvii. 107 (1618), 144 (1619), 607 (1624). London nevertheless increased rapidly, which was by means of licences to build; the prohibition being in this, as in many other cases enacted chiefly for the sake of the dispensations.

James made use of proclamations to infringe personal liberty in another respect. He disliked to see any country-gentleman come up to London, where, it must be confessed, if we trust to what those proclamations assert and the memoirs of the age confirm, neither their own behaviour, nor that of their wives and daughters, who took the worst means of repairing the ruin their extravagance had caused, redounded to their honour. The king's comparison of them to ships in a river and in the sea is well known. Still, in a constitutional point of view, we may be startled at proclamations commanding them to return to their country-houses and maintain hospitality, on pain of condign punishment. Rymer, xvi. 517 (1604); xvii. 417 (1622), 632 (1624).

I neglected, in the first chapter, the reference I had made to an important dictum of the judges in the reign of Mary, which is decisive as to the legal character of proclamations even in the midst of the Tudor period. "The king, it is said, may make a proclamation quoad terrorem populi, to put them in fear of his displeasure, but not to impose any fine, forefeiture, or imprisonment; for no proclamation can make a new law, but only confirm and ratify an ancient one." Dalison's Reports, 20.

[549] Winwood, iii. 193.

[550] Carte, iii. 805.

[551] The number of these was intended to be two hundred, but only ninety-three patents were sold in the first six years. Lingard, ix. 203, from Somers Tracts. In the first part of his reign he had availed himself of an old feudal resource, calling on all who held £40 a year in chivalry (whether of the crown or not, as it seems) to receive knighthood, or to pay a composition. Rymer, xvi. 530. The object of this was of course to raise money from those who thought the honour troublesome and expensive, but such as chose to appear could not be refused; and this accounts for his having made many hundred knights in the first year of his reign. Harris's Life of James, 69.

[552] MS. penes autorem.

[553] Carte, iv. 17.

[554] Wilson, in Kennet, ii. 696.

[555] This act (34 H. 8, c. 26) was repealed a few years afterwards. 21 J. 1, c. 10.

[556] Commons' Journals, 466, 472, 481, 486. Sir Henry Wotton at length muttered something in favour of the prerogative of laying impositions, as belonging to hereditary though not to elective princes. Id. 493. This silly argument is only worth notice, as a proof what erroneous notions of government were sometimes imbibed from an intercourse with foreign nations. Dudley Digges and Sandys answered him very properly.

[557] The judges having been called upon by the House of Lords to deliver their opinions on the subject of impositions, previous to the intended conference, requested, by the mouth of Chief Justice Coke, to be excused. This was probably a disappointment to Lord Chancellor Egerton, who had moved to consult them, and proceeded from Coke's dislike to him and to the court. It induced the house to decline the conference. Lords' Journals, 23rd May.

[558] Lords' Journals, May 31; Commons' Journals, 496, 498.

[559] Carte, iv. 23. Neville's memorial above mentioned was read in the house, May 14.

[560] Carte, iv. 19, 20; Bacon, i. 695; C. J. 462.

[561] C. J. 506; Carte, 23. This writer absurdly defends the prerogative of laying impositions on merchandise as part of the law of nations.

[562] 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.

[563] Carte; Wilson; Camden's Annals of James I. (in Kennet, ii. 643).

[564] Carte, iv. p. 56.

[565] 12 Reports, 119.

[566] State Trials, ii. 889.

[567] There had, however, been instances 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 cannot at present quote my authority. In a former age, the judges had refused to give an extra-judicial answer to the king. Lingard, v. 382, from the year-book, Pasch. 1 H. 7, 15, Trin. 1.

[568] State Trials, ii. 869; Bacon, ii. 483, etc.; Dalrymple'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 guilty, under the statute of Edward III., for saying, that "the king, being excommunicated (i.e. if he should be excommunicated) by the pope, might be lawfully deposed and killed by any one, which killing would not be murder, being the execution of the supreme sentence of the pope;" a position very atrocious, but not amounting to treason. State Trials, ii. 879. And Williams, another papist, was convicted of treason by a still more violent stretch of law, for writing a book predicting the king's death in the year 1621. Id. 1085.

[569] Bacon, ii. 500, 518, 522; Cro. Jac. 335, 343.

[570] Bacon, ii. 517, etc.; Carte, iv. 35; Biograph. Brit., art. Coke. The king told the judges, he thought his prerogative as much wounded if it be publicly disputed upon, as if any sentence were given against it.

[571] See D'Israeli, Character of James I., p. 125. He was too much affected by his dismissal from office.

[572] Camden's Annals of James I. in Kennet, vol. ii.; Wilson, ibid., 704, 705; Bacon's Works, ii. 574. The fine imposed was £30,000; Coke voted for £100,000.

[573] Fuller's Church Hist. 56; Neal, i. 435; Lodge, iii. 344.

[574] State Trials, ii. 765.

[575] Collier, 712, 717; Selden's Life in Biographia Brit.

[576] Carte, iii. 698.

[577] State Trials, ii. 23; Lodge's Illustrations, iii. 217.

[578] Winwood, iii. 201, 279.

[579] Id. 178. In this collection are one or two letters from Arabella, which show her to have been a lively and accomplished woman. It is said in a manuscript account of circumstances about the king's accession, which seems entitled to some credit, that on its being proposed that she should walk at the queen's funeral, she answered with spirit that, as she had been debarred her majesty's presence while living, she would not be brought on the stage as a public spectacle after her death. Sloane MSS. 827.

Much occurs on the subject of this lady's imprisonment in one of the valuable volumes in Dr. Birch's handwriting, among the same MSS. 4161. Those have already assisted Mr. D'Israeli in his interesting memoir on Arabella Stuart, in the Curiosities of Literature, New Series, vol. i. They cannot be read (as I should conceive) without indignation at James and his ministers. One of her letters is addressed to the two chief-justices, begging to be brought before them by habeas corpus, being informed that it is designed to remove her far from those courts of justice where she ought to be tried and condemned, or cleared, to remote parts, whose courts she holds unfitted for her offence. "And if your lordships may not or will not grant unto me the ordinary relief of a distressed subject, then I beseech you become humble intercessors to his majesty that I may receive such benefit of justice, as both his majesty by his oath hath promised, and the laws of this realm afford to all others, those of his blood not excepted. And though, unfortunate woman! I can obtain neither, yet I beseech your lordships retain me in your good opinion, and judge charitably till I be proved to have committed any offence either against God or his majesty deserving so long restraint or separation from my lawful husband."

Arabella did not profess the Roman catholic religion, but that party seem to have relied upon her; and so late as 1610, she incurred some "suspicion of being collapsed." Winwood, ii. 117.

This had been also conjectured in the queen's life-time. Secret Correspondence of Cecil with James I., p. 118.

[580] State Trials, ii. 769.

[581] Sir Charles Cornwallis's Memoir of Prince Henry, reprinted in the Somers Tracts, vol. ii., and of which sufficient extracts may be found in Birch's life, contains a remarkably minute detail of all the symptoms attending the prince's illness, which was an epidemic typhus fever. The report of his physicians after dissection may also be read in many books. Nature might possibly have overcome the disorder, if an empirical doctor had not insisted on continually bleeding him. He had no other murderer. We need not even have recourse to Hume's acute and decisive remark that, if Somerset had been so experienced in this trade, he would not have spent five months in bungling about Overbury's death.

Carte says (vol. iv. 33) that the queen charged Somerset with designing to poison her, Prince Charles, and the elector palatine, in order to marry the electress to Lord Suffolk's son. But this is too extravagant, whatever Anne might have thrown out in passion against a favourite she hated. On Henry's death the first suspicion fell of course on the papists. Winwood, iii. 410. Burnet doubts whether his aversion to popery did not hasten his death. And there is a remarkable letter from Sir Robert Naunton to Winwood, in the note of the last reference, which shows that suspicions of some such agency were entertained very early. But the positive evidence we have of his disease outweighs all conjecture.

[582] The circumstances to which I allude are well known to the curious in English history, and might furnish materials for a separate dissertation, had I leisure to stray in these by-paths. Hume has treated them as quite unimportant; and Carte, with his usual honesty, has never alluded to them. Those who read carefully the new edition of the State Trials, and various passages in Lord Bacon's Letters, may form for themselves the best judgment they can. A few conclusions may, perhaps, be laid down as established, 1. That Overbury's death was occasioned, not merely by Lady Somerset's revenge, but by his possession of important secrets, which in his passion he had threatened Somerset to divulge. 2. That Somerset conceived himself to have a hold over the king by the possession of the same or some other secrets, and used indirect threats of revealing them. 3. That the king was in the utmost terror at hearing of these measures; as is proved by a passage in Weldon's Memoirs, p. 115, which, after being long ascribed to his libellous spirit, has lately received the most entire confirmation by some letters from More, lieutenant of the Tower, published in the Archæologia, vol. xviii. 4. That Bacon was in the king's confidence, and employed by him so to manage Somerset's trial, as to prevent him from making any imprudent disclosure, or the judges from getting any insight into that which it was not meant to reveal. See particularly a passage in his letter to Coke, vol. ii. 514, beginning, "This crime was second to none but the powder-plot."

Upon the whole, I cannot satisfy myself in any manner as to this mystery. Prince Henry's death, as I have observed, is out of the question; nor does a different solution, hinted by Harris and others, and which may have suggested itself to the reader, appear probable to my judgment on weighing the whole case. Overbury was an ambitious, unprincipled man; and it seems more likely than anything else, that James had listened too much to some criminal suggestion from him and Somerset; but of what nature I cannot pretend even to conjecture; and that through apprehension of this being disclosed, he had pusillanimously acquiesced in the scheme of Overbury's murder.

It is a remarkable fact, mentioned by Burnet, and perhaps little believed, but which, like the former, has lately been confirmed by documents printed in the Archæologia, that James in the last year of his reign, while dissatisfied with Buckingham, privately renewed his correspondence with Somerset, on whom he bestowed at the same time a full pardon, and seems to have given him hopes of being restored to his former favour. A memorial drawn up by Somerset, evidently at the king's command, and most probably after the clandestine interview reported by Burnet, contains strong charges against Buckingham. Archæologia, vol. xvii. 280. But no consequences resulted from this; James was either reconciled to his favourite before his death, or felt himself too old for a struggle. Somerset seems to have tampered a little with the popular party in the beginning of the next reign. A speech of Sir Robert Cotton's in 1625 (Parl. Hist. ii. 145) praises him, comparatively at least with his successor in royal favour; and he was one of those against whom informations were brought in the star-chamber for dispersing Sir Robert Dudley's famous proposal for bridling the impertinences of parliament. Kennet, iii. 62. The patriots, however, of that age had too much sense to encumber themselves with an ally equally unserviceable and infamous. There cannot be the slightest doubt of Somerset's guilt as to the murder, though some have thought the evidence insufficient (Carte, iv. 34); he does not deny it in his remarkable letter to James, requesting, or rather demanding, mercy, printed in the Cabala and in Bacon's Works.

[583] Raleigh made an attempt to destroy himself on being committed to the Tower; which of course affords a presumption of his consciousness that something could be proved against him. Cayley's Life of Raleigh, vol. ii. p. 10. Hume says, it appears from Sully's Memoirs that he had offered his services to the French ambassador. I cannot find this in Sully; whom Raleigh, however, and his party seem to have aimed at deceiving by false information. Nor could there be any treason in making an interest with the minister of a friendly power. Carte quotes the despatches of Beaumont, the French ambassador, to prove the connection of the conspirators with the Spanish plenipotentiary. But it may be questioned whether he knew any more than the government gave out. If Raleigh had ever shown a discretion bearing the least proportion to his genius, we might reject the whole story as improbable. But it is to be remembered that there had long been a catholic faction, who fixed their hopes on Arabella; so that the conspiracy, though extremely injudicious, was not so perfectly unintelligible as it appears to a reader of Hume, who has overlooked the previous circumstances. It is also to be considered, that the king had shown so marked a prejudice against Raleigh on his coming to England, and the hostility of Cecil was so insidious and implacable, as might drive a man of his rash and impetuous courage to desperate courses. See Cayley's Life of Raleigh, vol. ii.; a work containing much interesting matter, but unfortunately written too much in the spirit of an advocate, which, with so faulty a client, must tend to an erroneous representation of facts.

[584] This estate was Sherborn Castle, which Raleigh had not very fairly obtained from the see of Salisbury. He settled this before his conviction upon his son; but an accidental flaw in the deed enabled the king to wrest it from him, and bestow it on the Earl of Somerset. Lady Raleigh, it is said, solicited his majesty on her knees to spare it; but he only answered, "I mun have the land, I mun have it for Carr." He gave him, however, £12,000 instead. But the estate was worth £5000 per annum. This ruin of the prospects of a man far too intent on aggrandisement impelled him once more into the labyrinth of fatal and dishonest speculations. Cayley, 89, etc.; Somers Tracts, ii. p. 22, etc.; Curiosities of Literature, New Series, vol. ii. It has been said that Raleigh's unjust conviction made him in one day the most popular, from having been the most odious, man in England. He was certainly such under Elizabeth. This is a striking, but by no means solitary, instance of the impolicy of political persecution.

[585] Rymer, xvi. 789. He was empowered to name officers, to use martial law, etc.

[586] James made it a merit with the court of Madrid, that he had put to death a man so capable of serving him merely to give them satisfaction. Somers Tracts, ii. 437. There is even reason to suspect that he betrayed the secret of Raleigh's voyage to Gondomar, before he sailed. Hardwicke, State Papers, i. 398. It is said in Mr. Cayley's Life of Raleigh that his fatal mistake in not securing a pardon under the great seal was on account of the expense. But the king would have made some difficulty at least about granting it.

[587] This project began as early as 1605. Winwood, vol. ii. The king had hopes that the United Provinces would acknowledge the sovereignty of Prince Henry and the infanta on their marriage; and Cornwallis was directed to propose this formally to the court of Madrid. Id. p. 201. But Spain would not cede the point of sovereignty; nor was this scheme likely to please either the states-general or the court of France.

In the later negotiation about the marriage of Prince Charles, those of the council who were known or suspected catholics, Arundel, Worcester, Digby, Weston, Calvert, as well as Buckingham, whose connections were such, were in the Spanish party. Those reputed to be jealous protestants were all against it. Wilson, in Kennet, ii. 725. Many of the former were bribed by Gondomar. Id. and Rushworth, i. 19.

[588] The proclamation for this parliament contains many of the unconstitutional directions to the electors, contained, as has been seen, in that of 1604, though shorter. Rymer, xvii. 270.

[589] "Deal with me, as I shall desire at your hands," etc. "He knew not," he told them, "the laws and customs of the land when he first came, and was misled by the old counsellors whom the old queen had left;"—he owns that at the last parliament there was "a strange kind of beast called undertaker," etc. Parl. Hist. i. 1180. Yet this coaxing language was oddly mingled with sallies of his pride and prerogative notions. It is evidently his own composition, not Bacon's. The latter, in granting the speaker's petitions, took the high tone so usual in this reign, and directed the House of Commons like a schoolmaster. Bacon's Works, i. 701.

[590] Debates of Commons in 1621, vol. i. p. 84. I quote the two volumes published at Oxford in 1766; they are abridged in the new Parliamentary History.

[591] Id. 103, 109.

[592] The Commons in this session complained to the Lords, that the Bishop of London (Stokesley) had imprisoned one Philips on suspicion of heresy. Some time afterwards, they called upon him to answer their complaint. The bishop laid the matter before the Lords, who all declared that it was unbecoming for any lord of parliament to make answer to any one in that place; "quod non consentaneum fuit aliquem procerum prædictorum alicui in eo loco responsorum." Lords' Journals, i. 71. The lords, however, in 1701 (State Trials, xiv. 275), seem to have recognised this as a case of impeachment.

[593] Debates in 1621, p. 114, 228, 229.

[594] Id. passim.

[595] Carte.

[596] Clarendon speaks of this impeachment as an unhappy precedent, made to gratify a private displeasure. This expression seems rather to point to Buckingham than to Coke; and some letters of Bacon to the favourite at the time of his fall display a consciousness of having offended him. Yet Buckingham had much more reason to thank Bacon as his wisest counsellor, than to assist in crushing him. In his works (vol. i. p. 712) is a tract, entitled "Advice to the Duke of Buckingham," containing instructions for his governance as minister. These are marked by the deep sagacity and extensive observation of the writer. One passage should be quoted in justice to Bacon. "As far as it may lie in you, let no arbitrary power be intruded; the people of this kingdom love the laws thereof, and nothing will oblige them more than a confidence of the free enjoying of them: what the nobles upon an occasion once said in parliament, 'Nolumus leges Angliæ mutari,' is imprinted in the hearts of all the people." I may add that with all Bacon's pliancy, there are fewer over-strained expressions about the prerogative in his political writings than we should expect. His practice was servile, but his principles were not unconstitutional. We have seen how strongly he urged the calling of parliament in 1614: and he did the same, unhappily for himself, in 1621. Vol. ii. p. 580. He refused also to set the great seal to an office intended to be erected for enrolling prentices, a speculation apparently of some monopolists; writing a very proper letter to Buckingham, that there was no ground of law for it. P. 555.

I am very loth to call Bacon, for the sake of Pope's antithesis, "the meanest of mankind." Who would not wish to believe the feeling language of his letter to the king, after the attack on him had already begun? "I hope I shall not be found to have the troubled fountain of a corrupt heart, in a depraved habit of taking rewards to pervert justice; howsoever I may be frail, and partake of the abuses of the times."—P. 589. Yet the general disesteem of his contemporaries speaks forcibly against him. Sir Simon d'Ewes and Weldon, both indeed bitter men, give him the worst of characters. "Surely," says the latter, "never so many parts and so base and abject a spirit tenanted together in any one earthen cottage as in this man." It is a striking proof of the splendour of Bacon's genius, that it was unanimously acknowledged in his own age amidst so much that should excite contempt. He had indeed ingratiated himself with every preceding parliament through his incomparable ductility; having take an active part in their complaints of grievances in 1604, before he became attorney-general, and even on many occasions afterwards while he held that office, having been intrusted with the management of conferences on the most delicate subjects. In 1614, the Commons, after voting that the attorney-general ought not to be elected to parliament, made an exception in favour of Bacon. Journals, p. 460. "I have been always gracious in the lower house," he writes to James in 1616, begging for the post of chancellor; "I have interest in the gentlemen of England, and shall be able to do some good effect in rectifying that body of parliament-men, which is cardo rerum." Vol. ii. p. 496.

I shall conclude this note by observing, that, if all Lord Bacon's philosophy had never existed, there would be enough in his political writings to place him among the greatest men this country has produced.

[597] Debates in 1621, vol. ii. p. 7.

[598] Debates, p. 14.

[599] In a former parliament of this reign, the Commons having sent up a message, wherein they entitled themselves the knights, citizens, burgesses, and barons of the commons' court of parliament, the Lords sent them word that they would never acknowledge any man that sitteth in the lower house to have the right or title of a baron of parliament; nor could admit the term of the commons' court of parliament; "because all your house together, without theirs, doth make no court of parliament." 4th March, 1606. Lords' Journals. Nevertheless the Lords did not scruple almost immediately afterwards, to denominate their own house a court, as appears by memoranda of 27th and 28th May; they even issued a habeas corpus as from a court, to bring a servant of the Earl of Bedford before them. So also in 1609, 16th and 17th of February. And on April 14th and 18th, 1614; and probably later, if search were made.

I need hardly mention, that the barons mentioned above, as part of the Commons, were the members for the cinque ports, whose denomination is recognised in several statutes.

[600] Debates in 1621, vol. i. p. 355, etc.; vol. ii. p. 5, etc. Mede writes to his correspondent on May 11, that the execution had not taken place; "but I hope it will." The king was plainly averse to it.

[601] The following observation on Floyd's case, written by Mr. Harley, in a manuscript account of the proceedings (Harl. MSS. 6274), is well worthy to be inserted. I copy from the appendix to the above-mentioned debates of 1621. "The following collection," he has written at the top, "is an instance how far a zeal against popery and for one branch of the royal family, which was supposed to be neglected by King James, and consequently in opposition to him, will carry people against common justice and humanity." And again at the bottom: "For the honour of Englishmen, and indeed of human nature, it were to be hoped these debates were not truly taken, there being so many motions contrary to the laws of the land, the laws of parliament, and common justice. Robert Harley, July 14, 1702." It is remarkable that this date is very near the time when the writer of these just observations, and the party which he led, had been straining in more than one instance the privileges of the House of Commons, not certainly with such violence as in the case of Floyd, but much beyond what can be deemed their legitimate extent.

[602] In a much later period of the session, when the Commons had lost their good humour, some heat was very justly excited by a petition from some brewers, complaining of an imposition of four-pence on the quarter of malt. The courtiers defended this as a composition in lieu of purveyance. But it was answered that it was compulsory, for several of the principal brewers had been committed and lay long in prison for not yielding to it. One said that impositions of this nature overthrew the liberty of all the subjects of this kingdom; and if the king may impose such taxes, then are we but villains, and lose all our liberties. It produced an order that the matter be examined before the house, the petitioners to be heard by council, and all the lawyers of the house to be present. Debates of 1621, vol. ii. 252; Journals, p. 652. But nothing further seems to have taken place, whether on account of the magnitude of the business which occupied them during the short remainder of the session, or because a bill which passed their house to prevent illegal imprisonment, or restraint on the lawful occupation of the subject, was supposed to meet this case. It is a remarkable instance of arbitrary taxation, and preparatory to an excise.

[603] Debates of 1621, p. 14; Hatsell's Precedents, i. 133.

[604] Debates, p. 114, et alibi, passim.

[605] Vol. ii. 170, 172.

[606] Id. p. 186.

[607] P. 189. Lord Cranfield told the Commons there were three reasons why they should give liberally. 1. That lands were now a third better than when the king came to the crown. 2. That wools, which were then 20s. were now 30s. 3. That corn had risen from 26s. to 36s. the quarter. Ibid. There had certainly been a very great increase of wealth under James, especially to the country gentlemen; of which their style of building is an evident proof. Yet in this very session complaints had been made of the want of money, and fall in the price of lands (vol. i. p. 16); and an act was proposed against the importation of corn (vol. ii. p. 87). In fact, rents had been enormously enhanced in this reign, which the country gentlemen of course endeavoured to keep up. But corn, probably through good seasons, was rather lower in 1621 than it had been—about 30s. a quarter.

[608] P. 242, etc.

[609] Id. 174, 200. Compare also p. 151. Sir Thomas Wentworth appears to have discountenanced the resenting this as a breach of privilege. Doubtless the house showed great and even excessive moderation in it; for we can hardly doubt that Sandys was really committed for no other cause than his behaviour in parliament. It was taken up again afterwards. P. 259.

[610] P. 261, etc.

[611] P. 284.

[612] P. 289.

[613] P. 317.

[614] P. 330.

[615] P. 339.

[616] P. 359.

[617] Rymer, xvii. 344; Parl. Hist. Carte, 93; Wilson.

[618] 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. 389.

[619] Wilson's Hist. 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. 389), "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 counsellor; whereupon the king sent for Lord Oxford, and asked him for it; he, according to previous agreement, said he had it not; then he sent for another, who made the same answer: at last they told him they had resolved not to deliver it, unless they were admitted all together. Whereupon his majesty, wonderfully incensed, sent them all away, re infectâ, and said that he would come into parliament himself, and bring them all to the bar." This petition, I believe, did not relate to any general grievances, but to a question of their own privileges, as to their precedence 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 parliament 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 pains."

The entertaining and sensible biographer of James has sketched the characters of these Whig peers. Aikin's James I., ii. 238.

[620] One of these may be found in the Somers Tracts, ii. 470, entitled Tom Tell-truth, a most malignant ebullition of disloyalty, which the author must have risked his neck as well as ears in publishing. Some outrageous reflections on the personal character of the king could hardly be excelled by modern licentiousness. Proclamations about this time against excess of lavish speech in matters of state (Rymer, xvii. 275, 514), and against printing or uttering seditious and scandalous pamphlets (Id. 522, 616) show the tone and temper of the nation.

[621] The letters on this subject, published by Lord Hardwicke (State Papers, vol. i.) are highly important; and being unknown to Carte and Hume, render their narratives less satisfactory. 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 during the Prince of Wales's residence, deserve notice. See also Wilson in Kennet, p. 750, et post. Dr. Lingard has illustrated the subject lately (ix. 271).

[622] 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 been under the Tudors, 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 underrate them, is rather contrary to common fiscal usage. In one of Mede'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 knowledge, and not his own confession.

[623] Parl. Hist. 1383, 1388, 1390; Carte, 119. The king seems to have acted pretty fairly in this parliament, 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 very right in doing so. On the other hand, the prince and Duke of Buckingham behaved in public towards him with great rudeness. Parl. Hist. 1396.

[624] Parl. Hist. 1421.

[625] Clarendon blames the impeachment of Middlesex 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 resentment. Hacket also, the biographer of Williams, takes his part. Carte, however, thought him guilty (p. 116); and the unanimous vote of the peers is much against him, since that house was not wholly governed by Buckingham. See too the "Life of Nicholas Farrar" in Wordsworth's Ecclesiastical Biography, vol. iv.; where it appears that that pious and conscientious man was one of the treasurer's most forward accusers, having been deeply injured by him. It is difficult to determine the question from the printed trial.

[626] 21 Jac. 1, c. 3. See what Lord Coke says on this act, and on the general subject of monopolies. 3 Inst. 181.

[627] P. H. 1483.

[628] Id. 1488.

[629] The general temperance and chastity of Charles, and the effect those virtues had in reforming the outward face of the court, are attested by many writers, and especially by Mrs. Hutchinson, whose good word he would not have undeservedly obtained. Mem. of Col. Hutchinson, p. 65. I am aware that he was not the perfect saint as well as martyr which his panegyrists represent him to have been; but it is an unworthy office, even for the purpose of throwing ridicule on exaggerated praise, to turn the microscope of history on private life.

[630] War had not been declared at Charles's accession, nor at the dissolution of the first parliament. In fact, he was much more set upon it than his subjects. Hume and all his school keep this out of sight.

[631] Hume has disputed this, but with little success, 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 himself a papist—that it is false, and was never said by Bristol. It is singular that Hume should know so 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 Buckingham, of all descriptions of malcontents.

[632] Parl. Hist. vol. ii. p. 6.

[633] Id. 33.

[634] 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 mighty monarch and the submissive awe and lowliness of loyal subjects, we cannot but receive exceeding comfort and contentment in the frame and constitution of this highest court, wherein not only the prelates, nobles, and grandees, but the commons of all degrees, have their part; and wherein that high majesty doth descend to admit, or rather to invite, the humblest of his subjects to conference and counsel with him," etc. He gave them a distinct hint afterwards that they must not expect to sit long. Parl. Hist. 39.

[635] Parl. Hist. 60. I know of nothing under the Tudors of greater arrogance than this language. Sir Dudley Carleton, accustomed more to foreign negotiations than to an English House of Commons, gave very just offence by descanting on the misery of the people in other countries. "He cautioned them not to make the king out of love with parliaments by incroaching on his prerogative; for in his messages he had told them that he must then use new councils. In all Christian kingdoms there were parliaments anciently, till the monarchs seeing their turbulent spirits, stood upon their prerogatives, and overthrew them all, except with us. In foreign countries the people look not like ours, with store of flesh on their backs; but like ghosts, being nothing but skin and bones, with some thin cover to their nakedness, and wearing wooden shoes on their feet; a misery beyond expression, and that we are yet free from; and let us not lose the repute of a free-born nation by our turbulency in parliament." Rushworth.

This was a hint, in the usual arrogant style of courts, that the liberties of the people depended on favour, and not on their own determination to maintain them.

[636] Parl. 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 by Clarendon in the first book of history. He held ten proxies in the king's first parliament, as Buckingham did thirteen. Lingard, ix. 328. In the second Pembroke had had only five, but the duke still came with thirteen. Lords' Journals, p. 491. This enormous accumulation of suffrages in one person led to an order of the house, which is now its established regulation, that no peer can hold more than two proxies. Lords' Journals, p. 507.

[637] Parl. Hist. 125; Hatsell, 141.

[638] Mr. Brodie has commented rather too severely on Bristol's conduct. Vol. ii. p. 109. That he was "actuated merely by motives of self-aggrandisement," 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 towards the religion of Rome. The last, however, is by no means proved; for the king's word is no proof in my eyes.

[639] See the proceedings on the mutual charges of Buckingham and Bristol in Rushworth, or the Parliamentary History. Charles's behaviour is worth noticing. He sent a message to the house, desiring that they would not comply with the earl's request of being allowed counsel; and yielded ungraciously, when the Lords remonstrated against the prohibition. Parl. Hist. 97, 132. The attorney-general exhibited articles against Bristol as to facts depending in great measure on the king's sole testimony. Bristol petitioned the house "to take in consideration of what consequence such a precedent might be; and thereon most humbly to move his majesty for the declining, at least, of his majesty'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 felony, 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? They were ordered to deliver their opinions three days afterwards. But when the time came, the chief justice informed the house that the attorney-general had communicated to the judges his majesty's pleasure that they should forbear to give an answer. Id. 103, 106.

Hume says, "Charles himself was certainly deceived by Buckingham, when he corroborated his favourite's narrative by his testimony." But no assertion can be more gratuitous; the supposition indeed is impossible.

[640] Parl. Hist. 193. If the following letter is accurate, the privy-council themselves were against this dissolution: "Yesterday the Lords sitting in council at Whitehall to argue whether the parliament 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 majesty to let him know how dangerous this abruption would be to the state, and beseech him the parliament might sit but two days—he answered not a minute."—15 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 others, perhaps more probably, to the house of peers. The king's expression "not a minute" is mentioned by several writers.

[641] Rushworth, Kennet.

[642] Mede's Letters—"On Monday the judges sat in Westminster-hall to persuade the people to pay subsidies; but there arose a great tumultuous shout amongst 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!' etc. The same was done in Middlesex on Monday also, in five or six places, but far more are said to have refused the grant. At Hicks'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 answer 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 might be called in question." July 22, et post. In Harleian MSS. xxxvii. fol. 192, we find a letter from the king to the deputy lieutenant 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, where they had promised; he therefore enjoins the deputy 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 defence; to send a list of those who contribute and those who refuse, "that we may 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.

[643] Rushworth's Abr. i. 270.

[644] 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 parliaments of Charles, taken by a counsellor. It was proposed to lay an excise on beer; others suggested that it should be on malt, on account of what was brewed in private houses. It was then debated "how to overcome difficulties, whether by persuasion or force. Persuasion, it was thought, would not gain it; and for judicial courses, it would not hold against the subject that would stand upon the right of his own property, and against the fundamental constitutions of the kingdom. The last resort was to a proclamation; for in star-chamber it might be punishable, and thereupon it rested." There follows much more; it seemed to be agreed that there was such a necessity as might justify the imposition; yet a sort of reluctance is visible even among these timid counsellors. The king pressed it forward much. In the same volume (p. 393) we find other proceedings at the council-table, whereof the subject was, the censuring or punishing of some one who had refused to contribute to the loan of 1626 on the ground of its illegality. The highest language is held by some of the conclave in this debate.

Mr. D'Israeli has collected from the same copious reservoir, the manuscripts of the British Museum, 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 ingenious author is too much imbued with "the monstrous faith of many made for one," and sets the private feelings of Charles for an unworthy and dangerous minion, above the liberties and interests of the nation.

[645] Rushworth, Kennet.

[646] See above, in chap. v. Coke himself, while chief justice, had held that one committed by the privy-council was not bailable by any court in England. Parl. Hist. 310. He had nothing to say when pressed with this in the next parliament, but that he had misgrounded his opinion upon a certain precedent, which being nothing to the purpose, he was now assured his opinion was as little to the purpose. Id. 325; State Trials, iii. 81.

[647] State Trials, iii. 1-234; Parl. Hist. 246, 259, etc.; Rushworth.

[648] At the council-table, some proposing a parliament, the king said, he did abominate the name. Mede's Letters, 30th Sept. 1626.

[649] Rushworth; Mede's Letters in Harl. MSS. passim.

[650] Rushworth's Abr. i. 304; Cabala, part ii. 217. See what is said of this by Mr. Brodie, ii. 158.

[651] A commission addressed to Lord Wimbledon, 28th Dec. 1625, empowers him to proceed against soldiers or dissolute persons joining with them, who should commit any robberies, etc., which by martial law ought to be punished with death, by such summary course as is agreeable to martial law, etc. Rymer, xviii. 254. Another, in 1626, may be found. P. 763. It is unnecessary to point out how unlike these commissions are to our present mutiny-bills.

[652] 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 power; which very justly exposed him to suspicion of being corrupted. For that he was so is most evident by what follows; where we are told that he had an interview with the Duke 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 estimation, that he might the sooner do the work." Hacket's Life of Williams, pp. 77, 80. With such instances of baseness and treachery in the public men of this age, surely the distrust of the Commons was not so extravagant as the school of Hume pretend.

[653] The debates and conferences on this momentous subject, especially on the article of the habeas corpus, occupy near two hundred columns in the New Parliamentary History, to which I refer the reader.

In one of these conferences, the Lords, observing what a prodigious weight of legal ability was arrayed on the side of the petition, very fairly determined to hear counsel for the Crown. One of these, Serjeant 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 principles!

[654] Hargrave MSS. xxxii. 97.

[655] Parl. Hist. 436.

[656] Stat. 3 Car. I. c. 1. Hume 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.

[657] Parl. Hist. 431.

[658] Rushworth Abr. i. 409.

[659] Parl. Hist. 441, etc.

[660] Cawdrey's Case, 5 Reports; Cro. Jac. 37; Neal, p. 432. The latter says, above three hundred were deprived; but Collier reduces them to forty-nine. P. 687. The former writer states the nonconformist 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 exemplary portion of the clergy; no scandalous or absolutely illiterate incumbent, of whom there was a very large number, being a nonconformist. This general enforcement of conformity, however it might compel the majority's obedience, rendered the separation of the incompliant more decided. Neal, 446. Many retired to Holland, especially of the Brownist, or Independent denomination. Id. 436. And Bancroft, like his successor Laud, interfered to stop some who were setting out for Virginia. Id. 454.

[661] Lord Bacon, in his advertisement respecting the Controversies of the Church of England, written under Elizabeth, speaks of this notion as newly broached. "Yea and some indiscreet persons have been bold in open preaching to use dishonourable and derogatory speech and censure of the churches abroad; and that so far, as some of our men ordained in foreign parts have been pronounced 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. Instances, however, of foreigners holding preferment without any re-ordination, may be found down to the civil wars. Annals of Reformation, ii. 522, and Appendix, 116; Life of Grindal, 271; Collier, ii. 594; Neal, i. 258.

The divine right of episcopacy is said to have been laid down by Bancroft, in his famous sermon at Paul's cross, in 1588. But I do not find anything 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, etc. Yet Laud had been reproved by the university of Oxford in 1604, for maintaining, in his 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 Continent. Heylin's Life of Laud, 54.

Cranmer and some of the original founders of the Anglican church, so far from maintaining the divine and indispensable right of episcopal government, held bishops and priests to be the same order.

[662] See the queen's injunctions of 1559 (Somers Tracts, i. 65), and compare preamble of 5 and 6 of Edw. VI. c. 3.

[663] The first of these Sabbatarians was a Dr. Bound, whose sermon was suppressed by Whitgift's order. But some years before, one of Martin Mar-prelate's charges against Aylmer was for playing at bowls on Sundays: and the word sabbath as applied to that day may be found occasionally under Elizabeth, though by no means so usual as afterwards. One of Bound's recommendations was that no feasts should be given on that day, "except 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 doctrine; and remarks, what a slight acquaintance with human nature would have taught Archbishop Laud, that "the more liberty people were offered, the less they used it; it was sport for them to refrain from sport." See also Collier, 643; Neal, 386; Strype's Whitgift, 530; May's Hist. of Parliament, 16.

[664] 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 gratify 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 commonly called vigils, and in the time commonly called Lent, and other accustomed times; the king's majesty considering that due and godly abstinence is a mean to virtue and to subdue men's bodies to their soul and spirit, and considering 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 laws on the subject, that such as eat flesh at the forbidden seasons shall incur a penalty of ten shillings, or ten days' imprisonment without flesh, and a double penalty for the second offence.

The next statute relating to abstinence is one (5th Eliz. c. 5) entirely for the increase of the fishery. It enacts (§ 15, etc.) that no one, unless having a licence, shall eat flesh on fish-days, or on Wednesdays, now made an additional fish-day, under a penalty of £3, or three months' imprisonment. 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 forbearing of flesh mentioned therein is of any necessity 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 punished 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, under a penalty. The 35th Eliz. c. 7, § 22, reduces the penalty of three pounds 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 congenial to the propensities of Englishmen. One of those in the first year of Edward was before any statute; and its very words respecting the indifference of meats in a religious sense were adopted by the legislature the next year. Strype's Eccles. Memor. ii. 81. In one of Elizabeth's, a.d. 1572, as in the statute of Edward, the political motives of the prohibition seem in some measure associated with the superstition it disclaims; for eating 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 carnal appetite;" and butchers, etc., "ministering to such foul lust of the flesh," were severely mulcted. Strype's Annals, ii. 208. But in 1576 another proclamation to the same effect uses no such hard words, and protests strongly against any superstitious interpretation of its motive. Life of Grindal, p. 226. So also in 1579 (Strype'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. Strype's Whitgift, p. 490. These proclamations for the observance of Lent continued 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 observance of Lent as an ordinance of the church. But I suspect that little regard was paid to Friday and Saturday as days of weekly fast. Rymer, xvii. 131, 134, 349; xviii. 268, 282, 961.

This abstemious system, however, was only compulsory on the poor. Licences were easily obtained by others from the privy-council in Edward's days, and afterwards 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 Winchester had permission for twelve friends; and John Sanford, draper of Gloucester, for two. Strype's Memorials, ii. 82. The act above mentioned for encouragement of the fishery, 5th Eliz. c. 5, provides that £1 6s. 8d. shall be paid for granting every licence, and 6s. 8d. annually afterwards, to the poor of the parish. But no licence was to be granted for eating beef at any time of the year, or veal from Michaelmas to the first of May. A melancholy privation to our countrymen! but, I have no doubt, little regarded. Strype makes known to us the interesting fact, that Ambrose Potter, of Gravesend, and his wife, had permission from 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. 8d. annually to the poor of the parish." Life of Whitgift, 246.

The civil wars did not so put an end to the compulsory observance of Lent and fish days but that similar proclamations are found after the Restoration, I know not how long. Kennet's Register, p. 367 and 558. And some orthodox Anglicans continued to make a show of fasting. The following extracts from Pepys' diary are, perhaps, characteristic of the class. "I called for a dish of fish which we had for dinner, this being the first day of Lent; and I do intend to try whether I can keep it or no." Feb. 27, 1661. "Notwithstanding my resolution, yet for want of other victuals, I did eat flesh this Lent, but am resolved to eat as little as I can.

[665] Wilson, 709.

[666] Debates in parliament, 1621, vol. i. pp. 45, 52. The king requested them not to pass this bill, being so directly against his proclamation. Id. 60. Shepherd's expulsion is mentioned in Mede's Letters, Harl. MSS. 389.

[667] Vol. ii. 97. Two 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 annoyance, it seems, to the orthodox party. "Had any such bill," says Heylin, "been offered in King James's time, it would have found a sorry welcome; but this king being under a necessity of compliance with them, resolved to grant them their desires in that particular, to the end that they might grant his also in the aid required, when that obstruction was removed. The Sabbatarians took the benefit of this opportunity for the obtaining of this grant, the first that ever they obtained by all their strugglings, which of what consequence it was we shall see hereafter." Life of Laud, p. 129. Yet this statute permits the people lawful sports and pastimes on Sundays within their own parishes.

[668] Without loading the page with too many references on a subject so little connected with this work, I mention Strype's Annals, vol. i. p. 118, and a letter from Jewel to P. Martyr in Burnet, vol. iii. Appendix 275.

[669] Collier, 568.

[670] Strype's Annals, i. 207, 294.

[671] Strype's Whitgift, 434-472.

[672] It is admitted on all hands that the Greek fathers 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 Chrysostom and the other Greeks. Strype's Annals, i. 324.

[673] Winwood, iii. 293. The intemperate and even impertinent behaviour of James in pressing the states of Holland to inflict some censure or punishment on Vorstius, is well known. But though Vorstius was an Arminian, it was not precisely on account of those opinions that he incurred the king's peculiar displeasure, but 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 have spoken moderately of predestination as a dubious point (p. 452), though he had treated Arminius as a mischievous innovator for raising a question about it; and this is 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 in 1616; also Brandt, iii. 313.

[674] Sir Dudley Carleton's Letters and Negotiations, 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 king, not by the church of England which they did not represent.

[675] There is some obscurity about the rapid transition of the court from Calvinism to the opposite side. It has been supposed that the part taken by James at the synod of Dort was chiefly political, with a view to support the house of Orange against the party headed by Barnevelt. But he was so much more of a theologian than a statesman, that I much doubt whether this will account satisfactorily for his zeal in behalf of the Gomarists. He wrote on the subject with much polemical bitterness, but without reference, so far as I have observed, to any political faction; though Sir Dudley Carleton's letters show that he contemplated the matter as a minister ought to do. Heylin intimates that the king grew "more moderate afterwards, and into a better liking of those opinions which he had laboured 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 doctrinal puritans for those who distinguished themselves by holding the Calvinistic tenets. Yet the synod of Dort was in 1618; 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 puritan; including several tenets in the latter denomination, besides those of the quinquarticular controversy; such as the indispensable observance of the Lord's day, the indiscrimination of bishops and presbyters, etc. Life of Laud, 119. The influence of Laud became so great that to preach in favour of Calvinism, though commonly reputed to be the doctrine of the church, incurred punishment in any rank. Davenant, Bishop of Salisbury, one of the divines sent to Dort, and reckoned among the principal theologians of that age, was reprimanded on his knees before the privy-council for this offence. Collier, p. 750. But in James's reign the University of Oxford was decidedly Calvinistic. A preacher, about 1623, having used some suspicious expressions, was compelled to recant them, and to maintain the following theses in the divinity school: Decretum prædestinationis non est conditionale—Gratia sufficiens ad salutem non conceditur omnibus. Wood, ii. 348. And I suppose it continued so in the next reign, so far as the university's opinions could be manifested. But Laud took care that no one should be promoted, as far as he could help it, who held these tenets.

[676] Winwood, vol. i. pp. 1, 52, 388; Lettres d'Ossat, 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, etc. 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 very 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 personally "so much beholden to the new bishop of Rome for his kind office and private temporal carriage towards us in many things, as we shall ever be ready to requite the same towards him as Bishop of Rome in state and condition of a secular prince." Rymer, xvi. 573. This is explained by a passage in the memoirs of Sully (l. 15). Clement VIII., though before Elizabeth's death he had abetted the project 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 dedication of a work written against him, besides, probably, some other courtesies. There is a letter from the king addressed to the pope, and probably written in 1603, among the Cottonian MSS. Nero B. vi. 9, which shows his disposition to coax and coquet with the Babylonian, against whom he so much inveighs in his printed works. It seems that Clement had so far presumed as to suggest that the Prince of Wales should be educated a catholic; which the king refuses, but not in so strong a manner as he should have done. I cannot recollect whether this letter has been printed, though I can scarcely suppose the contrary. Persons himself began to praise the works of James, and show much hope of what he would do. Cotton, Jul. B. vi. 77.

The severities against catholics seem at first to have been practically mitigated. Winwood, ii. 78. Archbishop Hutton wrote to Cecil, complaining of the toleration granted to papists, while the puritans were severely treated. Id. p. 40; Lodge, iii. 251. "The former," he says, "partly by this round dealing with the puritans, and partly by some extraordinary favour, have grown mightily in number, courage, and influence."—"If the gospel shall quail, and popery prevail, it will be imputed principally unto your great counsellors, who either procure or yield to grant toleration to some." James told some gentlemen who petitioned for toleration, that the utmost they could expect was connivance. Carte, iii. 711. This seems to have been what he intended through his reign, till importuned by Spain and France to promise more.

[677] 1 Jac. I. c. 4. The penalties of recusancy were particularly hard upon women, who, 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 liable for their wives' recusancy. Carte, 754. But they had the alternative afterwards, by 7 Jac. I. c. 6, of letting their wives lie in prison or paying £10 a month.

[678] Lingard, ix. 41, 55.

[679] From comparing some passages in Sir Charles Cornwallis's despatches, (Winwood, vol. ii. pp. 143, 144, 153, with others in Birch's account of Sir Thomas Edmondes's negotiations, p. 233, et seq.) it appears that the English catholics were looking forward at this time to some crisis in their favour, and that even the court of Spain was influenced by their hopes. A letter from Sir Thomas Parry to Edmondes, dated at Paris, 10 Oct. 1605, is remarkable: "Our priests are very busy about petitions to be exhibited to the king's majesty at this parliament, and some further designs upon refusal. These matters are secretly managed by intelligence 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 you found means to have privy spies amongst them, to discover their negotiations. Something is at present in hand amongst 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 suspicion that the nuncio at Brussels was privy to the conspiracy; though this ought not to be asserted as an historical fact. Whether the offence 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 altogether on his word; and the prevarication of which he has been proved to be guilty (not to mention the damning circumstance that he was taken at Hendlip in concealment along with the other conspirators), makes it difficult for a candid man to acquit him of a thorough participation in their guilt. Compare Townsend's Accusations of History against the Church of Rome (1825), p. 247, containing extracts from some important documents in the State Paper-Office, not as yet published, with State Trials, vol. ii.; and see Lingard, ix. 160, etc. Yet it should be kept in mind that it was easy for a few artful persons to keep on the alert by indistinct communications a credulous multitude whose daily food was rumour; and the general hopes of the English Romanists at the moment are not evidence 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 Cecil, as has sometimes been done, argues great effrontery in those who lead, and great stupidity in those who follow. The letter to Lord Monteagle, the discovery of the powder, the simultaneous rising 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 clue to the dark allusions in the letter to Monteagle, of which he was courtier enough to let the king take the credit? James's admirers have always reckoned this, as he did himself, a vast proof of sagacity; yet there seems no great acuteness in the discovery, even if it had been his own. He might have recollected the circumstances of his father's catastrophe, which would naturally put him on the scent of gunpowder. In point of fact, however, the happy conjecture appears to be Cecil's. Winwood, ii. 170. But had he no previous hint? See Lodge, iii. 301.

The Earl of Northumberland was not only committed to the Tower on suspicion of privity in the plot, but lay fourteen years there, and paid a fine of £11,000 (by composition for £30,000), before he was released. Lingard, ix. 89. It appears almost incredible that a man of his ability, though certainly of a dangerous and discontented spirit, and rather destitute of religion than a zealot for popery, which he did not, I believe, openly profess, should have mingled in so flagitious a design. There is indeed a remarkable letter in Winwood, vol. iii. p. 287, which tends to corroborate the suspicions entertained of him. But this letter is from Salisbury, his inveterate enemy. Every one must agree, that the fine imposed on this nobleman was preposterous. Were we even to admit that suspicion might justify his long imprisonment, a participation in one of the most atrocious conspiracies recorded in history was, if proved, to be more severely punished; if unproved, not at all.

[680] 3 Jac. I. c. 4, 5.

[681] Carte, iii. 782; Collier, 690; Butler's Memoirs of Catholics; Lingard, vol. ix. 97; Aikin, i. 319. It is observed by Collier, ii. 695, and indeed by the king himself, in his Apology for the Oath of Allegiance (edit. 1619), p. 46, that Bellarmine plainly confounds the oath of allegiance with that of supremacy. But this cannot be the whole of the case; it is notorious that Bellarmine protested against any denial of the pope's deposing power.

[682] Lingard, ix. 215. Drury, executed in 1607, was one of the twelve priests who, in 1602, had signed a declaration of the queen's right to the crown, notwithstanding her excommunication. But, though he evidently wavered, he could not be induced to say as much now in order to save his life. State Trials, ii. 358.

[683] Lord Bacon, wise in all things, always recommended mildness towards recusants. In a letter to Villiers, in 1616, he advises that the oath of supremacy should by no means be tendered to recusant magistrates in Ireland; "the new plantation of protestants," he says, "must mate the other party in time." Vol. ii. p. 530. This has not indeed proved true; yet as much, perhaps, for want of following Bacon's advice, as for any other cause. He wished for a like toleration in England. But the king, as Buckingham lets him know, was of a quite contrary opinion; for, "though he would not by any means have a more severe course held than his laws appoint in that case, yet there are many reasons why there should be no mitigation above that which his laws have exerted, and his own conscience telleth him to be fit." He afterwards professes "to account it a baseness in a prince to show such a desire of the match [this was in 1617] as to slack anything in his course of government, much more in propagation of the religion he professeth, for fear of giving hinderance to the match thereby."—Page 562. What a contrast to the behaviour of this same king six years afterwards! The Commons were always dissatisfied with lenity, and complained that the lands of recusants were undervalued; as they must have been, if the king got only £6000 per annum by the compositions. Debates in 1621, vol. i. pp. 24, 91. But he valued those in England and Ireland at £36,000. Lingard, 215, from Hardwicke Papers.

[684] The absurd and highly blamable conduct of Buckingham has created a prejudice in favour of the court of Madrid. That they desired the marriage is easy to be believed; but that they would have ever sincerely co-operated for the restoration of the Palatinate, or even withdrawn the Spanish troops from it, is neither rendered probable by the general policy of that government, nor by the conduct it pursued in the negotiation. Compare Hardwicke State Papers, vol. i.; Cabala, 1, et post; Howell's Letters; Clarendon State Papers, vol. i. ad initium, especially p. 13.

A very curious paper in the latter collection (p. 14) may be thought, perhaps, to throw light on Buckingham's projects, and account in some measure for his sudden enmity to Spain. During his residence at Madrid in 1623, a secretary who had been dissatisfied with the court revealed to him a pretended secret discovery of gold mines in a part of America, and suggested that they might be easily possessed by any association that could command seven or eight hundred men; and that after having made such a settlement, it would be easy to take the Spanish flotilla, and attempt the conquest of Jamaica and St. Domingo. This made so great an impression on the mind of Buckingham, that, long afterwards in 1628, he entered into a contract with Gustavus Adolphus, who bound himself to defend him against all opposers in the possession of these mines, as an absolute prince and sovereign, on condition of receiving one-tenth of the profits; promising especially his aid against any puritans who might attack him from Barbadoes or elsewhere, and to furnish him with four thousand men and six ships of war, to be paid out of the revenue of the mines.

This is a very strange document, if genuine. It seems to show that Buckingham, aware of his unpopularity in England, and that sooner or later he must fall, and led away, as so many were, by the expectation of immense wealth in America, had contrived this arrangement, which was probably intended to take place only in the event of his banishment from England. The share that Gustavus appears to have taken in so wild a plan is rather extraordinary, and may expose the whole to some suspicion. It is not clear how this came among the Clarendon papers; but the indorsement runs: "Presented, and the design attempted and in some measure attained by Cromwell, anno 1652." I should conjecture therefore that some spy of the king's procured the copy from Cromwell's papers.

I have since found that Harte had seen a sketch of this treaty, but he does not tell us by what means. Hist. Gust. Adolph. i. 130. But that prince, in 1627, laid before the diet of Sweden a plan for establishing a commerce with the West Indies; for which sums of money were subscribed. Id. 143.

[685] Hardwicke Papers, pp. 402, 411, 417. The very curious letters in this collection relative to the Spanish match are the vouchers for my text. It appears by one of Secretary Conway's, since published (Ellis, iii. 154), that the king was in great distress at the engagement for a complete immunity from penal laws for the catholics, entered into by the prince and Buckingham; but, on full deliberation in the council, it was agreed that he must adhere to his promise. This rash promise was the cause of his subsequent prevarications.

[686] Hardwicke Papers; Rushworth.

[687] Hardwicke Papers, p. 452, where the letter is printed in Latin. The translation in Wilson, Rushworth, and Cabala, p. 214, is not by any means exact, going in several places much beyond the original. If Hume knew nothing but the translation, as is most probable, we may well be astonished at his way of dismissing this business; that "the prince having received a very civil letter from the pope, he was induced to return a very civil answer." Clarendon saw it in a different light. Clar. State Papers, ii. 337.

Urban VIII. had succeeded Gregory XV. before the arrival of Charles's letter. He answered it, of course, in a style of approbation, and so as to give the utmost meaning to the prince's compliments, expressing his satisfaction, "cum pontificem Romanum ex officii genere colere princeps Britannus inciperet," etc. Rushworth, vol. i. p. 98.

It is said by Howell, who was then on the spot, that the prince never used the service of the church of England while he was at Madrid, though two chaplains, church-plate, etc., had been sent over. Howell's Letters, p. 140. Bristol and Buckingham charged each other with advising Charles to embrace the Romish religion; and he himself, in a letter to Bristol, Jan. 21, 1625-6, imputes this to him in the most positive terms. Cabal p. 17, 4to edit. As to Buckingham's willingness to see this step taken, there can, I presume, be little doubt.

[688] Rushworth; Cabala, p. 19.

[689] Parl. Hist. 1375. Both houses, however, joined in an address that the laws against recusants might be put in execution (Id. 1408); and the Commons returned again to the charge afterwards. Idem, 1484.

[690] Rushworth.

[691] See a series of letters from Lord Kensington (better known afterwards as Earl of Holland), the king's ambassador at Paris for this marriage-treaty; in the appendix to Clarendon State Papers, vol. ii. pp. v. viii. ix.

[692] Hardwicke Papers, i. 536. Birch, in one of those volumes given by him to the British Museum (and which ought to be published according to his own intention), has made several extracts from the MS. despatches of Tillieres, the French ambassador, which illustrate this negotiation. The pope, it seems, stood off from granting the dispensation, requiring that the English catholic clergy should represent to him their approbation of the marriage. He was informed that the cardinal had obtained terms much more favourable for the catholics than in the Spanish treaty. In short, they evidently fancied themselves to have gained a full assurance of toleration; nor could the match have been effected on any other terms. The French minister writes to Louis XIII. from London, October 6, 1624, that he had obtained a supersedeas of all prosecutions, more than themselves expected, or could have believed possible; "en somme, un acte très publique, et qui fut résolu en plein conseil, le dit roi l'ayant assemblé exprès pour cela le jour d'hier." The pope agreed to appoint a bishop for England, nominated by the King of France. Oct. 22. The oath of allegiance, however, was a stumbling-block; the king could not change it by his own authority, and establish another in parliament, "où la faction des puritains prédomine, de sorte qu'ils peuvent ce qu'ils veulent." Buckingham, however, promised "de nous faire obtenir l'assurance que votre majesté désire tant, que les catholiques de ce pais ne seront jamais inquiétés pour le raison du serment de fidélité, du quel votre majesté a si souvent ouï parler." Dec. 22. He speaks the same day of an audience he had of King James, who promised never to persecute his catholic subjects, nor desire of them any oath which spoke of the pope's spiritual authority, "mais seulement un acte de la reconnoissance de la domination temporelle qui Dieu lui a donnée, et qu'ils auroient en considération de votre majesté, et de la confiance que vous prenez en sa parole, beaucoup plus de liberté qu'ils n'auroient eu en vertu des articles du traité d'Espagne." The French advised that no parliament should be called till Henrietta should come over, "de qui la présence serviroit de bride aux puritains." It is not wonderful, with all this good-will on the part of their court, that the English catholics should now send a letter to request the granting of the dispensation. A few days after, Dec. 26, the ambassador announces the king's letter to the archbishops, directing them to stop the prosecution of catholics, the enlargement of prisoners on the score of religion, and the written promises of the king and prince to let the catholics enjoy more liberty than they would have had by virtue of the treaty with Spain. On the credit of this, Louis wrote on the 23rd of January to request six or eight ships of war to employ against Soubise, the chief of the Hugonots; with which, as is well known, Charles complied in the ensuing summer.

The king's letter above mentioned does not, I believe, appear. But his ambassadors, Carlisle and Holland, had promised in his name that he would give a written promise, on the word and honour of a king, which the prince and a secretary of state should also sign, that all his Roman catholic subjects should enjoy more freedom as to their religion than they could have had by any articles agreed on with Spain; not being molested in their persons or property for their profession and exercise of their religion, provided they used their liberty with moderation, and rendered due submission to the king, who would not force them to any oath contrary to their religion. This was signed 18th Nov. Hardw. Pap. 546.

Yet after this concession on the king's part, the French cabinet was encouraged by it to ask for "a direct and public toleration, not by connivance, promise, or écrit secret, but by a public notification to all the Roman catholics, and that of all his majesty's kingdoms whatsoever, confirmed by his majesty's and the prince's oath, and attested by a public act, whereof a copy to be delivered to the pope or his minister, and the same to bind his majesty and the prince's successors for ever." Id. p. 552. The ambassadors expressed the strongest indignation at this proposal, on which the French did not think fit to insist. In all this wretched negotiation, James was as much the dupe as he had been in the former, expecting that France would assist in the recovery of the Palatinate, towards which, in spite of promises, she took no steps. Richlieu had said, "donnez-nous des prêtres, et nous vous donnerons des colonels." Id. p. 538. Charles could hardly be expected to keep his engagement as to the catholics, when he found himself so grossly outwitted.

It was during this marriage-treaty of 1624, that the archbishop of Embrun, as he relates himself, in the course of several conferences with the king on that subject, was assured by him that he was desirous of re-entering the fold of the church. Wilson in Rennet, p. 786, note by Wellwood. I have not seen the original passage; but Dr. Lingard puts by no means so strong an interpretation on the king's words, as related by the archbishop. Vol. ix. 323.

[693] Rennet, p. vi.; Rushworth; Lingard, ix. 353; Cabala, p. 144.

[694] "God alloweth (it is said in this homily, among other passages to the same effect) neither the dignity of any person, nor the multitude of any people, nor the weight of any cause, as sufficient for the which the subjects may move rebellion against their princes." The next sentence contains a bold position. "Turn over and read the histories of all nations, look over the chronicles of our own country, call to mind so many rebellions of old time, and some yet fresh in memory; ye shall not find that God ever prospered any rebellion against their natural and lawful prince, but contrariwise, that the rebels were overthrown and slain, and such as were taken prisoners dreadfully executed." They illustrate their doctrine by the most preposterous example I have ever seen alleged in any book, that of the Virgin Mary; who "being of the royal blood of the ancient natural kings of Jewry obeyed the proclamation of Augustus to go to Bethlehem. This obedience of this most noble and most virtuous lady to a foreign and pagan prince doth well teach us, who in comparison of her are both base and vile, what ready obedience we do owe to our natural and gracious sovereign."

In another homily entitled "On Obedience," the duty of non-resistance, even in defence of religion, is most decidedly maintained; and in such a manner as might have been inconvenient in case of a popish successor. Nor was this theory very consistent with the aid and countenance given to the United Provinces. Our learned churchmen, however, cared very little for the Dutch. They were more puzzled about the Maccabees. But that knot is cut in Bishop Overall's Convocation Book, by denying that Antiochus Epiphanes had lawful possession of Palestine; a proposition not easy to be made out.

[695] Collier, 724; Neal, 495; Wood's History of the University of Oxford, ii. 341. Knight was sent to the Gate-house prison, where he remained two years. Laud was the chief cause of this severity, if we may believe Wood; and his own diary seems to confirm this.

[696] Parl. Hist. 877, 395, 410, etc.; Kennet, p. 30; Collier, 740, 743. This historian, though a non-juror, is Englishman enough to blame the doctrines of Sibthorp and Mainwaring, and, consistently with his high-church principles, is displeased at the suspension of Abbot by the king's authority.

[697] State Trials, ii. 1449. A few years before this, Abbot had the 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 other of the servile crew, had the baseness to affect scruples at the archbishop's continuance in his function, on pretence that, by some contemptible old canon, he had become irregular in consequence of this accidental homicide; and Spelman disgraced himself by writing a treatise in support of this doctrine. James, however, had more sense than the antiquary, and less ill-nature than the churchmen; and the civilians gave no countenance to Williams's hypocritical scruples. Hacket's Life of Williams, p. 651; Biograph. Britann. art. Abbot; Spelman's Works, part 2, 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 flatter the king: (see his article in Biograph. Brit. and Aikin, i. 368) and tells us himself, that he introduced Villiers, in order to supplant Somerset; which, though well-meant, did not become his function. Even in the delicate business of promising toleration 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 compliance. This shows that the letter in Rushworth, 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, Matthews.

[698] The bishops were many of them gross sycophants of Buckingham. Besides Laud, Williams, and Neile, one Field, Bishop of Landaff, was an abject courtier. See a letter of his in Cabala, p. 118, 4to edit. Mede says (27th May 1626), "I am sorry to hear they (the bishops) are so habituated to flattery that they seem not to know of any other duty that belongs to them." See Ellis's Letters, iii. 228, for the account Mede gives of the manner in which the heads of houses forced the election of Buckingham as Chancellor of Cambridge, 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.

[699] Those who may be inclined to dissent from my text, will perhaps bow to their favourite Clarendon. He says that in the three first parliaments, though there were "several distempered speeches of particular persons, not fit for the reverence due to his majesty," yet he "does not know any formed act of either house (for neither the remonstrance nor votes of the last day were such), that was not agreeable to the wisdom and justice of great courts upon those extraordinary occasions; and whoever considers the acts of power and injustice in the intervals of parliament, will not be much scandalised at the warmth and vivacity of those meetings." Vol. i. p. 8, edit. 1826.